ROBERT SIEGEL, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
Among the questions facing Congress as it returns from summer recess is how to try accused war criminals who are being held at Guantanamo Bay. In a landmark ruling at the beginning of the summer, the Supreme Court struck down the system that was set up by President Bush. That decision has been widely viewed as the most important ruling on executive power in decades.
NPR's Nina Totenberg has put together this anatomy of the case and how it rose from the battlefields of Afghanistan.
NINA TOTENBERG: In the aftermath of 9/11 and the war in Afghanistan, President Bush created a system for trying those captured on the battlefield who were deemed to be war criminals. If convicted, the defendants could be subject to the death penalty.
In 2003, the Pentagon established two offices, one to prosecute and one to defend the accused. Although a handful of detainees were designated as potential targets and moved into isolation, no charges were actually brought for months.
In December 2003, Navy Lieutenant Commander Charles Swift was appointed by letter to represent one of the still uncharged defendants Salim Ahmed Hamdan. Hamdan had served as one of Osama bin Laden's drivers. Commander Swift.
Lieutenant Commander CHARLES SWIFT (United States Navy): The letter said that my access to him was conditioned on us negotiating a plea bargain. If we didn't negotiate one, then my access could be cut off.
TOTENBERG: The letter presented a dilemma for Swift. He thought it was a violation of the code of legal ethics to accept that condition. He picked up the phone and called Georgetown law professor Neil Katyal, who by then was on board as the defense team's civilian lawyer.
The 33-year-old Katyal had volunteered his services and quickly been embraced by the defense. He had worked for two years in the Clinton Justice Department on national security issues so it was easy to renew his security clearance. And because he'd been an early academic critic of the Bush tribunals, he had quickly become the point man for developing a legal strategy aimed ultimately at Supreme Court review.
Now Katyal and Swift were worried that if Swift went to talk to Hamdan about a plea deal and Hamdan didn't want to plead guilty, Swift would never see his client again and would be unable to represent him in court. Professor Katyal.
Professor NEIL KATYAL (Georgetown University): To avoid that, I drafted a legal document that essentially said that Commander Swift would be authorized on behalf of Mr. Hamdan to file a challenge in Commander Swift's name.
TOTENBERG: Swift then went to Guantanamo to meet with his client, telling him -
Commander SWIFT: If we say no, I may not see you again. But understand I will start fighting and keep fighting for you the entire time.
TOTENBERG: Hamdan said he did not want to plead and signed the paper authorizing Swift to file a legal challenge on his behalf.
Swift now took his next step.
Commander SWIFT: I demanded a speedy trial. They said, you don't have the right to a speedy trial. And I said, Okay. And then I filed the lawsuit.
TOTENBERG: The suit was filed in Swift's name in Seattle, Washington, Swift's legal residence because he lived there when he enlisted in the JAG Corps nine years earlier. But neither Swift nor Katyal was licensed to practice law there. And they needed a local lawyer to file the suit.
Coincidentally, one of Katyal's former students called him. The former student now worked at one of Seattle's leading law firms, Perkins Coie. By evening, the managing partner was on the phone pledging major help, including partners who would continue to work on the case for the next three years.
The defense team by then had settled on Hamdan's case as the best one to use to challenge the military tribunals. Commander Swift focused on Hamdan after watching a documentary about the Nuremberg trials in which he noticed that Hitler's driver was not prosecuted as a war criminal.
Commander SWIFT: They didn't prosecute him. They interviewed him. In the law of war, the idea is to charge the principals, not the foot soldiers, unless of course, they are shooting civilians on a battlefield, lining them up.
TOTENBERG: Yes, says Neil Katyal, the defense lawyers knew they would take a PR hit for defending Osama Bin Laden's driver, but -
Professor KATYAL: Hamdan stood out as being the one who had done nothing bad himself besides being the driver to a bad guy. A lot of the other individuals had actually picked up guns, shot people and the like.
TOTENBERG: As the months dragged on though, Hamdan, who remained in solitary confinement, went into a spiral of depression, refusing to eat or drink. Commander Swift.
