"The president could essentially try people at Guantanamo Bay, and he could write all the rules for the trial. He would be able to pick the prosecutors, pick the defendants, pick the judges, and hand-pick the appeals panel," Katyal said.

Katyal's areas of expertise include constitutional law, particularly presidential powers, national security law, criminal law and cyber-law.

Hamdan v. Rumsfeld

Salim Hamdan was Osama bin Laden's personal driver and bodyguard. He was captured in Afghanistan in November 2001 and brought to a U.S. military prison at Guantanamo Bay in June 2002. He was one of five prisoners who were the first to be tried in front of a military commission.

Two months after Sept. 11, 2001, President George W. Bush signed an executive order authorizing the use of military commissions instead of civilian courts when prisoners were considered "unlawful combatants." "Unlawful combatants do not have any rights under the Geneva Convention," Defense Secretary Donald Rumsfeld said.

Katyal looked at the executive order and said he thought it was a joke. He walked into his class (at the time, he was a visiting professor at Yale Law School) and said, "I have found something that is truly unconstitutional." He became obsessed with the legal theory surrounding Bush's military commissions, and wrote an article in the Yale Law Journal with Harvard Law Professor Laurence Tribe arguing that the military order jeopardized the separation of powers.

In front of the U.S. Senate in November 2001, Katyal testified that Bush's executive order contained "serious constitutional flaws." He said the danger was not in suspending the rights of prisoners, but that the president issued the order unilaterally.

"Throughout history, there have been times when this country has had to dispense with civil trials, with other protections in the Bill of Rights, and with the rules of evidence," Katyal said.

"Those circumstances have been rare, carefully circumscribed, and never unilaterally defined by a single person. A tremendous danger exists if the power is left in one individual to put aside our constitutional traditions and protections when he decides the nation is in a time of crisis."

In May 2003, Katyal emailed Col. William Gunn, the lead defense counsel for the tribunals, and said he wanted to help. He and the rest of the defense team spent the rest of the year devising a strategy to challenge the constitutionality of the tribunals, though they didn't have a client for months. They chose Hamdan because there was no evidence bin Laden's driver had done any fighting against the U.S. after the 2001 invasion.

Katyal first argued Hamdan's case in front of the U.S. District Court for the District of Columbia in October 2004. He won. He lost on appeal in front of a three-judge panel at the U.S. Court of Appeals for the District of Columbia, which included future U.S. Supreme Court Chief Justice Roberts.

Katyal wrote the cert petition to get the case heard in front of the U.S. Supreme Court. He also coordinated the work of 1,000 other people who contributed, organized the writing of 40 amicus briefs and prepared for oral arguments (his first in front of the Supreme Court) with 15 moot court practice sections. Most people thought he would lose, including his mentor, Amar.

On June 29, 2006, the 5-3 ruling came down overwhelmingly in favor of Hamdan and his legal team. The decision, written by Justice John Paul Stevens, found the military commissions were flawed primarily because the president acted unilaterally.

But the Supreme Court struck down each of the administration's arguments and said Common Article 3, a provision of the Geneva Conventions that guarantees troops a fair trial and protection from torture, applied to detainees at Guantanamo Bay.

President Bush vowed to work with Congress to "find a way forward," and in October 2006, Congress passed the Military Commissions Act of 2006, which was later found unconstitutional in Boumediene v. Bush for being a suspension of habeas corpus.

National Security

When Katyal appeared on The Colbert Report in July 2006, Stephen Colbert asked him, "How old were you when you said to yourself, 'I am taking this country down?'" What was clearly a joke on might be considered true by some who are unhappy about Katyal's decision to defend Osama bin Laden's driver. Katyal said discussions about his work ruined Thanksgiving dinner one year.

But from his time as Justice Department national security adviser, Katyal was something of a national-security wonk.

In 1998, he wrote a memo detailing the military and legal response to Osama bin Laden's 1998 embassy bombings in Kenya and Tanzania. "Looking at it through 9/11 eyes, it turned out to be a very remarkable analysis of the terrorist threat that called for a very assertive role for law enforcement and justice," said retired Col. Len Holley, who was on the 9/11 Commission and found the memo.

In 2006 congressional testimony, Katyal said his views tended to align with those who believe in a "unitary executive" during a time of crisis and those who believed in tough laws that help prosecutors.

And he argued that the courts should defer to the president "overwhelmingly." Katyal called his decision to file a suit against the administration in Hamdan "the hardest professional decision I have ever faced."

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