In sifting through their inboxes last spring, 10 Yale Law School students came across an e-mail unlike any they had received before. The author, Neal Katyal LAW ’95, had a favor to ask.
Help me to defend Osama Bin Laden’s former driver, he said. And spend hours every week doing so, on top of rigorous law school classes and summer internships.
“I cannot promise you any money or even glory,” Katyal wrote. “But I can tell you that this will be one of the most exciting cases in the federal court system.”
Less than a year later, the law school students who accepted the offer, hand-selected by Katyal for their standout academic achievements and personal attributes, said they had no regrets. After all, their work so far seems to have paid off. Last month, they were sitting in the U.S. Supreme Court — not just in any case, but in their own: Hamdan v. Rumsfeld, the dispute that legal experts say may definitively determine the rights of enemy combatants detained after Sept. 11, 2001 once and for all.
“It was crazy,” said Johanna Kalb LAW ’06, chuckling and reminiscing just weeks after the oral arguments about the hundreds of late-night e-mails from Katyal that somehow resulted in pages of Supreme Court briefs and an argument that appeared to gain the sympathy of at least five justices.
But it took much more than an e-mail to attract Yale’s sharpest and most progressive legal minds. Rather, it was the rare merging of two factors — ideological conviction and personal finesse — that did the trick.
On one hand, students said they were convinced by what they saw as a breach of separation of powers and disregard of human rights by President George W. Bush ’68: an unconstitutional ad hoc military commission, run by the executive, for trying detainees held at Guantanamo Bay.
The other ingredient was Katyal himself. While balancing his family life and teaching responsibilities at Georgetown University Law School with his controversial pro bono representation of Hamdan, Katyal led his team, by means of lower-case e-mails, creative brainstorming assignments and enthusiastic thank-you notes, from the classrooms in New Haven to the chamber of the nation’s highest court.
In the aftermath of last month’s Supreme Court arguments, several student members of the Hamdan team lounge on couches in their New Haven high-rise apartment. Drinks and law textbooks are sprawled on the table. After weeks of late-night efforts to help Katyal with legal briefs, the students are finally reflecting on their experience.
“I don’t think anybody recognized the scope of this case until this semester,” Aron Ketchel LAW ’06 said. “To be working on a brief for the Supreme Court? There’s not much more that a three-L (third-year law student) can ask for.”
Communicating at times across the world, the students involved said they were taken aback by what they called Katyal’s empowering system of assignment, follow-up and finalization of legal arguments.
Katyal’s former law school roommate, Anand Raman LAW ’95, said he foresaw Katyal’s predilection for working with students.
“He’s really good at communicating with the people he works with so they really feel part of the process,” Rahman said. “I know the case has been physically demanding. The hours he’s put in a pro bono capacity have been staggering, and he’s had many, many, many sleepless nights.”
After students agreed to participate in the case, Katyal would ask them to tackle challenging questions or to file an amicus brief in a lower court, tasks they had never been asked to perform before on their own. Sometimes his assignments were tailored to their individual interests, and other times he simply asked for a volunteer.
“It’s all very real-world,” Kalb said. “He says, ‘Go out and look at this issue,’ and we come back and try to make the best argument. It was the first time that I had to find arguments for myself, think creatively about the legal issues and how they worked for our client.”
Often, discussions on how to best attack a certain point, such as the interaction of military and civilian law, would ensue via e-mail.
“How many times, if at all, did you talk on the phone to Neal?” Ariel Lavinbuk LAW ’06 asks his friends. One of them replies, “I don’t even have his phone number.”
Although Katyal himself may have been far away, the students working with him said his message hit close to home. Many of the students who worked on the case were already members of the post-Sept. 11 clinic at Yale Law School established to preserve civil liberties during the war on terror. When they took on this case, some said they did not have reservations about defending a former confidant of Bin Laden because they believe the military commissions established to try enemy combatants violated separation of powers and threatened human rights.
“I think that regardless of whether or not somebody is or is not guilty, the executive should not be able to make up [rules] as they go along,” Kimberly Gahan LAW ’07, who worked with Katyal, said. “There are recognized restraints in the laws of war … The law, in a way, is about restraint. It’s about providing a structure for doing something right.”
