Law Professor Beats the Odds in Detainee Case

One man has taken on President Bush's handling of detainees and won. Neal Katyal won the historic case of Hamdan v. Rumsfeld at the Supreme Court. Katyal argued that the court should intervene in the military tribunals set up by the president to try accused war criminals at Guantanamo Bay, Cuba.

Copyright © 2006 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP, host:

And I'm Steve Inskeep. Good morning.

Congress and the White House are still deciding how they want to put accused terrorists on trial. The Supreme Court invalidated the Bush administration's system. Among those lobbying now for a system based on the Code of Military Justice is a young lawyer who argued and won the case.

NPR legal affairs correspondent Nina Totenberg has this profile.

NINA TOTENBERG: On the March morning the Supreme Court was to hear the landmark case of Hamdan versus Rumsfeld, Neal Katyal opened his morning paper.

Professor NEAL KATYAL (Professor of law, Georgetown University): On the right side was a teaser about the case, Hamdan case to be heard. And on the left side was, Strange Cries Emanating from Woodley Park-Zoo, and they blamed it on the baby panda. And I said, well actually that was me, my 3:00 a.m. crying because I was about to face the solicitor general of the United States.

TOTENBERG: The 36-year-old Katyal, a professor at Georgetown Law School, was about to make his first argument in the Supreme Court, and his much respected adversary, Paul Clement, was making his 34th.

When Katyal joined the defense team as the chief appellate advocate three years earlier, no one had given him any chance of success and few thought the Supreme Court would even agree to hear the case. But as Katyal's mentor, Yale law Professor Akhil Amar puts it now…

Professor AKHIL AMAR (Professor of Law, Yale University): For this generation, Neal Katyal has become the Thurgood Marshall of his era.

TOTENBERG: In June, the Court, in a historic ruling on executive power, delivered a stinging defeat to the Bush administration - a defeat engineered by Katyal.

Katyal is the son of Indian immigrants, his mother a pediatrician, his late father a chemical engineer. Although a Hindu, he went to Catholic schools then Dartmouth undergrad and Yale Law School, followed by a Supreme Court clerkship. As a law professor, Katyal has participated in writing briefs in some big cases - Bush versus Gore for one - but until this case, his life has largely been in academia, where he's often crossed ideological lines writing articles with some of the leading conservatives of the day.

In the late '90s, Katyal took a two-year detour into government, where, at age 28, he served as a top assistant to the deputy attorney general in the Clinton administration. One of his areas of responsibility was national security. A memo he wrote in 1998 was turned up later by the 9/11 Commission. Retired Colonel Len Holley(ph), the Commission staff member who found the memo, calls it a rare and prescient gem.

Colonel LEN HOLLEY (9/11 Commission Member): 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 injustice. There are many smart people in government, but few had the imagination to think about this threat as being as serious as it turned out to be.

TOTENBERG: And he did.

Col. HOLLEY: And he did.

TOTENBERG: On September 11th, 2001, Neal Katyal was out of government service, back teaching when his wife woke him up with the news of the attack.

Prof. KATYAL: The first words out of my mouth were Bin Laden. You know, my heart sank that it really fit the profile.

TOTENBERG: But when the president announced plans for military tribunals, Katyal was appalled at what he saw as a blatantly illegal and unconstitutional system. The young law professor immediately volunteered his services to the military defense team, among them Lieutenant Commander Charles Swift.

Lieutenant Commander CHARLES SWIFT (Judge Advocate General Corps, U.S. Navy): He was not the aloof academic that we expected.

TOTENBERG: But almost everyone Katyal knew tried to discourage him. His mentor, Prof. Amar, told him the case was, quote, a loser, and that it would harm his career, eroding his stellar national security credentials.

Prof. AMAR: And he said, you know, you're right about all of that. But I believe in the rule of law, I think what's going on is not lawful, and no one else is willing to take on this case. And so it's just my obligation as a lawyer.

TOTENBERG: At home, the decision wasn't popular either, almost ruining a big family Thanksgiving dinner.

Prof. KATYAL: My mom said, oh, you should tell Auntie so-and-so about what you've been doing, and so I told her. And her fork dropped and she said, you're doing what?

