This year’s winner of the King County Bar Association's Outstanding Lawyer Award is the legal defense team that represented Salim Hamdan in the Hamdan v. Rumsfeld case decided by the U.S. Supreme Court in June 2006. Hamdan’s appointed military counsel, Lt. Cmdr. Charles Swift, is a Seattle University Law School graduate. The other members of the defense team are: Professor Neal Katyal of Georgetown University Law Center; David East of McNaul Ebel Nawrot & Helgren (a former student of Professor Katyal and an associate at Perkins Coie when the Hamdan case began); and Perkins Coie attorneys Harry Schneider, Charles Sipos and Joe McMillan.
Salim Hamdan is a Yemeni citizen who was a driver for Osama Bin Laden in the 1990s. Hamdan was captured by militia forces in 2001 and turned over to the U.S. military. In 2002, he was imprisoned in Guantánamo Bay, Cuba. More than a year later, President Bush found Hamdan eligible for trial by military commission on unspecified charges.
In 2004, the Hamdan defense team filed a writ of habeas corpus. The team stated in an article in the King County Bar Bulletin that it was “the first petition for habeas corpus that any of us ever had filed.” As described in the U.S. Supreme Court Syllabus, the petition asserted (among other things) that the military commission lacked authority to try Hamdan because neither congressional act nor the common law of war supported trial by the commission for conspiracy; and that the procedures adopted to try Hamdan violated basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.
Two long years of legal maneuvering followed. The case was transferred to the District of Columbia and Hamdan finally was charged with conspiracy “to commit ... offenses triable by military commission.” The District Court granted habeas relief and stayed the commission’s proceedings, because, among other things, the commission did not comply with the Third Geneva Convention and the Uniform Code of Military Justice (UCMJ).
But the case did not end there. The D.C. Circuit reversed and ruled that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable. Supreme Court review was granted in November 2005. This reversal required quick work on the part of the Hamdan defense team over the holidays to prepare the case, which was argued by Professor Katyal in March 2006.
In the meantime, new federal laws regarding detainees and changes to the composition of the Supreme Court presented challenges to the Hamdan defense team. Nevertheless, on June 29, 2006, the Supreme Court reversed the D.C. Circuit and remanded in a historical decision finding, among other things, that the military commission’s structure and procedures violated the Geneva Conventions and the UCMJ by not allowing Hamdan to see or hear the evidence against him.1
The defense team took a position that put them at odds with the U.S. government and the president in high-profile litigation. Perkins Coie invested more than 5,000 hours of pro bono time in the case. Lt. Cmdr. Swift was denied a promotion and forced to retire under the Navy’s “up or out” system after the case ended. An assistant secretary of defense urged corporations not to use law firms that represented detainees, though he subsequently apologized for his remarks after public outcry.
By bestowing this award, the KCBA honors both the hard work and courage shown by the Hamdan defense team in handling a difficult case.
This article includes information from the U.S. Supreme Court Syllabus for Hamdan v. Rumsfeld, No. 05-184, and “PC’s Gitmo Team Hits the Heights: ‘The Greatest Tradition of the Bar and the Country,’” by Harry Schneider, Joe McMillan and Charles Sipos, which was published in the King County Bar Bulletin in August 2006.
1The United States filed charges of conspiracy and providing support for terrorism against Hamdan on May 10. Hamdan became the third Guantánamo Bay detainee to be charged under a new set of rules for the military commissions, which were signed by President Bush last year after the Supreme Court’s ruling rejected the previous system. Hamdan is expected to be arraigned in early June.
