Just a few months ago, in April of this year, the Guantánamo Bay detainee Salim Hamdan appeared before the Navy captain acting as his military judge, and announced that he would boycott the war-crimes trial the Bush administration had planned for him. “There is no such thing as justice here,” Hamdan said of the special tribunal constituted to try him. The judge exhorted him to have faith in American law. “You have already been to the Supreme Court,” he reminded the embittered detainee. Hamdan didn’t go for it. He told the judge that while his lawyers had gone to the highest court in the land to argue on his behalf, he’d been left behind—at Guantánamo.
Hamdan’s present makes for a bleak backdrop to his recent past, and to the Supreme Court victory achieved in his name, whose history Jonathan Mahler recounts in his new book. Few of the court’s decisions have been so legally meaningful and yet so personally meaningless.
The judicial battle began in 2004, when the Bush administration lost in its effort to indefinitely detain Yaser Esam Hamdi, an American citizen also held at Guantánamo. Rather than try him in the federal courts, the government sent Hamdi back to Saudi Arabia, where he had grown up and also held dual citizenship. But the administration presumably decided it could not afford to take the same approach with Hamdan, who has admitted to being Osama bin Laden’s driver, and who (like hundreds of other Guantánamo detainees) is not an American citizen. Instead, the administration doubled down.
As Mahler explains, however, the White House soon encountered a major obstacle: the Supreme Court. When Hamdan’s lawyers first submitted their appeal, it had been met with silence. According to the author, the press may have helped influence the justices to change their minds and take the case. A member of the defendant’s legal team, Neal Katyal, appealed to a number of reporters (including this one) for coverage. He then enlisted Milt Bearden, a famed former CIA operative, to write a New York Times op-ed urging the court to take the case. The Monday after Bearden’s article appeared, the justices announced that they had granted Hamdan’s petition.
On June 29, 2006, the court handed down its decision. Hamdan v. Rumsfeld delivered a sharp rebuff to the administration. In a majority opinion written by Justice John Paul Stevens, the Supreme Court ruled that the current tribunal lacked the power to proceed under the Uniform Code of Military Justice and the Geneva Conventions.
In response, the president enlisted Congress to approve the 2006 Military Commissions Act, which was supposed to make the military tribunals pass constitutional muster. The new law stripped detainees of their right to appeal in the federal courts via the writ of habeas corpus—a provision that the Supreme Court would eventually strike down, on June 12 of this year. Congress also went some distance toward making the trial procedures more fair (though they still fall short of the due-process protections provided by a court martial). As Mahler explains, “Detainees could no longer be kicked out of the courtroom, they would be able to see all of the evidence against them, and there was now a much stronger prohibition against the use of testimony obtained through torture.”
The ongoing push and pull between the president, Congress, and the courts is why Hamdan v. Rumsfeld matters, and why it was worth all the print and TV coverage that attended it. Yet while his lawyers will bring a fresh challenge to his detention based on the Supreme Court’s June 12 decision, Hamdan himself may well end up where he started—alone in a cell in Guantánamo, without hope of appeal or release. Meanwhile, his lawyers have argued that their client’s experience of near-solitary confinement has made him suicidal and unable to assist in his own defense.
Mahler addresses this anticlimax in his epilogue; it’s a tribute to his writing skills that the ending doesn’t overshadow the entire book. And Mahler deserves great credit for taking on this project in the first place: he has a powerful story to tell, but no straightforward cause or characters to champion. The title of the book’s last chapter, “The Heroes of Guantánamo?,” merits its question mark. Like A Civil Action, the classic of the genre, The Challenge is necessarily written in shades of gray.
Two lawyers stand at its center: Charlie Swift, a bold and sometimes half-cocked member of the Navy’s Judge Advocate General’s Corps, and Katyal, a milder-mannered but passionately stubborn law professor at Georgetown. The pair makes for an excellent odd couple. Swift is the lawyer appointed by the military to represent Hamdan. A skinny-dipper in his Naval Academy days, the add-afflicted crusader drives his superior crazy by charging into his office and talking at him for an hour at a time. His credo, borrowed from Eddie Murphy, is: “Let’s see what we can fuck with next.” Despite (or because of) his excesses, Swift stands for the best that the jag Corps has to offer, at least in Mahler’s portrayal. Yet his unceasing loyalty to his client comes at great cost to himself.
The best evidence of Swift’s utter refusal to roll over for the tribunals, as his superiors expected him to, is his decision to enlist Katyal. The Georgetown professor had originally gone to law school against the wishes of his immigrant Indian father, who had been on the receiving end of a long and difficult lawsuit. Katyal took to his vocation like a natural scholar, immersing himself in the knotty doctrines of constitutional law. By the time he arrived at Georgetown, he was already a star, having clerked for Justice Stephen Breyer, served as co-counsel for Gore in Florida in 2000, and worked at the Clinton Justice Department.
