At 10 a.m. on June 29, Chief Justice John Roberts leaned back in his chair, swiveled to his right and announced that Associate Justice John Paul Stevens would read the opinion of the Court in Hamdan v. Rumsfeld, the U.S. Supreme Court's final decision of the 2006 term. The courtroom was packed, the Solicitor General and his deputies were in attendance, and representatives of the media were poised to report the much-anticipated ruling to the nation and the world.
On short notice, we had flown from Seattle overnight - via Las Vegas - in order to be present for this crowning moment, the culmination of more than two years of intensive effort that led from the U.S. District Court in Seattle to the highest court in the land.
A Challenge to Executive Authority
The case began in April 2004 when we filed a petition for writ of habeas corpus in the Western District of Washington on behalf of our client, Salim Hamdan, a Yemeni citizen with a fourth-grade education. Since the late 1990s, Hamdan had worked in Afghanistan as a driver for Osama bin Laden, shuttling agricultural workers from a nearby village to a farm owned by bin Laden.
Following the September 11 attacks and the introduction of U.S. forces into Afghanistan, Hamdan was apprehended - while driving to his house in Kandahar - by fighters loyal to an Afghan warlord. He was transferred to the custody of the U.S. military in return for a $5,000 bounty.
After being interrogated in Afghanistan, Hamdan was transferred to Guantanamo Bay Naval Station where he was detained for many months without charges being filed, without an opportunity to contest his detention and without legal counsel. By the time Justice Stevens delivered the opinion of the Court, Hamdan had spent almost four years at Guantanamo, at least 10 months of which were in solitary confinement.
The case came to us in a roundabout way, to say the least. We were contacted by Neal Katyal, a professor at Georgetown University Law Center, through his former student and our fellow lawyer, David East, now with the McNaul Ebel firm. Professor Katyal and Hamdan's recently appointed military defense counsel, Lt. Cdr. Charles Swift of the U.S. Navy (Ed. note: Please see story on Page 22), intended to challenge Hamdan's detention. They were interested in filing the action in the Ninth Circuit, and doing so in the name of Lt. Cdr. Swift as "next friend" for the incommunicado Hamdan. The basis for personal jurisdiction was the fact that Swift, a graduate of the University of Puget Sound Law School, was a legal resident of Washington, his last place of residence before entering active military service.
We evaluated the case just as we would any other case for which our firm's pro bono services are sought. Quite apart from the legal merits, we were immediately impressed by Swift's courage and integrity as a career military officer challenging the actions of the Commander-in-Chief and the Secretary of Defense during a time when U.S. forces were engaged against an enemy said to include Hamdan.
After considering the legal merits and obtaining approval from the firm's pro bono committee, we informed firm management of the potential visibility that the case could attract, and put the finishing touches on the first petition for writ of habeas corpus that any of us ever had filed. As filed, Hamdan's petition challenged the authority of the President to try him before a military commission.
Commissions are tribunals of military officers traditionally used in combat zones or occupied territories to try spies and others charged with violations of the laws of war. We maintained that the military commission violated both domestic and international law by, among other things, depriving Hamdan of the right to be present at his own trial, denying him the protections afforded by the Geneva Conventions, and (after he was charged - belatedly - in July 2004) charging him with an alleged "war crime" - conspiracy - unrecognized as a violation of the laws of war.
When we filed, we did not know whether the case would be over in a month (based on jurisdictional issues) or go the distance, but we soon learned that the Government appreciated the potential impact of the case when the Solicitor General immediately appeared on behalf of Defendants Bush and Rumsfeld at the District Court level.
Over the following two years, Perkins Coie contributed more than 5,000 hours of pro bono time and effort to the case. We regarded it, in the words of Chief Judge Robert Lasnik at an early hearing in the matter, as service in "the greatest tradition of the bar and the country." Indeed, Judge Lasnik also observed at that hearing that "what makes this country so great is not just that we have the most military power or the most wealth, but we have a system in the federal courts where the most vulnerable and the most powerless still can get into the courthouse and have their cases heard." We believed that then, and we believe it with even greater conviction today.
In the Trenches
As things progressed, however, there were plenty of times when we came to doubt how successful we might be. The Government vigorously advanced every conceivable argument to prevent a federal court from even reaching the merits of Hamdan's case.
Upon transfer of the case to the District of Columbia, we were admitted pro hac vice and remained the primary attorneys assisting Lt. Cdr. Swift and Prof. Katyal on all aspects of the case. One result of our filing came in July 2004, when the Government at last charged Hamdan, relieving it of the awkward prospect of arguing to a federal judge that solitary confinement without charge was unobjectionable.
We opposed the Government on every point in its multi-pronged attack to dismiss Hamdan's petition, assisted in the briefing and participated in oral argument before Judge James Robertson. In October 2004, on the eve of oral argument - in what would become a pattern of constantly shifting rules, conditions and findings - the Government filed a "Notice of Change of Circumstances," informing the District Court that Hamdan had been removed from solitary confinement and, therefore, the court need not be concerned about the circumstances of his confinement.
