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During winter 2004, Harry Schneider, partner at Seattle’s Perkins Coie, got to thinking that he’d like to take on a cause, not just a case. Schneider had been inspired by the words of Dave Burman, his friend and fellow partner. Burman and a team of pro bono Perkins lawyers had successfully defended in the U.S. Supreme Court the Legal Foundation of Washington’s practice of pooling tiny sums from interest on lawyer trust accounts, known as IOLTA, to fund indigent legal services. During a luncheon Schneider attended in his honor, Burman quoted Judge Learned Hand: “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.” Later, “I had a conversation with our pro bono coordinator,” Schneider recalled recently. “I told her I hadn’t done any pro bono work in a while and if she found a case-it didn’t need to be a big deal or high visibility or important-I was available.” The pro bono case soon presented to Schneider would prove a very big deal-not just important but historic. Within two weeks, Perkins Coie, a firm with a history of taking complex pro bono cases to the Supreme Court, would be asked to help represent Salim Hamdan. Hamdan, a citizen of Yemen who had been a driver for Osama bin Laden and was captured in Afghanistan, had spent more than two years in a legal netherworld at the U.S. military prison at Guant�namo Bay, Cuba. He had not been charged with any crime but was being held indefinitely in solitary confinement. “My access was conditioned upon Mr. Hamdan continuing negotiations toward a guilty plea. If we said we weren’t interested in a guilty plea, I couldn’t see him any more,” his attorney, Lieutenant Commander Charles Swift of the U.S. Navy’s Judge Advocate General Corps, said in an interview. “They were refusing to charge him; they were just going to hold him in solitary until he pleaded guilty. It was extraordinarily Orwellian.” Swift and Neal Katyal, a professor at the Georgetown University Law Center, plotted how to bring a habeas plea in federal court. The U.S. District Court for the District of Columbia and the 4th U.S. Circuit Court of Appeals had already upheld the government’s argument that federal courts lacked jurisdiction to hear petitions from “enemy combatants” held at Guant�namo. Swift and Katyal conceived an end-run strategy. Swift, acting as Hamdan’s “next friend,” would file the petition in the U.S. District Court for the Western District of Washington in Seattle. The city had been Swift’s home before he went on active duty, and therefore was his legal residence. A search for the right case “Charlie and I started discussing what the ideal test case would look like, and we settled on Hamdan,” Katyal said. “We knew in the headlines would be ‘Bin Laden chauffeur sues Bush,’ but the legal issues were strong. I was wracking my brain thinking who could serve as local counsel.”
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Swift, a graduate of the Seattle University School of Law, was well aware of Perkins Coie’s reputation for taking tough pro bono cases. At his urging, Katyal called a former student, David East, an associate at the firm. East steered Katyal to the firm’s pro bono coordinator, Julia Parsons Clarke, who took the proposal to Schneider on March 9, 2004. “We took a good look at it before we committed the firm,” Schneider said. “I went to my fellow management committee members and laid out for them that it could be over in a month, we could get tossed out, we could go all the way. It could get a lot of visibility, and it might not all be favorable. It would involve the president and the secretary of defense. Their reaction was, ‘Keep us informed as it goes along.’ They didn’t second-guess the decision.” Schneider asked two of the firm’s top attorneys, Charles C. Sipos and Joe McMillan, to help with the case. Both quickly agreed. Katyal was amazed that the firm, whose largest client is defense contractor Boeing Co., took the case. “When Harry and I first talked I was blown away, because of Perkins’ relationship with Boeing,” Katyal said. “It took enormous guts. Now there are a lot of firms doing Guant�namo work. Back then, there was none.” The Hamdanteam filed its habeas writ in Seattle on April 9, 2004. At that point, Hamdan had been in solitary confinement for months but had not been charged. “This was not a theoretical separation-of-powers issue, where there was a potential the executive might conduct a trial that is unfair by establishing his own court system outside the purview of Congress,” Sipos said. “The actual rules of evidence allowed hearsay that was extracted through torture. It wasn’t just that in principle the executive shouldn’t be running courts; these courts on their face were abusive.” On April 20, 2004, the infamous photos of the abuses at Abu Ghraib became public. “Abu Ghraib was a sea change. It really changed the legal climate about doing this kind of legal work,” Swift said. “All of a sudden everybody was on it. It’s a great credit to Harry, Joe and Charles that they took a look at the legal regime and signed up before somebody put a picture on television.” Schneider, Sipos and McMillan won a stay blocking the government from trying Hamdan before a military commission. They continued to represent Hamdan as the case traveled through the D.C. Circuit to the Supreme Court. The justices heard arguments last March and ruled in Hamdan’s favor in June. Hamdan v. Rumsfeld,126 S. Ct. 2749 (June 29, 2006). ” Hamdanis a good example of the firm’s long-standing commitment to pro bono work and willingness to take on cases that can be considered notorious or controversial,” Schneider said. “This was a highlight in my practice.” Legal setback At last count, Perkins Coie had devoted 6,223 hours to the case, or $1.6 million in billable hours, with an open-ended future involvement. And the case is by no means over. On Dec. 8, 2006, the U.S. Department of Justice filed a brief in the D.C. district court invoking the Military Commissions Act, approved by Congress soon after the Supreme Court’s ruling. “The Military Commissions Act strips the federal courts of jurisdiction, retroactively legalizes the conduct of the detainee policy by amending the War Crimes Act and invests the president with the authority to determine the meaning and application of the Geneva Convention,” McMillan said. “One of the main holdings in our case is that the Geneva Convention applies to the conflict in which Mr. Hamdan was captured and Common Article 3 protects him.” However, U.S. District Judge James Robertson in Washington upheld the government’s position on Dec. 14. He said that foreigners being held in overseas military prisons do not have the right to challenge their detention, a right people inside the country normally enjoy. Schneider said the Hamdanteam will appeal the decision while awaiting rulings on numerous other matters pending before the D.C. Circuit. “Those decisions will affect our chances on appeal,” he said. “This is, after all, a marathon. Nothing is easy in Hamdan v. Rumsfeld, as Charlie [Swift] often says.” He underlined the importance of the case. “If the government had had their way, there is no more Geneva Convention-because if the United States doesn’t think we have to comply, who will comply?” he said. “Someday an American soldier is going to come home in one piece from a battlefield after being captured because the Geneva Convention still counts, it’s not just words on paper. The family is going to owe Joe and Charles and Harry, but they’ll never know them.”

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