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.