In early November 2004, Judge Robertson struck down the military commission as outside the authority of the President and inconsistent with the Uniform Code of Military Justice (UCMJ) and the laws of war, of which the Geneva Conventions form a part. The proceedings of the military commission at Guantanamo were dramatically halted in the midst of a pre-trial hearing, as a uniformed officer handed a note to the presiding officer, who announced the decision of the District Court and promptly adjourned the proceedings.
D.C. Circuit: A Setback
The Government sought appeal on an expedited basis. The D.C. Circuit granted the request, which meant that our opposition brief was due four days after Christmas, on December 29, 2004. We sought certiorari before judgment in the Supreme Court while the appeal was pending, but the Court demurred, so we steeled ourselves for a busy holiday season.
Our panel proved as formidable as our briefing schedule. It was made up of two judges generally considered conservative and deferential to government authority, Judge Raymond Randolph and Judge Stephen Williams. The third judge was relatively new to the D.C. Circuit, but destined to spend only six more months there - soon-to-be Chief Justice John Roberts. Nonetheless, we believed that Judge Robertson's opinion was soundly reasoned and stood a fair chance of being upheld. Moreover, as would be the case in the Supreme Court, our efforts in the D.C. Circuit were assisted by an enormous outpouring of amici support: 17 amicus briefs were filed on behalf of Hamdan.
Professor Katyal and Lt. Cdr. Swift argued the case on April 7, 2005. On July 15, in a terse 18-page opinion, the panel reversed Judge Robertson. Reaching the merits of Hamdan's challenge to the President's authority to convene the military commission and its compliance with the UCMJ, the panel followed the Government's arguments in lockstep. It demurred on the challenge raised under the Geneva Conventions, claiming that the treaty was not "judicially enforceable."
As we immediately began to prepare our petition for certiorari, the ground continued to shift underneath us. Over the summer of 2005, Justice Sandra Day O'Connor announced her retirement and Chief Justice William Rehnquist passed away, to be replaced by Justice Samuel Alito and Chief Justice Roberts. Although Chief Justice Roberts recused himself at the Supreme Court, that still left us with the likely prospect of a 4-4 tie, which under Court rules meant the D.C. Circuit would be affirmed. After three months of nervous waiting while action on the cert petition was repeatedly deferred, certiorari was granted on November 7, 2005. Once again, our holidays were going to be spent briefing the case.
If dealing with a changing court composition and a monumentally complex case were not enough, the Government had one last surprise for us. In early December, rumblings began to emerge from Congress of a proposal to strip the federal courts of jurisdiction in cases coming out of Guantanamo. The writ of certiorari we had worked so hard to obtain was now being threatened by jurisdiction-stripping legislation, the likes of which had not been passed by Congress since the Civil War.
On December 30, in a fitting end to a difficult year, that threat became a reality. Congress passed and President Bush signed the Detainee Treatment Act (DTA), which purported to deprive most federal courts, including the Supreme Court, of jurisdiction in Guantanamo litigation. Fortunately for Hamdan, during the DTA's passage some of its more pernicious aspects were tempered, leaving us room to argue that it did not cover his case. Predictably, the Government adopted a more aggressive interpretation, and almost immediately moved to dismiss our case on the basis of the DTA. The Court did not decide the motion, instead adding 30 additional minutes to oral argument to address the DTA's effect on our case.
Oral Argument
Heading into oral argument, all signs pointed toward a rough 90 minutes. Professor Katyal, who argued the case in full, was up to the challenge. In the weeks leading up to argument, he participated in more than 20 moot courts, the first one occurring in our Seattle office in February even before we received the Government's brief. We spent nearly two weeks in D.C. prior to argument helping prepare, probe and tailor Prof. Katyal's presentation. No efforts were spared and no research question went unanswered.
The hard work paid off. Professor Katyal performed brilliantly before an engaged - and, at times, enraged - Court. Justice Souter in particular pressed Solicitor General Paul Clement on the Government's position that the Court could consider the DTA an "accidental" suspension of the writ of habeas corpus. Calling suspension of the writ "the most stupendous act that the Congress" can take, Justice Souter came down hard on General Clement.
While we felt encouraged that the Court would find a way to retain jurisdiction, oral argument provided little clue as to how the case might come out on the merits. As we left D.C., we were proud of Prof. Katyal's presentation, but without much insight into what results his performance might yield.
Victory
When we heard Chief Justice Roberts call the opinion for Justice Stevens, and the word "reversed" came from the bench, exhaustion mixed with elation - mixed with determination to quickly grasp the full scope of the ruling - combined to create one of the most meaningful moments in our collective 40 years of practice. In the hours and days to come, we came to understand not only that we had prevailed, but that the Court had crafted a far-ranging and broad opinion that vindicated the principles that motivated us to take on the case.
The Hamdan case vigorously reaffirmed that, in the words of the Court, "the Executive is bound to comply with the Rule of Law." We are privileged to have had the opportunity to stand beside Lt. Cdr. Swift, Prof. Katyal and the legion of fine attorneys and experts contributing as amici, to have helped the Court apply that principle in this case.