TOTENBERG: For Katyal, the case was also a learning experience, his first exposure to the professionalism of the military legal system. And he eventually changed his mind on a key point, agreeing that the trials should be in regular military courts not civilian courts, as he had previously argued. Commander Swift.

Lt. Cmdr. SWIFT: He had to change. He had to accept a different argument after having been convinced and writing a law review article. And Neal Katyal did that.

TOTENBERG: For a year and a half, Katyal worked with the military lawyers positioning the issue so that the Supreme Court would grant review. Although he knew he would take a PR hit in a case involving Osama bin Laden's driver, Katyal chose Salim Hamdan's case as the vehicle because there was no evidence Hamdan had taken up arms.

Finally, on November 6, 2004, Katyal met his client for the first time.

Prof. KATYAL: Hamdan kicked everyone out of the room except me and the translator, and I thought I was going to be yelled at.

TOTENBERG: Instead, Hamdan gave Katyal a few prized sweets, a date and some raisins.

Prof. KATYAL: He literally gave me the only possessions he had and said thank you for doing this. And then he asked me why are you doing this? I said, I'm doing it for you because my parents came from India to America because of a simple reason: Because America doesn't treat people differently because of where they come from.

We fought a civil war in part about the idea that all people are guaranteed certain rights, and chief among those is a right to a fair trial.

TOTENBERG: For the next year and a half, Katyal would be the major domo of the case, coordinating some 1,000 people working on it in one form or another, all of them wanting a piece of Katyal's time. No week went by without at least 3,500 e-mails showing up on Katyal's Blackberry.

He not only wrote the main brief, he arranged for some 40 separate friend of the court briefs to be filed and coordinated so that different points were made in each one. Briefs not just from human rights groups but from retired military brass, historians, even 400 British Parliament members. And when there was a congressional attempt to strip jurisdiction from the courts, Katyal launched a counter campaign.

A core group of 50 students and high-level lawyers of all political stripes were Katyal's war counsel. One of those, Supreme Court advocate Tom Goldstein, says the task facing Katyal was like herding cats in the middle of an avalanche.

Mr. TOM GOLDSTEIN (Co-Founder, Goldstein & Howe): You've got a million different pieces of the puzzle in the middle of a torrential storm in which you can't see straight, and you can't possibly hope to accomplish any one thing in a day. And the clock is always ticking because there are 1,000 people trying to get in touch with you.

TOTENBERG: Preparing for the argument, Katyal made a list of the lawyers who intimidated him most all over the country and flew out to do dry run arguments in front of them. In all, he did 15 moot court arguments. The issues were incredibly complex, ranging from military and constitutional law to international law.

And Katyal had to resolve conflicting opinions on how to frame the arguments. By all accounts, he was invariably courteous, patient and driven. Commander Swift:

Lt. Cmdr. SWIFT: It is December 25th. I am on the way to meet my wife to have dinner with my parents. We have just walked into the restaurant when my cell phone starts buzzing. It is Neal. Neal has read a section of my argument and is no longer pleased with it. In fact, he feels it should be rewritten. Now would be a good time.

TOTENBERG: In the end, Katyal defied the odds, winning on almost every major point. Even those on the other side are full of admiration for the way he conducted the case. Former Bush White House Associate Counsel Bradford Berenson:

Mr. BRADFORD BERENSON (Former White House Associate Counsel): That's what makes his advocacy in this case heroic, is that he took a view of the law and he pushed it all the way through the court system. He rolled the boulder all the way up to the top of the hill and got the highest court in the land to agree with him.

TOTENBERG: Katyal's victory was not without some personal cost. For over a year he slept no more than four hours a night as he tried to be husband, father, teacher and Hamdan case honcho. And he spent $40,000 of his own money on the case. But he says:

Prof. KATYAL: It's something I had to do, and I feel, you know, enormously privileged to be able to do it.

TOTENBERG: Nina Totenberg, NPR News, Washington.

INSKEEP: You can read the history of the Supreme Court case and hear the oral arguments before the Supreme Court by going to npr.org.

