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

by Jonathan Mahler

An inspiring legal thriller set against the backdrop of the war on terror, The Challenge tells the inside story of a historic Supreme Court showdown. At its center are a Navy JAG and a young constitutional law professor who, in the aftermath of 9/11, find themselves defending their nation in the unlikeliest of by suing the president of the United States on behalf of an accused terrorist in order to prevent the American government from breaking the law and violating the Constitution. Jonathan Mahler traces the journey of their client, Salim Ahmed Hamdan, from the Yemeni mosque where he was first recruited for jihad in 1998, through his years working as a driver for Osama bin Laden, to his capture in Afghanistan in November 2001 and his subsequent transfer to Guantanamo Bay. It was there that Hamdan was designated by President Bush to be tried before a special military tribunal and assigned a military lawyer to represent him, a thirty-five-year-old graduate student of the Naval Academy, Lieutenant Commander Charles Swift. No one expected Swift to mount much of a defense. Not only were the rules of the tribunals, America’s first in more than fifty years, stacked against him, his superiors at the Pentagon were pressuring him to persuade Hamdan to plead guilty. But Swift didn’t believe that the tribunals were either legal or fair, so he enlisted a young Georgetown law professor named Neal Katyal to help him sue the Bush administration over their legality. In the spring of 2006, Katyal, who had almost no trial experience, took the case to the Supreme Court and won. The landmark ruling has been called the Court’s most important decision ever on presidential power and the rule of law. Written with the cooperation of Swift and Katyal, The Challenge follows the braided stories of Swift’s intense, precarious relationship with Hamdan and the unprecedented legal case itself. Combining rich character portraits and courtroom drama reminiscent of Jonathan Harr’s A Civil Action with sophisticated yet accessible legal analysis, The Challenge is a riveting narrative that illuminates some of the most pressing constitutional questions of the post-9/11 era.

Genres: Nonfiction, Law, Politics, History, Legal, War, Military Fiction

352 pages, Hardcover

First published August 5, 2008

Reviews

[Vladimir Ghinculov · Rating 3 out of 5]

The story of the legal defence of Hamdan, Osama bin Laden's driver in various US courts. The general subject attracted me because it seemed interesting. And it is, but the book gives too much details, moreover personal, and even regarding the lawyers, thus becoming bogged down and hard to read. So, it has its pluses and minuses.

[Kevin]

Overall a very entertaining and comprehensive sketch of the lawyers and team involved in the Hamdan v. Rumsfeld case. Good insights into the mechanics of military law, the war on terror, and how cases work through to the Supreme Court.
I would have been interested in hearing more about the hows and whys of the government's rationale for how they created post-9/11 military tribunals, but that wasn't the goal of the book, and I would suspect it has been written on at this point. Perhaps the reading of this book will prepare me for those.

[Laura · Rating 4 out of 5]

Today, I went to a CLE put on by the Washington Courts Historical Society in the courtroom of the Temple of Justice. The first afternoon speaker was Captain David C. Iglesias, who is currently prosecuting terrorism suspects in front of military commissions in Guantanamo (and may or may not be the inspiration for Tom Cruise’s character on A Few Good Men, was fired from his job as US Attorney by the Bush Administration probably because he refused to do politically motivated prosecutions). The second was Admiral Bruce MacDonald (who is currently tasked with deciding whether al-Nashiri, among others, will be prosecuted in Guantanamo). He had me at his condemnation of the first few Military Commission Orders: “Statements taken under torture were allowed to be used. Shameful. Shameful.” Finally, Harry Schneider and Joseph McMillan; major players in this book. Harry let the volunteer coordinator at Perkins Coie know he was ready for a case. This case was offered. “I said exactly what any of you would say when asked if we would sue the President of the United States and the Secretary of the Defense Department on behalf of bin Laden’s driver. ‘I have to run a conflicts’ check.”’

Anyhoo, I read this book several years ago, before I was posting reviews to Goodreads. But now that I know that George Clooney has bought the rights and MATT DAMON is attached to play JAG attorney Charlie Swift WHO I HAVE MET SEVERAL TIMES AND WAS STUDY BUDDIES WITH SOMEONE I ADORE, I dug it up.

This book was a delight on a lot of levels. The case feels good; feels like the vindication of the rule of law over power. And the general rule that congress can’t accidentally suspend habeas.

