Review

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

by Jonathan Mahler

The verdict of history regarding the legal response to the
tragic events of September 11, 2001 and the ensuing war on
terrorism remains undelivered. But the signs are ominous that the
actions of the American government and the Bush administration will
not be viewed as our nation’s finest hour.

THE CHALLENGE by Jonathan Mahler is the definitive study of one
of the epic battles of American jurisprudence --- a sobering and
frustrating account of a battle over constitutional values. Today
many Americans shake their head in amazement over conduct by our
government in response to the attack on Pearl Harbor and our
treatment of Japanese-Americans. We ask ourselves how a nation
built upon democratic institutions and the rule of law could have
behaved as it did. Decades from now, when those questions are
perhaps repeated in the context of the war on terrorism,
Mahler’s account will be an important source of
information.

Salim Ahmed Hamdan, a citizen of Yemen, never intended to join
the ranks of famous litigants whose names live in the annals of
legal history long after they have passed from this earth. He was
recruited for the jihad of Osama bin Laden and spent time in
Afghanistan as a driver for the al Qaeda leader. After September
11, 2001, he was captured by Northern Alliance forces in
Afghanistan, turned over to Americans and identified as a soldier
of bin Laden in exchange for a $5,000 bounty. For the next two
years Hamdan was imprisoned until finally in late 2003 he was
transferred to Guantanamo, Cuba, and designated as the first
defendant in America’s first war crimes trial since World War
II.

Hamdan’s legal journey shows the flaws and strengths of
our legal system. His incarceration and physical abuse do not
reflect well upon our nation. Yet that same system provided Hamdan
with legal representation that many other countries would not even
consider. Charles Swift, a lieutenant commander in the Navy, was
appointed as one of Hamdan’s attorneys. He was a vigorous and
aggressive advocate for his client, and because of that zealous
advocacy, he often experienced treatment detrimental to his
military career. Constitutional law professor Neal Katyal presented
important arguments for Hamdan and eventually formulated a strategy
that would bring the imprisoned man’s case to the United
States Supreme Court. Mahler offers readers a window into the
strategy and preparation of Hamdan’s case at each stage of
the litigation. He also reminds us that Swift and Katyal are more
than attorneys; they are real people whose private lives impact
their ability to represent their client.

THE CHALLENGE takes us to the Supreme Court and the arguments
that eventually led to Hamdan’s victory. Not only was Hamdan
granted a hearing, the Supreme Court ordered that it be conducted
in a fashion that required he receive important constitutional
rights. In July 2008, Hamdan was found guilty of providing material
support to al Qaeda but not guilty of the more serious terrorism
charges. Sentenced to five and a half years imprisonment, he
remains in prison, classified as an “enemy
combatant.”

One final anecdote from the legal battle between Hamdan and the
U.S. serves best to explain what transpired between the two
adversaries. As Katyal prepared for argument before the court of
appeals, he met Peter Kessler, the Justice Department attorney who
would argue for the government. “Neal, we are going to crush
you, crush you” was the attorney’s prediction. For the
sake of the nation and, hopefully at some future time, for the sake
of Hamdan, Kessler’s braggadocio was misplaced. Sadly, the
only thing crushed by the Justice Department was the concept of
liberty and international rights that many in our land hold
dear.

Jonathan Mahler’s narrative of the legal journey of Salim
Hamdan is an important historical work. To defeat the U.S.
president and government is a substantial achievement. The riveting
story of that victory described in the pages of THE CHALLENGE
should be considered by any person concerned about justice and the
rule of law in our nation.

Reviewed by Stuart Shiffman on December 26, 2010

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

  • Publication Date: August 5, 2008
  • Genres: History, Nonfiction
  • Hardcover: 352 pages
  • Publisher: Farrar, Straus and Giroux
  • ISBN-10: 0374223203
  • ISBN-13: 9780374223205