Still, he wasn’t necessarily the obvious choice for helping Hamdan. Katyal had defended some of the Bush administration’s national security moves after 9/11, such as the patriot act. And he was exquisitely attuned to the potential risk that the case could cause to his reputation; both his wife and his Yale mentor cautioned him against representing the man who had chauffeured Osama bin Laden. But Katyal was offended by the presidential order that established the military tribunals, because it cast the executive branch in the role of prosecutor, judge, and jury—an apparent violation of the separation of powers. So when he saw the government urge the Supreme Court to cut off the federal courts as an avenue of relief for Guantánamo detainees, he signed on.
Without talking too disrespectfully out of school, Mahler explores the tensions among Swift, Katyal, their client, and the other lawyers who eventually worked on the case. For anyone who followed this litigation, the insider view is a treat. We see the inevitable wrestling over whose brief-writing strategy is best and who gets to do oral argument. There’s a particularly delightful scene in which Katyal grudgingly agrees to a training session in oral advocacy with a former actor named Joshua Karton, who (to great effect) persuades his pupil to deliver legal arguments while holding his hand. And right before his Supreme Court appearance, Katyal follows another piece of Karton’s advice and sings the theme song from Mister Rogers’ Neighborhood in a courthouse bathroom. Quite a strategy.
Despite these slightly humbling moments, it’s hard not to feel that Swift gets the worst of the partnership. Yes, for most of the litigation, he is the man on 60 Minutes. But he is also the lawyer who is benched during the key brief-writing and arguments. And while the 2006 Supreme Court victory sends Katyal’s “professional stock soaring”—he is offered law-firm partnerships, speaking engagements, and the praise of Chief Justice John Roberts at a black-tie affair—Swift suffers at home and at work. By the end of the book, he loses his wife, his promotion, and his twenty-year Navy career. And Hamdan, meanwhile, may have lost his very sanity.
Still, the real news in The Challenge, at least to me, involves a different sort of loss. Mahler tells us that the FBI’s biggest Al Qaeda expert, Ali Soufan, was eager to interrogate Hamdan, because in the course of investigating the 2000 bombing of the U.S.S. Cole in Yemen, he had talked to Nasser al-Bahri, “the man who had introduced Hamdan to jihad.” Al-Bahri is portrayed as the real catch, the true devotee to Osama bin Laden, who found Hamdan agreeable but scorned him as “almost childlike.”
For the defense, this picture of Hamdan as a wide-eyed subordinate was a definite plus. Meanwhile, the defendant’s familiarity with Bin Laden’s circle, gleaned from his service as the sheik’s driver, made him a gold mine for Soufan. Hamdan identified photos of other bin Laden bodyguards detained at Guantánamo, informed on the Cole bombers, and gave his interrogator information about bin Laden’s post-9/11 whereabouts. Soufan discovered that Hamdan was actually present when Khalid Sheikh Mohammed briefed bin Laden and his deputy, Ayman al-Zawahiri, on the success of the World Trade Center attack.
Given these disclosures, Soufan argued against prosecuting Hamdan. Instead, the FBI agent wanted to induce him to plead guilty and cooperate for a lighter sentence. That seems like the smart and even obvious call, especially because Soufan’s interrogation sessions don’t appear to have involved coercion, and would therefore stand up as clean evidence. Khalid Sheikh Mohammed, on the other hand, was subjected to extensive waterboarding when the CIA interrogated him.
And yet, instead of using Hamdan to fry bigger fish, the Bush administration picked him for the first military tribunal. “Soufan’s access to Hamdan was immediately cut off,” writes Mahler, “and the FBI lost a crucial source of information, as well as a potential key witness in other al Qaeda trials.”
For this and other reasons—including the Bush administration’s insistence that the trials before the Military Commission should go forward as planned—it’s not clear that Mahler is right when he wraps up his book on a triumphant note: “In short, the system worked: the president broke the rules, and the justices, acting equally as the nation’s conscience and the defender of its traditions, stopped him.” This is true enough about Hamdan v. Rumsfeld, at least viewed in isolation. But there is much yet to be written about Guantánamo and the legal procedures that govern the detainees, including the fact that the vast majority of them are still being held without charges.
Part of the challenge for Mahler’s story is that it’s so hard to say what should happen to Hamdan. He drove for Osama bin Laden, after all. He wanted to wage jihad, and according to one photo, may have participated in violence. (His lawyers have denied this.) The release of this “enemy combatant” is virtually impossible to imagine. And yet he has also been held for seven years in near isolation—conditions that would shred anyone’s mental health. During the years of Mahler’s reporting, Hamdan was permitted to speak to his wife in Yemen just once. For most of the time, he lived according to Guantánamo’s strictest regimen: spending twenty-two hours a day entirely alone, taking his meals through a slit in the cell door, and exercising by himself and only at night.
Given the procedural constraints of the military tribunal, Hamdan’s lawyers probably won’t win their argument that Guantánamo itself makes their client unfit for trial. But outside the tribunal’s walls, we might do well to think hard about this larger question: Is justice at Guantánamo simply unattainable?