It takes a hard look at that case as it developed. From the assignment of Swift to represented Hamdan (Harry Schneider said “It was a good day for Hamdan, and a good day for the United States, when Charlie Swift was appointed), to Neil Katyal’s decision to volunteer to help, to the decision to get it started in front of Judge Lasnik, to the Perkins Coie lawyers who made that happen, to the transfer, to the new trial judge’s outrage that Hamdan could be excluded from his own trial to their loss at the DC circuit to their ultimate, moderated, victory—great stuff.

Definitely has a point of view. The government’s side is simply not there. I feel awkward about that. It’s not a hagiography. Katyal comes off as cold; Swift as erratic. I wanted him to be more perfect. Darn humanity.

But that said, it made me feel good to be a lawyer, and to share a law school and friends with Charlie Swift. I loved that Katyal engineered a public relations blitz that may have tipped the court into taking the case. I adore that Katyal saw V for Vendatta right before making the argument. That’s one fraught film to insert into this story; the heroic story of a terrorist who tortures his only friend and kills himself bringing down a fascist government. One of the most gripping moments is the British Army deciding not to shoot British citizens. Katyal singing the theme from Mister Rogers Neighborhood in the Supreme Court’s lawyer’s lounge bathroom. Huh. Also fraught; FOX news called that show out as evil recently. Teaching socialist values or something.

During the Supreme Court argument, Justice Stevens asked point blank if Congress had suspended habeas corpus or not. “I think both,” the government’s attorney said. “It can’t be both,” Justice Stevens snapped back. 273. That’s wonderful. At the CLE today, Harry and Joe put up a transcript of Justice Souter asking if Congress could repeal habeas by implication. My head. It shakes.

A good book. Absolutely worth the time. As was the CLE today. TVW recorded it. Everyone should watch it. Once it’s available. I couldn’t find it tonight. Though I did find a great video of people I know dressed in period costume acting out a 19th century case on women’s right to sit on juries. http://tvw.org/index.php?option=com_t....

[Chrisiant · Rating 4 out of 5]

My kind of book - the legal twists and turns of a momentous case, the political forces knocking things off track and on again, and the personal backgrounds and foibles of the folks involved, both voluntarily and involuntarily.

This is the kind of book I would have really enjoyed before I went to law school - it's a fascinating look behind the scenes of one of the first big cases resulting from the military commissions set up for "enemy combatants" held at Guantanamo Bay. Mahler does a solid job of explaining the obscure legal concepts that come up in a way that I think is accessible to non-lawyers (although it's harder and harder for me to tell - egad), and also spends plenty of time on the personal narratives of Salim Hamdan, the detainee, Charlie Swift, his JAG-assigned attorney, and Neal Katyal, a Georgetown professor (now deputy solicitor general) who volunteers to wade into the case.

[Don · Rating 4 out of 5]

The Challenge is simultaneously: (1) an inspiring tale of the heroic efforts of a legal team to withstand a challenge to America's rule of law and its fundamental three-branch governmental structure; and, (2) a case study of the ongoing tension within our system between powerful individuals and the intentional 'checks and balances' constraints on their authorized exercises of power.

Although The Challenge is focused on America's post-9/11 capture and imprisonment of a Yemeni citizen, his confinement at Guantanamo Bay, and the US intention to try him by military tribunal, the nature of the legal struggles and persistence of the President and his team to assert Presidential authority resonate loudly in the 2025 political context of the book's publication.

A current reality update re: Hamdan's US legal status:
The Challenge ends in early 2008, as Hamdan faces a new military commission trial based on new charges filed by the Bush administration. After the events in the book conclude, Hamdan was found guilty, sentenced, and transferred to Yemen, where he was to serve his sentence (66 months, including time already served). Yemen released him in 2009. In 2012, the U.S. Court of Appeals for the District of Columbia vacated Hamadan's 2008 conviction, finding that his conviction in 2008 for providing "material support for terrorism" was invalid. It was based upon actions taken before his 2001 capture - at which time those actions were not considered to be a war crime under relevant law. His conviction has been expunged.

The Challenge is informative, engaging, and provocative. It provides a lawyer's eye view account of the path of a seemingly straightforward case to its emergence at the Supreme Court as a seminal test of the limits of Presidential authority.

