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The Supreme Court’s 2005-06 term began with a bang and ended with a blockbuster. After a decade-plus of stability, the Court had two new members to unsettle expectations. Chief Justice John Roberts Jr. was sitting on the bench that first Monday in October, while Justice Samuel Alito Jr.’s much-anticipated arrival was delayed until January. Two months later the Court heard the term’s biggest case, Hamdan v. Rumsfeld. And it was those two topics, the Roberts Court and Hamdan, that preoccupied the panelists at Legal Times‘ fifth annual Supreme Court review.

Three of the panelists were veterans of multiple arguments before the justices over many years; the fourth had successfully argued
Hamdan itself. The discussion, moderated by Legal Times‘ Supreme Court correspondent, Tony Mauro, took place July 12 at Georgetown University Law Center. The event was sponsored by West, a Thomson business. Participants were greeted by Ann Pelham, publisher of Legal Times, and Lisa Khoury, regional manager for law firm account management at West. What follows is a transcript of the event, edited for length and clarity.

Tony Mauro: I’ll start with you, Neal. I’d like you to take us into the strategy that went into how you presented the Hamdan [v. Rumsfeld] case to the Court. You’ve been with this issue for a long time, but there must have been moments when the case seemed ready to fall apart, like when Congress passed the Detainee Treatment Act, which seemed to strip the Court’s jurisdiction in this area altogether.

Neal Katyal: Three years ago I devised the initial pleadings of Hamdan after spending about six months figuring out what the test case would look like. The ideal at that time was really to target Chief Justice [William] Rehnquist. Our entire strategy revolved around winning the chief, and we thought we would win the case 6-3 or 7-2 on that basis.

The theory of the case back then was about vindicating the power of Congress, that the military commissions were an attack on congressional power. And that really came out of my academic work. As I started working with far more experienced attorneys than I, I started to think about other themes.

When the DTA passed, there was never a moment of despair, frankly. I looked at the DTA as a fairly vague statute. Not once did I think we would lose to the DTA ever. I thought that that statute was far too vague. And had it been explicit, I thought the Court would see it as a stripping of their fundamental role.

That then started me thinking that a second theme, in addition to the attack on Congress, was an attack on the judicial branch — not just with the DTA, which the government argued was trying to strip the Supreme Court of jurisdiction in the pending case, but the entire notion of military commissions, which were fundamentally based on the idea that we can’t trust the existing court system. So that became the ultimate theme for the pleadings and the argument.

Mauro: Did you think that you were asking for too much? The path to victory is to convince the Supreme Court that what you’re asking for is no big deal.

Katyal: There were basically two kinds of strategic choices I made at the beginning of the brief writing. The first was to exploit the role of tradition. The solicitor general’s basic theme, and the theme of his brief in opposition in the Supreme Court, was basically these military commissions are just traditional and executives have done it all the time. That’s a debate we really wanted to have. Because we believed these military commissions departed from tradition by kicking defendants out of the courtroom, by not complying with military law, not complying with international law.

Their response was yes, but we’re in a new paradigm in which we have to rethink the old rules. And that’s fine, but those two arguments didn’t work very well together — tradition and new paradigm.

The other thing was the role of international law. Here this is really weird because the sides are flipped. It’s normally the so-called liberals who are invoking international law and the conservatives who are saying we can’t have foreign law and the like. But here, [Salim] Hamdan was being prosecuted in the name of international law, because that is the only thing military commissions can try — violations of international law. And so we really wanted to get that theme out for the Court.

The way we did both of these was essentially to ask for a lot — to say, point one, military commissions are unconstitutional and illegal, but you don’t have to reach that because these commissions don’t comply with the tradition and history of military commissions. Same thing with the DTA. The Detainee Treatment Act is an unconstitutional stripping of the judiciary’s power in habeas corpus cases. But you don’t need to reach that question because there’s so much vagueness in the statute that it was intended or should be read to grandfather existing cases.

Mauro: Greg, the government also argued tradition. Are you now thinking that strategy was misguided? And why do you think the Court didn’t go along with your side?

Gregory Garre: We obviously made the arguments that we thought were in the government’s best interests and that we thought would prevail in the Supreme Court. Our arguments prevailed in some of the courts, including the D.C. Circuit, where we obtained an unanimous decision. And then, of course, the case arrived at the Supreme Court.

We thought there was a compelling case to be made on the tradition of military commissions. The history of commissions we viewed to be very strong, going back to George Washington, Civil War, World War II. These were instances in which military commissions were not only held but upheld by the Supreme Court.

But the Supreme Court obviously disagreed with us on those arguments. At least three of the justices did agree. And Chief Justice [John] Roberts [Jr.], who had participated in the case in the D.C. Circuit, did not participate on the Supreme Court.

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