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'Hamdan v. Rumsfeld': Path to a Landmark Ruling

Salim Ahmed Hamdan

Guantanamo detainee Salim Ahmed Hamdan, seen in an undated photo, was Osama bin Laden's driver in Afghanistan. He was captured in 2001 by the Northern Alliance and turned over to U.S. troops. Getty Images hide caption

itoggle caption Getty Images

The Supreme Court's Ruling

In a 5-3 vote, the Supreme Court ruled on June 29, 2006, that President Bush overstepped his authority in ordering military tribunals for Guantanamo detainees. The court ruled that the tribunals violate U.S. laws and the international Geneva Conventions. Read the court's ruling:

Arguments Before the Court

The Supreme Court heard the case of Salim Hamdan, Osama bin Laden's one-time driver, in March 2006.

Salim Ahmed Hamdan appears at a preliminary hearing. i i

Salim Ahmed Hamdan, second from left, appears with appointed council Lt. Cmdr. Charles Swift, third from left, during a preliminary hearing at Guantanamo Bay, Cuba, Aug. 24, 2004. Illustration by Art Lein/Getty Images hide caption

itoggle caption Illustration by Art Lein/Getty Images
Salim Ahmed Hamdan appears at a preliminary hearing.

Salim Ahmed Hamdan, second from left, appears with appointed council Lt. Cmdr. Charles Swift, third from left, during a preliminary hearing at Guantanamo Bay, Cuba, Aug. 24, 2004.

Illustration by Art Lein/Getty Images
Neal Katyal and U.S. Navy Lt. Cmdr. Charles Swift appear outside the Supreme Court building. i i

Attorney Neal Katyal, left, and U.S. Navy Lt. Cmdr. Charles Swift, who represented Guantanamo Bay detainee Salim Ahmed Hamdan, speak after the Supreme Court ruled against proposed military tribunals June 29, 2006. Joshua Roberts/Getty Images hide caption

itoggle caption Joshua Roberts/Getty Images
Neal Katyal and U.S. Navy Lt. Cmdr. Charles Swift appear outside the Supreme Court building.

Attorney Neal Katyal, left, and U.S. Navy Lt. Cmdr. Charles Swift, who represented Guantanamo Bay detainee Salim Ahmed Hamdan, speak after the Supreme Court ruled against proposed military tribunals June 29, 2006.

Joshua Roberts/Getty Images

In the jargon of the Supreme Court, we talk about "landmark cases." Some, of course, are more landmark than others. But by any yardstick, the June 2006 ruling in Hamdan v. Rumsfeld was one for the history books.

Hamdan was the case in which the high court invalidated the system set up by President Bush to try accused war criminals at Guantanamo Bay, Cuba. The court's 5-3 decision is widely seen as the most important ruling on executive power in decades, or perhaps ever.

But cases like this do not materialize out of thin air, and the Hamdan case, like Brown v. Board of Education, was carefully nurtured, with the defense lawyers facing a constant stream of difficult issues. A wrong decision at any point could have ended up aborting the case.

It all began in 2003 when a handful of detainees at Guantanamo were designated for possible prosecution as war criminals. They were to be the first of what the Bush administration anticipated would be a continuing series of prosecutions.

Guilt as a Condition of Defense

If convicted, the defendants could be subject to the death penalty. Although no formal charges were brought immediately, the first group of six was, upon designation, moved into isolation — what in a regular prison would be called solitary confinement.

As the year drew to a close, charges still had not been brought, but one of the military defense lawyers, Navy Lt. Cmdr. Charles Swift, got a letter appointing him as counsel for a Yemeni citizen named Salim Ahmed Hamdan. Hamdan, who had served as a driver for Osama bin Laden in Afghanistan, was captured by the Northern Alliance and turned over to U.S. troops.

There was just one hitch to Swift's appointment as defense counsel: The letter told Swift that his access to his client was conditioned on his negotiating a guilty plea. Swift thought that was an unethical condition.

He immediately called Georgetown law professor Neal Katyal, who by then was on board as the civilian lawyer for the military defense team. Katyal, 33, had volunteered his services and been embraced by the defense team. He had worked for two years in the Clinton Justice Department on national security issues, so it was easy to renew his security clearance.

