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When the Supreme Court hears arguments this week in a landmark dispute over executive power in wartime, the Bush administration will be outnumbered — if not outgunned. Many of the nation’s top law firms have signed briefs against the government and in support of Salim Hamdan, the detainee who allegedly served as chauffeur to Osama bin Laden and who is being detained at Guant�namo Bay, Cuba. More than three dozen briefs have been filed on Hamdan’s side, largely arguing that the military tribunals established by the White House to try the detainees are illegal. By contrast, only a handful of briefs have been filed on the other side, backing the administration’s expansive view of executive authority. The briefs in Hamdan v. Rumsfeld have flooded in to such a degree that, with the approval of the Court clerk’s office, their covers carry small captions summarizing the topic discussed within, an innovation aimed at helping justices and their law clerks keep them straight. The covers also carry the names of the big-ticket New York, Washington, and other national law firms that are bringing their muscle to bear, from Cravath, Swaine & Moore to Covington & Burling to Akin Gump Strauss Hauer & Feld to Jones Day. “The blue-chip firms are all in this case, and it’s the senior partners who are involved very often,” says David Remes, the Covington partner who coordinated the amicus curiae effort for Hamdan. “This is not a tousle-haired, wild-eyed group of lawyers.” Adds New York University Law School professor Burt Neuborne, who also filed a brief for Hamdan: “This is not noblesse oblige by the big firms. It is an extraordinary no-confidence vote by the establishment bar in what the administration is trying to do here.” Neuborne believes the only recent parallel was the effort 50 years ago by New York firms to help desegregate public schools. President George W. Bush ordered the creation of the military commissions two months after the 9/11 terrorist attacks, basing the order on his powers as commander in chief and on the congressional authorization of military force passed after the attacks. Hamdan was captured in Afghanistan in November 2001, then transferred to Guant�namo. In 2004 he was referred to a military commission, to be tried on conspiracy charges. The administration claims Hamdan, as bin Laden’s driver, delivered weapons to al Qaeda members and was aware of bin Laden’s role in the 9/11 attacks.
• Supreme Court to Review Terror Panels (November 7, 2005)• Blind Justice? (October 24, 2005)• Enemy Combatant Case at High Court (September 26, 2005)• High Court Says No to Accused Terrorist (January 18, 2005)• Guantanamo Detainee Hearings Begin (August 25, 2004)

