How a Jihadist Curtailed a President’s Authority

Today, the New York Times ran a book review that I wrote on The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power by Jonathan Mahler. The book details the development of the Hamdan case, which ultimately ended in the Supreme Court with a defeat for the Bush Administration.

When Salim Hamdan was born in 1970, the horizon of his life extended little beyond his poor Yemeni village and a life (if he was lucky) as a farmer like his father. He was anything but lucky. His mother died when he was 7, his father when he was 11, and he soon found himself living on the streets of Mukalla. He eventually found work as the driver of a dabab, a beat-up minibus stuffed with riders — making just enough to rent a mattress in a flophouse and a daily supply of the mild narcotic khat to chew away his problems.

Yet, within a few years, this dabab driver with a fourth-grade education would occupy not only a cell in Guantánamo Bay but also the minds of members of the Supreme Court and the president of the United States.

Jonathan Mahler chronicles this extraordinary journey, as well as the lives of the lawyers who transformed Mr. Hamdan into an international symbol in the war on terror.

Like Ernesto Miranda (the inspiration for Miranda rights), Mr. Hamdan is hardly a compelling figure, and his prosecution was not unwarranted. Initially hostile to his non-Muslim lawyers, and an adherent of the most medieval form of Islam, Mr. Hamdan deserved punishment for his service to Al Qaeda. Yet his victory would stand as a critical limitation on the powers of the world’s most powerful leader, requiring that he afford detainees basic protections under the Constitution and international law.

With an engaging writing style and eye to detail, Mr. Mahler, a contributing writer for The New York Times Magazine, takes the reader through Mr. Hamdan’s evolution from a street urchin to one of a handful of “high value” enemy combatants. Recruited from the dirty streets around the Martyrs’ Mosque, Mr. Hamdan joined a ragtag group of jihadists trying to find a path through Afghanistan to Tajikistan to fight the Russian-backed government. When their path was blocked by the fearsome warlord Ahmed Shah Massoud, they ended up starving and wandering jihadists without a cause. They eventually found food and a cause in the camp of a radical sheik recently thrown out of Sudan: Osama bin Laden.

Mr. Bin Laden personally instructed the group in the ways of jihad for three days. Yet, of the 35 jihadists, only 17 stayed — including Mr. Hamdan, although he did not prove particularly strong in either his beliefs or his skills. He was used as a mechanic and a driver for Mr. bin Laden, and he was with him on Sept. 11, 2001, as he negotiated mountaintops to get a satellite signal to allow him to watch the planes crash into the Twin Towers. (Terrorist leaders appear to have the same complaints about television reception as everyone else, and Mr. bin Laden was forced to listen to the events unfold on the radio.)

Ultimately Mr. Hamdan was captured by members of the Northern Alliance, who sold him to the United States for $5,000. There is no evidence that he had ever fired a shot in anger or attained a status above mujahadeen mechanic.

If “The Challenge” offers a good account of the making of an implausible warrior jihadi, it provides an excellent account of the making of equally implausible warrior lawyers. At the center of the story is Lt. Cmdr. Charles Swift of the Navy. He is an example of an ordinary man made extraordinary by historic events.

He began with a decidedly unremarkable career. Struggling with poor grades and infractions at the United States Naval Academy at Annapolis, he was known as “N.T.” for “Not Too Swift” and finished 960th out of a class of 1,006. He did little better at Seattle University Law School, and his most noted feat in the Navy was being caught skinny-dipping with strippers as a midshipman.

Lieutenant Commander Swift had one outstanding characteristic, however, shared with others selected by history: a certain clarity of thought. While others caved in to pressure summarily to try Mr. Hamdan and other detainees, he displayed a stubborn sense of duty to the rule of law.

While Lieutenant Commander Swift would garner most of the accolades from this case, he was not the lone warrior often portrayed simplistically by the news media. While Mr. Mahler gives a full account of the work of the Georgetown University professor Neal Katyal, there is limited discussion of the contributions of Lieutenant Commander Swift’s colleague Lt. Cmdr. Philip Sundel, or the pro bono lawyers Joseph McMillan, Charles Sipos and the other lawyers with the firm of Perkins Coie.