But the students’ case is not without its detractors.
Brad Berenson, a former counsel for Bush, said Katyal’s position is “insupportable” in light of both history and law.
“Military commissions were used by General George Washington before the Revolution … by Andrew Jackson in Seminole, General Scott in the Mexican American War, in the Civil War for the trial of Lincoln’s assassins and during World War II for war criminals,” Berenson said. “The Supreme Court has reviewed their use on five occasions, and Congress has recognized it as an inherent enactment of congressional authority.”
Berenson said that since Hamdan remained Bin Laden’s loyal bodyguard after Sept. 11, it is likely that he was meaningfully involved in furthering the “overall terrorist enterprise.”
But for Danielle Tarantolo LAW ’06, the one student who accompanied Katyal in a 2004 visit to Hamdan, the experience she had seeing the makeshift court at the prisoner camp, around which the case centers, confirmed to her that working on the case was the right decision. Suddenly for Tarantolo the man behind the e-mails and ingenious legal arguments was about to become very real.
“This was just absolutely incredible to me,” Tarantolo said. “In the fall of my second year of law school … I could be getting on a military plane with Neal and traveling down to Guantanamo Bay. To be down there and seeing all of this stuff going on in real time brings home the case in a way that doesn’t usually happen.”
To the Supreme Court
When the U.S. Court of Appeals, a panel that included current Chief Justice John Roberts, ruled against Hamdan in July 2005, Katyal did not give up the case. He again rallied his troops, successfully applying for a writ of certiorari. Suddenly the case was the subject of national media attention.
“Suddenly this becomes one of the bigger cases of the year, and we’re third-year law students,” Matthew Spence LAW ’06 said. “This was an unbelievable opportunity.”
As the pressure to step up brainstorming in preparation for the Supreme Court mounted, Katyal said he was continually impressed by his students. He said he had spent two and a half years studying separation of powers when one student “kind of waltzed in, did some research, and came up with a new creative way of thinking about it.”
After several hectic weeks, the big day finally came.
“You can go see the Super Bowl and it’s awesome,” Tarantolo said. “But if you go to the Super Bowl and your team is playing in it, it’s even more awesome.”
Since they were short several oral argument tickets, a number of members of Katyal’s team camped overnight outside of the Supreme Court.
As he slept on the sidewalk between the fully-lit Capitol Building and the imposing columns of the Supreme Court, Lavinbuk said he was overwhelmed by pride. And the nighttime adventure was worth it. Over 500 people showed up to fill the couple hundred seats.
Katyal, who was nervous after countless practice runs, calmed after several seconds, he said. And in his first argument before the Supreme Court, he addressed head-on why he had taken on the three-year quest.
When Justice Samuel Alito LAW ’75 asked Katyal why he had not waited for the military tribunal to rule, as would have been the normal procedure in trying a purported war criminal, the response seemed to echo months of late nights and payless work.
“Justice Alito, if this were like a criminal proceeding, we wouldn’t be here,” Katyal retorted.
The Supreme Court proceedings marked the first time that some of the students on the case met Katyal in person. Katyal said having the students’ intellectual and emotional support was important to his performance in the court room. And Katyal said he welcomed the opportunity to give students the chance to work on such a landmark case.
“It would have been very easy for me to fall through the cracks when I was in law school, but a number of professors took an interest in me and my work when I was at school, and that’s why I involve students in the stuff I do,” Katyal said. “It’s crucial to me that I push students in certain directions and help them, and so that’s what I’ll continue to do.”
As they passed notes to each other behind him, expressing their reactions to the justices’ comments, the students on Katyal’s team said they were struck by their surroundings.
“Here’s this young professor and a bunch of rag-tag students and here’s [U.S. Solicitor General] Paul Clement and the entire U.S. government,” Lavinbuk said.
For months, perhaps without realizing it, a group of Yale law students had begun to write a new chapter in American history. Now it is up to the justices of the Supreme Court to complete that chapter. Whatever the verdict — which is expected to come in the next several months — students involved said it was crafting briefs with friends that has already made the journey worth it.
“It’s great to share something that is this interesting and this important with people that are my friends,” Tarantolo said. “I don’t think that people in their entire lives as lawyers ever get to do anything as cool.”