More importantly, Katyal had been an early academic critic of the Bush military tribunals. He had written, thought about, and testified on the issue. So, he was the perfect point man for developing a legal strategy aimed ultimately at Supreme Court review.

The Decision to Fight

Katyal and Swift were worried that if Swift went to talk to Hamdan and Hamdan didn't want to plead guilty, Swift would be barred by the military from seeing his client again, and would be unable to represent him in court. To avoid that, Katyal drafted a legal document for Swift to take with him for his first meeting with Hamdan.

Swift took the document to Guantanamo and explained the options to his new client. Hamdan could plead guilty or he could fight. If Hamdan chose to fight, he might not see Swift again, the commander told him, "but understand I will start fighting and keep fighting for you the entire time."

Hamdan said he didn't want to plead guilty, and signed the document Katyal had drafted: an authorization for Swift to file a legal challenge on his behalf.

Finding Friends in Seattle

Swift filed a motion demanding a speedy trial and was promptly informed that Hamdan had no right to one. Swift then prepared to file a lawsuit as Hamdan's "next friend" in federal court in Seattle, challenging the military tribunal system.

Swift and Katyal chose Seattle because they wanted to get away from the two federal appeals courts where the Bush administration loved to litigate — the 4th Circuit in Virginia and the District of Columbia Circuit in the nation's capital. Both of those courts were populated with Bush and Reagan appointees who had consistently sided with the administration on national security issues.

It made sense to file in Seattle. It was Swift's legal residence because it was where he lived when he joined the Navy. But neither Swift nor Katyal was licensed to practice law there.

Just as Katyal was pondering approaching some law professor in Seattle to act as local counsel, one of his former law students called him about something else. The former student was at Perkins Coie, one of Seattle's leading law firms. By that night, the managing partner of the firm was on the phone with Katyal, pledging major help, including partners who would work on the case for the next three years. Katyal notes that at the time, most law firms were steering clear of Guantanamo cases for fear of being called unpatriotic. Perkins Coie, he says, was particularly brave in volunteering to help so early.

The defense team for the war crimes defendants by then had settled on Hamdan's case as the one they wanted to use in challenging the military tribunals. Swift focused on Hamdan after watching a documentary about the Nuremberg trials in which he noticed that Adolph Hitler's driver was not prosecuted as a war criminal.

"They didn't prosecute him. They interviewed him," notes Swift, adding that, "in the law of war, the idea is to charge the principals, not the foot soldiers, unless of course, the foot soldiers are lining up civilians and shooting them."

Katyal knew the defense would take a public-relations hit for defending Bin Laden's driver, but he says that "Hamdan stood out as being the one who had done nothing bad himself, besides being the driver to a bad guy." That, says Katyal, contrasted with the records of others who had "actually picked up guns, shot people, and the like."

Detention Takes Its Toll

As the months dragged on, though, Hamdan, who remained in solitary confinement, went into a spiral of depression. He wasn't on a hunger strike, says Swift, but Hamdan was so depressed he stopped eating and drinking, and his guards became alarmed at his deterioration.

Swift, despite his fears that he would lose access to his client, had not been cut off, and he now got hold of a photograph of Hamdan's children in Yemen and brought it to the prison. Upon seeing the photo, Hamdan "just broke down sobbing," says Swift. Knowing Hamdan was himself an orphan, Swift asked his client, "How can you leave them" the way you were left? And suddenly, Hamdan reached for a drink of water.

While all this was going on, the Supreme Court announced that it would decide whether the other detainees at Guantanamo — those not charged as war criminals — had a right to challenge their detentions in court.

The Hamdan lawyers saw this as an opportunity, and they notified their superiors of their intention to file a friend-of-the-court brief in the regular detainees' Supreme Court case. If their superiors wanted to bar the brief, they could, but the letter to the military higher-ups cc'ed Neal Katyal, the defense team civilian lawyer, who was not in the chain of command. That cc, says Katyal, was designed to let the powers-that-be know that "there would be repercussions if they decided to gag the lawyers."