In the same genre as Anthony Lewis’s “Gideon’s Trumpet,” “The Challenge” depicts how the various lawyers struggled with personal and professional adversities to pursue a case that many more experienced lawyers had dismissed. Professor Katyal recalls how he called his mentor, Prof. Ahkil Amar, who encouraged him not to take the case, because it was a guaranteed loser, telling him, “Just hang out at Georgetown, write some articles, and wait for the Democrats to take back the White House.” To his credit that was a piece of advice Professor Katyal ignored.

Famous cases are often treated in historical accounts as if they sprang from the head of Zeus, when in reality they represent years of hard and all-consuming work. This book shows how great legal precedents are established through a series of mundane moments, like child-care conflicts and word-processing glitches.

The one thing that is missing is an understanding of the lawyers on the other side: the darker figures of the story. Lawyers like Prof. John Yoo (who is given passing reference in the book) and Prof. Viet D. Dinh are viewed by many law professors and civil libertarians as grotesque and even monstrous in their work to excuse torture and to deny the basic rights of detainees. They remain cutout caricatures in books examining the tribunals. The better one gets to know the heroes of “The Challenge,” the more one wants to know of its villains and their own ascent, or descent, to this moment.

The book ends after the 2006 Supreme Court’s 5-3 decision, with Mr. Hamdan’s future uncertain. Last month, however, he was tried by a military tribunal and convicted. To the obvious displeasure of many in the Bush administration, the military panel gave him only 5 ½ years — far less than the 30 years prosecutors sought (and notably far less than what he would have likely received if he had been taken immediately to a federal court on terrorism charges). Given his time served, he could be released in a matter of months, but the administration has indicated that it will simply declare him an enemy combatant in order to hold him indefinitely despite the ruling of its own tribunal.

“The Challenge” is not just a very readable account of an important case. It is also an intimate account of the lawyers who overcame personal conflicts, animus and flaws to produce a decision for the ages. It is an intriguing tale of how a unique convergence of personalities propelled an unlikely dabab driver from Yemen to international prominence.

Despite his best efforts and due to the efforts of these lawyers, Mr. Hamden succeeded in making a positive contribution to world — something even his famous passenger cannot claim.

Jonathan Turley is a professor of public interest law at George Washington University and has served as lead counsel in national security and terrorism cases.

For the web version of the column, click here.

4 thoughts on “How a Jihadist Curtailed a President’s Authority”

  1. It would be a more amazing story if the Bush Administration had actually retried Hamdan in a consitutionally sound military court. At least the court gave a slap to Bush when they gave him the 5 1/2 sentence. The next question is whether they will release him at the end of the 6 months? If they do not release him, doesn’t that prove that the military commissons are a farce?

  2. Buzz79,

    I took the headline to mean the events surrounding/including Hamdan (because he had to trust lawyers in an alien system to come through for his rights), so it didn’t personally trouble me. However, I do see how it could be read a different way as you explain above. It was people who believed in and fought for our Constitution who curtailed Bush’s power.

  3. Didn’t you find the headline on the review troubling? It wasn’t Hamdan the jihadist who curtailed Bush’s power, it was the Constitution and the courts.

  4. I will read this book. Another Gitmo detainee. Mr. al-Ghizzawi’s lawyer is described in Ron Suskind’s book, “The Way of the World”. Candace Gorman, his attorney says, “In the U.S., we have rights…If a company or the government breaks those laws…I represent them…And I think your rights are being denied, because you have the right to at least know why you’re being held.” Suskind describes Ms. Gorman’s struggle with whether she’s representing a terrorist and how that is beside the point; “This is about due prcess, about letting the law do its work.”

    Mr. Swift and many others in the JAG took their oath to our Constitution seriously, at cost to themselves. They have been “clear thinkers” at a time when that quality was in short supply. The civilian lawyers who represent detainees have kept faith with our Constitution as well. This is not an easy thing to do and I am grateful there are people with that type of stubborn courage.

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