Hamdan filed a habeas petition challenging the commission procedure, arguing it violated the Uniform Code of Military Justice and the Geneva Conventions. A panel of the U.S. Court of Appeals for the D.C. Circuit ruled against him. The nearly united front among the nation’s legal elite against the White House has not gone unnoticed by the administration. In remarks at a press conference at Guant�namo Bay Naval Base earlier this month, the Defense Department’s chief prosecutor for the military commissions there, Air Force Col. Moe Davis, said it was “ironic” that big law firms representing large defense contractors such as Boeing Corp. allow their lawyers to represent Guant�namo detainees pro bono. Miami lawyer Neal Sonnett, the American Bar Association’s observer in Guant�namo, says when he heard the comment he took immediate exception, saying that if it was meant to intimidate law firms, “it was beneath Colonel Davis’ rank and status.” Sonnett, a former president of the National Association of Criminal Defense Lawyers, adds, “These lawyers and their firms are true patriots.” Some who heard Davis’ remarks thought he was referring specifically to Perkins Coie, the Seattle firm that has represented Hamdan from the beginning of his challenge to his detention in 2004. Perkins Coie is one of several law firms employed by Boeing, and one of the firm’s lawyers will be at the counsel table Tuesday when Georgetown University Law Center professor Neal Katyal argues Hamdan’s case before the Court. “If it was directed at us, it was out of line,” says Perkins Coie partner Harry Schneider Jr., who has taken the lead in the firm’s representation of Hamdan. Schneider says the firm has never heard negative feedback from any client about its representation of Hamdan. “Given the range of our clientele and our position in town, that’s pretty remarkable.” Schneider says when the firm first was approached to take the case, it was handled like any other pro bono proposal and was cleared with firm partners. “It looked like a case where someone needed representation,” he says. As the case proceeded, eventually transferring from the Western District of Washington to Washington, D.C., its magnitude grew. “It goes to the foundation of our system,” says Schneider. “These people were taken into custody and hadn’t been given an opportunity to defend themselves.” Covington’s Remes thinks that is why so many large firms — or at least committed lawyers within those firms — were drawn to the case. “It sounds clich�d, but it’s true: This case is about the rule of law,” says Remes. “This is a power play by the administration to escape meaningful judicial review.” Remes says his firm did not hesitate about his involvement in the case and in defending Guant�namo detainees. “As I tell our clients in Guant�namo, we go up against the government every day,” he says. Remes sees a direct link to his work from that of the late Covington partner Charles Horsky, who represented Fred Korematsu in the 1944 Supreme Court case on the wartime internment of Japanese-Americans. Neuborne too points to a long tradition of major law firms representing the unpopular. “Wendell Willkie was representing communists and aliens in World War II,” he says, referring to the one-time presidential candidate and partner in the New York firm now known as Willkie Farr & Gallagher. But Neuborne sees the Guant�namo effort as different, and more widespread. “The centrist establishment bar has rallied to this as a defining issue,” he says. “The government has gone too far.” STAYING ON MESSAGE Some lawyers on the side of the detainees caution against misinterpreting their advocacy for the detainees. “This has nothing to do with 9/11 or supporting terrorism,” says Paul Saunders, a Cravath partner who wrote a brief in Hamdan. “This case raises probably more fundamental issues of jurisprudence than any other case I can think of — whether the president has the power to create a parallel system of courts that is self-executing.” Saunders, a former JAG officer in the Vietnam War, says the political implications of going up against the administration in Hamdan “were not an issue for us, not even considered.” Shearman & Sterling partner Thomas Wilner also asserts: “I’m not a wimp on terrorists. I think they should be hung by the balls if they find them.” Wilner is not directly involved in Hamdan, but he represented 12 Kuwaiti detainees who won Rasul v. Bush in 2004. He also argued on behalf of detainees before the U.S. Court of Appeals for the D.C. Circuit on March 22 over whether the new Detainee Treatment Act strips federal court jurisdiction over pending detainee cases — a looming issue in Hamdan, as well. Wilner says the detainees’ Kuwaiti families hired his firm and wanted to pay for the representation, but the firm has donated the fees to a 9/11-related foundation. He says at first the firm took a lot of heat for its role, but that’s since dissipated. “We are standing up for a basic principle — the rule of law that has meant, since the Magna Carta, some form of independent review.” One reason for all the briefs on Hamdan’s side is the myriad of issues that have come together in the litigation. There are threshold issues that could derail the case entirely, such as abstention — that is, the proposition that federal courts should steer clear of Hamdan’s case until after he actually goes through the military commission process. A small stack of briefs are devoted to that point. Then, too, there are delicate issues of international law, including the relevance of the Geneva Conventions of 1949, which lay out rules for handling prisoners of war — and which the Bush administration says do not create an individually enforceable right for the detainees to challenge their captivity. Remes’ brief filed on behalf of former U.S. military officials argues that if the United States ignores Geneva rules, U.S. soldiers will be at risk at the hands of enemies. THE CASE OF CHARMING BETSY Some briefs reach back centuries to bolster Hamdan’s position. In one filing, Christopher Wright of Harris, Wiltshire & Grannis in Washington focused exclusively on the 1804 case Murray v. The Schooner Charming Betsy, in which Chief Justice John Marshall first enunciated the view that federal statutes should be interpreted to comport with international law. “The Court back then thought it was relatively uncontroversial to look at international law in construing our statutes,” says Wright. “It seems more controversial today.” Another brief by Orrick, Herrington & Sutcliffe discusses how the United States, in combating Barbary pirates 200 years ago, abided by international law and custom. But the biggest issue that has captured the attention of lawyers in the Hamdan case recently is the impact of the Detainee Treatment Act, the statute argued last week in the D.C. Circuit. Passed last fall, the law establishes a new review mechanism for detainees’ status, which, according to the Bush administration, strips the Supreme Court of jurisdiction over the Hamdan case. Sen. Carl Levin (D-Mich.), one of the co-sponsors of the law, insists the law does not apply to pending cases like Hamdan’s, but the other sponsors, Sens. Lindsey Graham (R-S.C.) and Jon Kyl (R-Ariz.), argue otherwise. The Court could decide that this issue, which has not yet been ruled on by any other court, needs more scrutiny and warrants sending the case back to lower courts. Baker Botts filed a brief for Sens. Graham and Kyl, one of the few private firms weighing in on the side of the administration. Partner Jeffrey Lamken says he too has been struck by the large number of firms in the case, which he describes as “a good thing.” But Lamken, a veteran of the solicitor general’s office, says it is not uncommon for the government to rise before the Court with few amici at its side. “I feel no loneliness,” he says.

Tony Mauro can be contacted at [email protected].

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