[Mark · Rating 4 out of 5]

A strikingly relevant book about the extent and limitations of presidential power in light of recent events. The author paints a picture of the incredible amount of hard work, dedication, creativity, attention to detail and luck it takes to navigate a case through the American legal system to the Supreme Court. Mahler strikes a good balance between the nuanced and sometimes very important minutia of an intricate legal case, and the broad national and international impacts the decision of one person can have. It's definitely worth the read for those with interest in Constitutional law/interpretation and to appreciate the continual tightrope balancing act between the branches of power.

[Matt · Rating 4 out of 5]

Mahler sets out not only to recount a wonderful legal thriller, but also to exemplify just how far-reaching and undemocratic the Bush Administration sought to be in their tyrannical War on Terror. Depicting a challenge of the military tribunal approach for Guantanamo captives, which makes its way to the US Supreme Court, JAG lawyer Charles Swift and constitutional lawyer Neal Katyal challenge the law and sue the President of the United States along with the Secretary of Defence. What follows is a tale that weaves through the legal system. It tries not only to clarify the rights of detainees, but pokes holes in the rash and undemocratic system the Bush Administration sought to implement, all in the name of 'justice for those who died on September 11, 2001'. Mahler uses historical recounting to show the progression of events, including key legal arguments, to highlight for the layperson the extent to which democracy was being eroded under the noses of the electorate and, to some degree, even Congress. Powerfully written and full of 'a-ha' moments, Mahler captures the story quite effectively while offering his own spin on events. A must-read for constitutional and legal fans alike.

While some have argued that Mahler's book is overly one-sided, I must deflate this argument by agreeing entirely. The casual reader and news watcher will have been inculcated and choked with Bush-era spin, weighing in on the need for these sorts of military tribunals and how detainees should not be treated with the rights of Geneva Conventions or even basic human rights. This argument is not new and has been provided clearly through the memoirs of those in the den of thieves (Bush, Chaney, Rumsfeld), but it is inherently wrong from a legal perspective, as the US Supreme Court ruled in Hamdan v. Rumsfeld. Mahler shows how the arguments made their way to the Supreme Court and Bush's flagrant suspension of the basic rights owed to humans were suspended, all to fan the flames of the public outrage at al Qaeda. What is not expressly argued, but should be clear at the most basic level, is how a country that spouts democratic rights and constitutional protections summarily dismiss them when it suits their needs. If the US Administration chooses to suspend these rights when it is beneficial, how does this make them any better than those they seek to combat? Then again, that argument is too complex for Bush and his cronies to have grasped. It only goes to how that you cannot 'colour by numbers' such discussions for the politically remedial. And now I can step off of my own soapbox

Kudos, Mr. Mahler for this wonderful addition to the discussion of the constitutionality of Bush's arguments surrounding his war-time dictatorship.

Like/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/

[Andrew Skretvedt · Rating 4 out of 5]

An important book.

Setting up the detention facility at Guantanamo Bay will be regarded in time, I think, as one of G.W. Bush's greatest mistakes during his presidency (along with the creation of the DHS, and the 2008 Wall Street bailouts). One can accept the idea of a need to find a place to put the really bad men we've discovered in our so-called "War on Terror." But this books illuminates the corrosion of our foundational American ideals of justice that have resulted from its administration.

My mind frankly starts swimming dizzily when I begin to contemplate all the direct and collateral issues that become involved with the way we've handled the aftermath of September 11, 2001. The terror attacks were and remain one of the greatest tests of American resolve perhaps to ever confront our nation. The Guantanamo Bay detentions are one factor in the 9/11 aftermath which is changing the nature of what it is to be an American. They, at the very least, are making us schizophrenic as we strive to live our everyday existence under some notion of American ideals. Meanwhile, we have this place...where the justice we stand for as Americans, and which we say we'd like to bring to the whole world, does not apply. Gitmo is a place where the rule of men seems superior to the rule of law. If that's true then its a giant step backward, to the inferior place of freedom and justice were most of the world tends to exist, and a rebuke of the optimism for something better which our founders had when they crafted the Constitution.

