The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power

by Jonathan Mahler

Book Overview

In November 2001, Salim Ahmed Hamdan, a thirty-one-year-old Yemeni man, was captured near the border with Pakistan and turned over to U.S. forces in Afghanistan. After he had confessed to being Osama... This description may be from another edition of this product.

• Format: Hardcover
• Language: English
• ISBN: 0374223203
• ISBN13: 9780374223205
• Release Date: August 2008
• Publisher: Farrar Straus Giroux
• Length: 334 Pages
• Weight: 1.32 lbs.
• Dimensions: 1.2" x 6.3" x 9.3"

Customer Reviews

A story of heroism in the pursuit of justice

As one who has followed the Supreme Court detainee cases concerning Hamdi, Rasul, Hamdan, and Boumediene, I was pleased to obtain this book, which contains background on the Hamdan case. The Hamdan case centered around the legality of military commissions as conceived and set up by the Bush Administration (Cheney and Addington). At bottom, the issue is one of Presidential power and how far the President can go unilaterally during times of war without the intervention of the Legislative and Judicial branches. I found that in addition to providing some generalized legal background, this book lends a human perspective on what was going on as a result of the government's legal response to 9/11. Salim Hamdan grew up in a poor, backward farming region of Yemen, received something like a fourth grade education, and was orphaned by the time he was eleven. Adrift at a young age in a place that celebrated religious martyrdom, he fell under the spell of a radical jihadist and eventually made his way during the 90s to Afghanistan where he became employed as Osama bin Laden's driver and bodyguard. After 9/11 he was captured by the Northern Alliance and turned over to the U.S. for a ransom. After the order was signed by Bush to set up the military commissions, Hamdan was one of the first to be charged. The main part of the story concerns the heroic efforts of especially two lawyers, law professor Neal Katyal and Charles Swift of the JAG corps, in taking up Hamdan's case and eventually presenting it before the Supreme Court. Katyal became the driving force. He had been a hawk when working in the Clinton Administration concerning running down al Qaeda and had later supported the Patriot Act, but he had serious qualms about giving the President a blank check in setting up military commissions. It was a heroic effort especially in light of what they were going up against: an executive branch that was determined to use a state-of-war emergency to justify its powers. "We're going to crush you", one of the government lawyers said when Katyal faced the Court of Appeals. An interesting note is that Chief Justice John Roberts was on the three judge panel for that case, and apparently was being considered by Bush as a Supreme Court nominee during that very period. It was a disturbing conflict of interest that Katyal perceived, but about which he could do nothing. In the end, Hamdan - at least the Hamdan before his extended detention - was simply not a dangerous individual. Finally, after all the time spent detained, much of it in solitary confinement, a military court found him not guilty of conspiracy in 2008. There was simply no evidence, nor did he give indications during interviews, that he was a dangerous conspirator. Concerning the interviews, it is interesting to note that the useful and valuable information he provided about al Qaeda was not extracted as a result of mistreatment he received particularly at the Bagram prison, but as a result of attempts by an

Hamdan - defending laws, like writing them, is like making sausage

First, the grueling nature preparing for what became arguably the most important constitutional law ruling by the Supreme Court in 30 years is incredible. Take a constitutional law prof at Georgetown with a terminally ill father, a card-carrying-member of the ACLU Navy lawyer with ADD, and top legal eagles from white-shoe law firms pitching in pro bono work and getting frustrated at not being heard out enough in briefs, and you get some idea of the potential for conflict - potential that became actuality at times. But yet, everybody held together, above all Prof. Neal Katyal and Lt. Com. Charles Swift. However, the grind took its toll on Swift, with an eventual divorce and his Naval promotion path blocked. And, continued confinement in Guantanamo continues to take its toll on Salim Hamdan. In a brief wrap-up in that vein, Mahler talks about the post-Hamdan legal world, especicially the Military Commissions Act and the Boumediene case. If you want a legal thriller that's real-life, not fiction, and about life and death constitutional issues, this is a must read.

Hamdan vs. Rumsfeld

Here is an astonishing story in which two unlikely and oddly paired attorneys (read heroes) take on the United States government on behalf of a Yemeni citizen detained at Guantanamo. Neither Lt. Cmdr. Charles Swift, the navy lawyer assigned to the case, nor Neal Katyal, the Georgetown law professor who volunteered to help, could have imagined where the case would take them nor what it would require of their careers, family, and personal well being. But the story of what they did, how they did it, what it took, who helped, and how it all came out is as amazing as it is important, resulting in one of the most significant legal decisions of the post 9/11 era, the Supreme Court's ruling on Hamdan Against Rumsfeld. Jonathan Mahler relates the tangled and extraordinarily complex sequence of events and legal maneuvers with such mastery of the material, you have to believe he had a degree in law was on hand for every conversation, discussion, and encounter. The Challenge is a gratifying David and Goliath story, but its real worth lies in the issues of justice and constitutionality which this case brings to the fore and which determine whether anyone will receive the justice presumably guaranteed by our constitution and international law.

American Justice

Mr. Mahler has researched a griping courtroom drama in the tradition of "A Few Good Men" where the murder charges have been replaced by a constitutional crisis. Does terrorists have any rights under the Constitution or can they be have forever without a trial? The book could have used some tighter editing, but otherwise is quite readable and clear as to the legal issues and maneuverings. Following the case as it slowly makes it way to the Supreme Court, the author illustrates the lives of the lawyers involved and the costs that they paid to win a victory before the Roberts court to have a trial. As A coda, the newspapers reported this week that the defendent was acquitted of the serious charges and will be released in six months.