Vanity Fair on Hamdan et al.

Marie Brenner, at Vanity Fair, has written a really fascinating article on the genesis of Hamdan. It focuses on Neal Katyal and Charlie Swift. Here are a few excerpts (but, of course, this is one you will want to read yourself). On Larry Tribe’s role at a moot:

During the weeks Katyal prepared to argue Hamdan’s case in front of the Supreme Court, he slept little. He traveled to law schools and law firms around the country, mooting his case 15 times, and each time he came away with more critiques and more suggestions. He assembled a team of law students and worked with Joe McMillan, an expert on international law and a senior partner at the law firm Perkins Coie. Eventually, three lawyers at the firm were helping pro bono. In his first practice session at Harvard, Laurence Tribe told him, “Neal, you feel a little small at the podium.” Katyal understood that this meant he was overly deferential when it came to addressing the Supremes

On winning and the blogosphere:

Paraphrasing Justice Breyer, Swift recalls the scene: “‘As I understand it the petitioner says that the guy is not a combatant because he is not engaged in classic combatant acts.… The war in which you say he was fighting is not actually a war.’ I was suddenly quivering in the courtroom, thinking, He’s got it! We have won! I am singing Hallelujah!”

On the day the decision came down, June 29, the telephones began to ring in the jag offices. Katyal and Swift were at the court, waiting to hear the decision read. Within moments, the jag lawyers, reading scotusblog.com, were shouting, “We won! We won! We won everything!”

On John Yoo

‘I kind of feel like I have been hung out to dry,” says John Yoo. “People say that I am responsible for everything, as if I had the full point plan for what we are going to do. In fact, I was fairly low down on the organizational chart. [Those above me] have basically decided they are not going to talk about this anymore. It is as if, if all the flak falls on this guy, well, fine. I don’t like it, but unlike them I think it is my responsibility to explain what we did and why.”

Yoo and I met in Philadelphia, in the lobby of his hotel, near Independence Hall, where he was preparing to be interviewed about his book War by Other Means. Round-faced and amiable, he seemed younger than his 39 years. His conversation is larded with euphemisms—”factor,” “cost,” “a negative”—which he uses to explain his analysis of torture. It was a “factor” for Yoo that “coercive methods” might make evidence inadmissible in a trial. Did he ever consider the moral implications of locking away in shackles potentially innocent men who had little ability to petition a court? “I said that I had no doubt it would be extremely controversial. I talked to people about it,” he told me. And his conclusion? “The one negative was international opinion,” he said, giving the phrase all the weight of a potato chip.

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6 Responses

  1. Matt says:

    I must say I really bleed for poor John Yoo. He feels like he was “hung out to dry”. I mean, he wasn’t literally hung out to dry, or hung on a wall and beaten to death like some of our prisoners in Afghanistan. And he’s feeling some pain. Not pain like those kept in a freezing cell for days or in a stress position for two days, but pain nonetheless. And I’m sure he’s feeling some emotional stress. Not the sort that someone kept in sensory deprivation for two years feels, that’s true, but I’m sure he’s a sensitive guy so it’s probably worse for him. Really, what a sorry case he is. It would be pathetic if his actions hadn’t had such terrifying results.

  2. Frank says:

    “It would be pathetic if his actions hadn’t had such terrifying results.”

    Matt, how quickly we forget what really constitutes “terrifying”. Terrifying is seeing a large commercial jet slamming into the WTC. Terrifying is seeing innocent civilians jump to their death from a burning building. Terrifying is having our defense hq engulfed in flames. Terrifying is not “freezing cells” for known terrorists nor is it being in a stress position for two days. Pain is losing losing a loved one on Flight 93.

    For a detailed list of the successful prevention of terrorist attacks due to interrogations conducted at American prisons operated in the Middle East see: http://www.dni.gov/announcements/content/TheHighValueDetaineeProgram.pdf

    Matt – “terrifying results” would be not interrogating these prisoners and having al-Qaeda kill thousands of more innocent civilians.

  3. Matt says:

    Yes, those things _were_ terrifying, Frank. But since a huge number of the people we picked up in Afghanistan and then tortured, with the help of people like Yoo, had nothing at all to do with it, since we’ve decided that the rule of law doesn’t apply anymore, since we’ve gone crazy over events that are minor compared to what other civilizations have survied, I’d consider this a pretty terrifying development. The damage done by people like Yoo will still be hurting our nation long after all those who died on September 11th would have died anyway.

  4. Adam says:

    It’s an interesting article, but by my first read the author seems to horribly misunderstand Rasul and Congress’s reaction thereto. It’s not clear to me that the author didn’t realize that Rasul wasn’t a decision of constitutional law — it was a mere statutory reading.

  5. Frank says:

    Matt – I respect your opinion but I have to disagree.

    I do not consider the events of Sept. 11 as “minor”. Further, your post leads me to the conclusion that you believe the alleged mistreatment of suspected terrorists in the Middle East is, in some quantitative way, worse than the acts of Sept 11. How you justify this in your head is beyond me, unless you are a member or sympathizer of al-Qaeda? Killing thousands of innocent people is worse than subjecting someone to a freezing cell. And it is essential to realize that the freezing cell is used, not for fun, but as a means to protecting the rest of the world.

    Finally, the crucial question is not the estimated life span of Sept. 11 victims v. the time period of “harm” done to American’s rep due to people like Yoo. It is, what does the American government need to do in order to protect American lives (as well as the rest of the world) from true evil. Evil that will kill thousands of innocent civilians unless it is destroyed.

  6. Matt says:

    Frank- I think your position is, Frankly, childish. I’m sorry to say that but it’s true. But, please do answer this. How did torturing (including beating to death) people who had nothing to do with September 11th, were not Al Qaeda members, not terrorists, etc. make the US safer? How could it? And is not doing that monsterous? Surely if such things were done to your friends or family you’d not care about the good intentions of those doing it. If moral demands are not universal what good are they?