The Rules Change

According to Bush administration sources, some administration officials wanted to veto the brief, and a decision on the matter went all the way up to the White House. But in the end, officials there decided it wasn't worth the hit they would take in the press, and the brief was filed, amid considerable fanfare.

The filing of that friend-of-the-court brief, says Swift, "changed the rules forever. We'd been told we would never talk to the press, we would never be seen. We would simply sit there, take it, and then it would be over. It was to be a one-way show." The brief," he says, "gave us an opportunity to break out."

In June 2004, the Supreme Court ruled that the regular detainees could go to federal court to challenge their detention, and for technical reasons, the Hamdan case was moved back to Washington, D.C.

Five months later, Katyal went to Guantanamo to meet his client for the first time. Hamdan, who comes from a culture of gifts, gave the lawyer what Katyal calls "literally the only possessions he had," a few prized sweets — a date and some raisins.

He had just one question for the lawyer: "Why are you doing this?"

As Katyal recounts the meeting, he told Hamdan: "I am doing this for you because my parents came from India to America" for one simple reason, "America doesn't treat people differently because of where they come from. We fought a civil war in part about the idea that all people are guaranteed certain rights, and chief among those is a right to a fair trial."

Days later, federal Judge James Robertson struck down the military tribunals as unconstitutional. At a pre-trial hearing for Hamdan at Guantanamo, there was "mayhem," in Katyal's words, as news of the decision filtered in. The military judge abruptly called a halt to the proceedings.

The victory for the defense, however, was short lived. A federal appeals court panel that included then-Judge John Roberts (who later became the chief justice) overturned the decision eight months later.

Now the defense was fully focused on persuading the Supreme Court to accept the case for review. In August 2005, Katyal filed a brief in the Supreme Court contending that the rules the president had established for the tribunals were blatantly unfair and unconstitutional.

In response, the Bush administration changed some of the rules — for example, to allow evidence obtained by "coercion" but not "torture." Katyal then wrote a reply brief contending that these very changes proved his point: The rules were not rules at all, but an ever-moving target, a system not approved by Congress, that worked at the whim of the president.

The Senate Steps In

On Nov. 7, 2005, the Supreme Court announced it would hear Hamdan's case. Three days later, Sen. Jon Kyl (R-AZ) introduced legislation he had been working on with the administration to strip the courts of jurisdiction in the Guantanamo cases. The legislation quickly passed in the Senate, with the aid of Sen. Lindsey Graham (R-SC).

The defense team, led by Katyal, went into high gear to get the language in the bill changed to exempt pending cases, so that the Hamdan case would stay alive. The Senate did in fact change the language in the bill, and now there was another issue before the court — whether Congress had intended to keep the case alive.

Getting Ready

In the months that followed, Katyal, who had never argued a case before the Supreme Court, devoted thousands of hours to preparation. He made a list of the lawyers across the country who intimidated him the most, and flew out to do dry runs in front of them. In all, he did 15 practice sessions.

At the same time, he was writing not just his own brief, but coordinating some 40 friend-of-the-court briefs filed by human-rights organizations, groups of high-ranking retired military officers, diplomats, historians, and conservative as well as liberal legal scholars. Such was his attention to detail that he ran a videotape of the Senate debate on stripping jurisdiction and was able to tell the Supreme Court which statements were made during the floor debate, and which ones were inserted later, after the debate was over, to try to give the debate a different gloss.

In all, about 1,000 lawyers and law students worked on various parts of the case, with Katyal acting as major-domo, listening, parsing and weighing divergent views on how to frame the legal arguments.

The work was so fast and furious that for well over a year, Katyal — a husband and father — never got more than four hours sleep a night. And no week passed without at least 3,500 e-mails. Even his own pocketbook was tapped. He spent $40,000 of his own money on the case.

It all paid off on June 29 with Katyal and Swift in the courtroom, when the Supreme Court sided with the defense on almost every point.

It was a stunning rebuke to the president. But Katyal doesn't see it that way. He commends both the military and the administration for letting him and Swift do their jobs. "In some other country," Katyal observes, "we might have been shot."

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