Eli lawyers battle in detainee case

The U.S. Supreme Court decision heard around the world this summer — Hamdan v. Rumsfeld — was first and foremost a showdown between Osama bin Laden’s former driver and the United States government. But beneath the surface, the Hamdan case caused an unusual civil war among Yale alums, pinning Eli against Eli.


After all, the 5-3 decision struck down the military commissions that had been in part devised by John Yoo LAW ’92. Two of the three dissenters — Clarence Thomas LAW ’78 and Samuel Alito LAW ’75 — are Yale graduates. Each wrote an opinion supporting the policies of President George W. Bush ’68, another Yale alumnus. Salim Ahmed Hamdan’s position was spearheaded largely by Neal Katyal LAW ’92 and championed by Yale Law School Dean Harold Koh along with several other law school professors. And in reaction to the ruling, Arlen Specter LAW ’56, chairman of the Senate Judiciary Committee, introduced new legislation designed to govern future enemy-combatant trials.


This Wednesday, nearly two months after Justice John Paul Stevens handed down the decision in the closing hour of the court’s term, the battle continued to play out. The Justice Department argued before a lower court that Hamdan’s victory was a narrow one — they interpret the Supreme Court’s ruling as answering the question of whether military commissions are legal but not whether he, and other enemy combatants held at Guantanamo Bay, may be detained indefinitely.


Meanwhile, Hamdan’s counsel filed a simultaneous motion Wednesday, attempting to obtain factual evidence as to why the government is insisting on his continued confinement. They argued that the high court’s ruling in July entitles Hamdan to question his captivity through a traditional habeas corpus challenge.


Still, the crux of Yale’s high involvement in the dispute so far may be the team of more than a dozen Yale Law School students who, in addition to their coursework, spent hours over the past several years assisting Hamdan without being paid. When Danielle Tarantolo LAW ’06, who worked on the case for two years, entered the courtroom to hear the ruling in July, she said she was “finally at the end of the road” of a journey that had begun years and courtrooms ago.


“This is what we had been anticipating since the very first day,” she said, the “we” referring to the team of Yale Law School students who had worked under the leadership of Georgetown University law professor Katyal and Navy Lt. Cmdr. Charles Swift, and alongside other law professors, students and firms throughout the country, to represent Hamdan, Osama Bin Laden’s former driver. “It was surreal.”


Around 10:15 a.m on June 29, Stevens began to describe his 73-page opinion. The government’s previous victory in the D.C. Circuit Court of Appeals, he said, was overturned. The high court had found jurisdiction to reach the merits of Hamdan’s argument. And in doing so, Stevens announced, five justices found that President George W. Bush ’68 overstepped his authority. Military commissions were constructed illegally, without the required consent of Congress. The Geneva Convention had been violated; international treaties were still enforceable in U.S. courts.


As Stevens read on, it suddenly became clear to Tarantolo and other members of Hamdan’s defense team in attendance that an imprisoned Yemeni national had, with their help, sued the president of the United States in the nation’s highest court — and won.


“We all had ear-to-ear grins plastered to our faces, making exclamatory facial expressions every time [Stevens] said something we recognized from our briefs,” Tarantolo said after the ruling. “Even when we had permitted ourselves to dream big about what result we might get, many of us — myself included — had not dared to hope for some of the arguments that Stevens was making. To hear a Supreme Court justice say the arguments you believe to be true suddenly makes them real and legitimate.”


Before long, the news spread to other Yale students and alumni involved in the case who were not in Washington, D.C., at the time. Steve Wu LAW ’05 said he was “astonished” at the virtual unanimity among the five majority justices in rejecting nearly every argument posed by the Bush Administration.


“I thought it was assumed that the court would split on some of those claims,” Wu said. “I don’t think anybody expected this kind of victory of Hamdan.”


Wu said the decision was gratifying, especially since work on the case was not always easy. Setbacks included a loss on the federal appellate level and Congress’ passage of the potentially stifling Detainee Treatment Act. Some days, he said, were “kind of a hard slog to go through.”


“There were definitely times you were working late before or after doing all the work and you sort of start wondering why you’re butting your head against the wall,” Wu said. “It’s very rewarding to feel that you can make some difference — that what you wrote at 2 a.m. one night had some influence on that outcome.”


In his opinion, Stevens wrote that the authority to employ some variation of military tribunals for trying detainees, “if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.”