Commander SWIFT: It wasn't because he was striking. He just wasn't hungry. He was in severe depression. The guards were really worried about him.
TOTENBERG: Swift finally got hold of a picture of Hamdan's children in Yemen and brought it to the prison.
Commander SWIFT: And he broke down, just sobbing. And I said, how do you leave them - see, he's an orphan - how do you leave them the way they were left? And he started drinking water. But it was a tough day, tough day.
TOTENBERG: While all this was going on, the Supreme Court announced it would decide whether the other detainees at Guantanamo - not those charged as war criminals - had a right to challenge their detention 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' case unless ordered not to. The letter was CC'ed to their civilian lawyer, Neal Katyal.
Professor KATYAL: Our fear at the time was they could shut this brief down and the world wouldn't know about it and so the CC to me was designed to make sure that there would be some repercussions if they decided to gag the lawyers.
TOTENBERG: According to Bush administration sources, there was a desire to veto the brief. But White House officials finally decided it wasn't worth the hit they would take in the press, and the brief was filed with much accompanying publicity. Commander Swift.
Commander SWIFT: The amicus brief 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 amicus brief gave us an opportunity to break out.
TOTENBERG: In June of 2004, the Supreme Court ruled that the detainees could go to federal court to challenge their detention. And for technical reasons, the Hamdan case was moved back to D.C.
Four months later, a federal judge struck down the military tribunals as unconstitutional. The victory for the defense, however, was short lived. A federal appeals court panel that included then Judge John Roberts overturned the decision.
Now the defense was fully focused on persuading the Supreme Court to accept the case for review. Katyal filed a brief contending that the rules the president had established for the tribunals were blatantly unfair.
Professor KATYAL: In response, what the government did was change some of the rules to make them on paper look a bit fairer to Mr. Hamdan and then told the Supreme Court, don't hear this case in legal filing because we've changed the rules now to make them better.
TOTENBERG: Katyal then wrote a reply brief contending that these very changes proved his point that the rules were not rules at all, but an ever moving target, a system completely at the whim of the president.
In November, the Supreme Court announced it would Hamdan's case and three days later, Arizona Senator Jon Kyl introduced and immediately won passage of a bill he had prepared with White House help to strip the courts of jurisdiction in these cases.
Now the defense team led by Katyal went into high gear to get the language in the bill changed to exempt pending cases. Lawyer Tom Goldstein worked on the case.
Mr. TOM GOLDSTEIN (Defense, Hamdan case): What Neil did is he worked tirelessly - as somebody with really no Capitol Hill experience and with none of the influence of the president of the United States - to get that law changed so that Hamdan's case could stay alive.
TOTENBERG: And stay alive it did. In the months that followed, Katyal, who had never argued a Supreme Court case before, would devote 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 moot courts, working with as many as 1000 other lawyers.
He coordinated some 40 friend of the court briefs filed by retired military officers, diplomats, human-rights groups and conservative as well as liberal legal scholars. And he honed his own arguments, resolving much conflicting advice he got from all over the country.
All the while, as law student Danielle Tarantola(ph) observes, the defense team was in virgin legal territory.
Ms. DANIELLE TARANTOLA (Law student): For every paragraph, it could have been 50 hours of work for someone to do the research to come up with that one paragraph.
TOTENBERG: It all paid off on June 29, 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.
Professor KATYAL: One of the great things about the way the military and the administration has handled this is that they have let me do my job and they have let Commander Swift do his job. You know, in some other country, I'm sure we might have been shot.
TOTENBERG: Nina Totenberg, NPR News. Washington.
SIEGEL: And you can listen to the oral arguments in Hamdan v. Rumsfeld at the Supreme Court at our website, NPR.org. Transcript provided by NPR, Copyright NPR.
Earlier this summer, the Supreme Court invalidated the system set up by President Bush to try accused war criminals at Guantanamo. The ruling, in the case of Osama bin Laden's driver, followed a series of key maneuvers.
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.
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
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.
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."