Lawyers Launch Initiative To Challenge Executive Power

Aug 9, 2017
Originally published on August 9, 2017 6:38 am
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RACHEL MARTIN, HOST:

Military officers, members of Congress and presidents all have to pledge to defend the U.S. Constitution. Now, some top national security lawyers say they're going to do so, too. They're starting a project designed to push back against certain government policies on immigration and criminal justice and to defend protections for whistleblowers. NPR's Carrie Johnson has more.

CARRIE JOHNSON, BYLINE: Until a few months ago, Mary McCord and Joshua Geltzer spent their time defending the power of the executive branch. McCord ran the Justice Department's National Security Unit prosecuting terrorists, and Geltzer helped direct counterterrorism initiatives at the National Security Council. Now, they're joining forces to rein in some of that executive power.

JOSHUA GELTZER: I think we're here because we think there's public service to be done by standing up for the constitution right now.

JOHNSON: Joshua Geltzer explains.

GELTZER: There are lines that we worry about being crossed, that we think we see being crossed. And the fact that we have worked on these issues and, at times, tried to articulate where the line is from the other side gives us a real perspective and hopefully a credibility.

JOHNSON: Along with former acting Solicitor General Neal Katyal they're forming the Institute for Constitutional Advocacy and Protection at Georgetown Law School. The institute launches today with a court filing about tough bail demands in Harris County, Texas. That county locks up defendants in misdemeanor cases if they can't afford bail. But people who have the money to pay get released. It's a practice that McCord calls unconstitutional and bad for public safety. She felt so strongly about the issue that she spent most of her vacation after leaving DOJ writing and thinking.

MARY MCCORD: Being part of a startup - it's fun, and you're dedicated to it. And it doesn't really matter if you're on the beach. You go ahead and you make the time for that conference call and you start sketching out ideas because it's exciting and it's interesting and it's important.

JOHNSON: Eventually, the institute plans to grow to eight or 10 lawyers. They'll get help with research and writing from Georgetown Law students. The legal model is a major national security case from the George W. Bush era. It's called Hamdan v. Rumsfeld. In that case, with the help of Georgetown students, Neal Katyal eventually persuaded the Supreme Court that military commissions for detainees at Guantanamo Bay needed to follow the Geneva Conventions. Mary McCord says the new institute will be watching for more overreach when it comes to national security.

MCCORD: What we don't ever want to see is national security used as an excuse for some other government action, when in fact the national security equities or national security interests don't justify that action.

JOHNSON: To McCord, that's already happening. She's talking about President Trump's travel ban for visitors from six majority Muslim countries. Her colleague at the new institute, Katyal, is representing the state of Hawaii, which is challenging the travel ban. The Supreme Court will hear that case in October. Carrie Johnson, NPR News, Washington.

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