He concluded that lack of express congressional authorization, military law precedent, and Common Article 3 of the Geneva Convention combined to form a “Rule of Law that prevails in this jurisdiction.”


Throughout more than 65 footnotes, which made for some of the more flavorful parts of Stevens’ opinion, he addressed many of the arguments made by dissenters and the government. He discussed the trial following the assassination of Abraham Lincoln, the precise start date of the war on terror, and the 1952 attempt by President Harry Truman to seize steel mills during the Korean War.


But dissenter Clarence Thomas LAW ’74, who took the unusual step of reading parts of his nearly 50-page opinion from the bench, argued for deference to the executive branch. Unlike dissenter Samuel Alito LAW ’75, who primarily said the court had overstepped its jurisdiction and then unnecessarily struck a “regularly,” albeit “differently,” constructed court, Thomas’ language was lofty and biting. He warned that the court’s ruling could compromise national security.


“The President’s findings about the nature of the present conflict with respect to members of al Qaeda operating in Afghanistan represents a core exercise of his commander-in-chief authority that this Court is bound to respect,” Thomas wrote.


Yale Law School Dean Harold Koh said that in addition to the narrow result of invalidating the military commissions, the Hamdan ruling sends three broad messages.


“To the world at large, it says the executive branch response is not the only response to these crises. To human rights and NGOs and universities and students, it sends a messages that if government action strikes you as excessive, it pays up to stand up and challenge it because your view may turn out to be more consistent with the rule of law,” Koh said. “To the executive branch, instead of claiming that there is a new paradigm to which the old laws don’t apply, [it says] you should in all circumstances look first to existing legal rules to see whether you can respond in a way that’s consistent with our legal practices and traditions.”


Koh also said the ruling demonstrates that Yale Law School “stands up for the rule of law when it’s threatened.”


After sorting through the 185-page opinion, Tarantolo said she felt a mix of emotions.


“For me personally, having worked on the case for so long, I was both giddy with excitement and strangely nostalgic,” she said. “But in the end, it was all worth it.”


Although the ruling was far-reaching, addressing numerous contentious legal questions, it stopped short of ordering a specific remedy.


In a press conference call, a senior Bush administration official said the departments of Justice and Defense were attempting to determine the precise scope of the ruling, which he insisted was narrow.


“Certainly the court’s decision is limited to the case before it, and this case was a case about the military commission that had been convened against Mr. Hamdan,” the official said. “As to the implications for the decision beyond that, that’s something that we are studying and will be studying.”


As for Hamdan himself, Tarantolo said at least three possible scenarios may play out in light of the ruling. Hamdan could be tried in federal court, he could be brought in front of a court martial, or Congress could set up a new system of rules for governing trials of detainees.


“The truth is, it’s impossible to say what’s next for Hamdan, since the ball is in the government’s court,” she said.


Yale law professor Judith Resnik, who helped write an amicus brief on behalf of Hamdan, said she celebrated the important holdings that there are no law-free zones in America and that the Constitution does not give the president a blank check to exercise power.


“The answer isn’t just go close Guantanamo Bay, but to fix the processes by which Americans detain and try people alleged to be terrorists,” Resnik said. “Conditions of that camp need to be radically reformed immediately.”


Cary Franklin ’98 LAW ’05 said that although the ruling exceeded her expectations, nothing came as a shock.


“I wouldn’t say I was surprised, because professor Katyal just makes you very optimistic about things, because he’s so passionate and tireless in the cause of justice that you just believe it’s going to prevail,” Franklin said. “I don’t think they’re going to be able to wiggle out from underneath the rule that this case set out.”


After the ruling, Katyal — perhaps reflecting on the hundreds of e-mail messages sent amongst his law students, the 2 a.m. epiphanies, and the many up-down moments he had already shared with his student-dominated team only had words of thanks.


“I am grateful to all of my students, who have worked hard and tirelessly on behalf of bringing justice to Guantanamo,” Katyal said.


But the battle of Yale alums on both sides of the dispute — some fighting for a more standardized trial system and others emphasizing the need to fight terror and resist potentially dangerous policies — is far from over.


“Justice Breyer and Justice Kennedy [in concurring opinions] both really emphasize that there’s many different things that the U.S. government could do, but that the president can’t unilaterally make many of these decisions,” Ariel Lavinbuk LAW ’07, who worked on the case, said hours after the ruling. “The natural question that seems to come out of this decision is “So what? What do we do with this?”

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