This is just my chief reaction after finishing the book. Perhaps later I may rewrite this into a true book review. For now, there is something more that anyone choosing to read this book should follow it up with:

Two of the Perkins Coie attorneys who assisted Charlie Swift in the case, went on to become the principal counsel for Hamdan in the ensuing Military Commission trial that took place after the case documented in this book. The story of that trial and an epilogue after Hamdan was finally released from Gitmo to return to his family in Yemen, is part of a moving three-hour presentation given by those attorneys at a place called "The Temple of Justice" in Washington state.

Search for "Hamdan" over at tvw.org, or try following this link:
http://tvw.org/index.php?option=com_t...

[Linda Merker · Rating 5 out of 5]

It's been awhile since I felt strongly enough about a book to recommend it on Goodreads -- but this one definitely makes the cut. Think the title sounds deadly? Think again! It is a page-turner as compelling as any mystery, even though we already now know how the story plays out. It is exhaustively researched, cleanly and gracefully written, and the characters are sympathetically portrayed even at their most unlikeable moments. Best of all, this book revives our hopes for the survival of the rights of all people to basic freedoms and humane treatment under the Constitution at a time when this is by no means a sure thing. (It also makes accessible to the lay reader some of the historical foundations of Constitutional and military law and the arcana of the workings of the Supreme Court -- no small achievement.) It would make a terrific movie, in the tradition of "All the President's Men" -- if only because that would bring this important American narrative to a wider audience than the book will probably have. (Let's see -- George Clooney as the intense law prof Katyal, Leo diCaprio as the flamboyant, idealistic but uneven JAG Swift . . .?)

[Tom · Rating 5 out of 5]

A great read, well, listen as I used the audiobook format, and it did a great job of keeping me awake for two 5-hour drives.

Tells the story of Hamdan (bin Laden's 'driver') and the lawyers who tried (and are still trying) to get him a modicum of justice in the post-9-11 world. Very engaging and well-written. Little of this is really about Hamdan, most of it is about "us", how valiant champions of justice gave up significant portions of their lives and their careers for the principle that our form of justice is available to even "the worst of the worst". The author does an excellent job of profiling the key lawyers fighting against the ludicrous military commissions, and their unlikely and ultimately victorious suit against GWB's claim of extraordinary executive power. Wow, it is a great story, well told.

Yes, I am a Supreme Court junkie, and yes, I am not a fan of GWB and his gang. I think folks of most political pursuasions would find this book engaging and interesting.

[Will Hornbeck · Rating 5 out of 5]

Pick up the latest book remotely related to Supreme Court litigation (looking at you Jeffrey Toobin) and it will be immediately apparent that Neal Katyal was the source of most of the material. For this book, I'm tempted to say that Katyal was the source of almost all of the material.
That being said, it's a great read about one of the most important Supreme Court cases of the first decade of the War on Terror. When people look back and (hopefully) wonder why the United States government held bin Laden's driver in Guantanamo for years without trial, and only gave him a (very circumscribed) trial when the Supreme Court demanded it, this book will be the perfect resource to point to and show that there were those who fought this attempt and won.

[Ira]

"At this, Souter's face reddened in anger. Normally the least confrontational of the justices, a man with the placid demeanor of a small-town librarian, he rocked forward abruptly and cut Clement off. Numerous Court watchers later remarked that they had never seen him so exercised. 'Now, wait a minute,' Souter sputtered in disbelief. 'The writ is the writ. There are no two writs of habeas corpus, one for some cases and one for others.'"

[Catherine · Rating 5 out of 5]

A fast-paced engaging read. Mahler artfully weaves this true life, David vs. Goliath tale to keep you turning the pages. A must-read for any lawyer or anyone interested in American history.

Prof. Katyal, the book's protagonist, was actually my law professor at Georgetown(before Hamdan or the War on Terror). I can attest to the fact that he is as nice as he is brilliant. A first-rate human being.

[John Morse · Rating 5 out of 5]

*Spoiler alert*
Every law student studies this case, but there are so many other important parts of the case that I didn't know about, and it was especially interesting to learn about the case's positive impact on the treatment of other captured suspected enemy combatants. At the end of the book Hamdan is eventually convicted of one charge, but it was later overturned by a federal judge after the book was published.

[Mark Heeyeaah · Rating 4 out of 5]

Disclaimer up front: I'm a law student in the middle of 1L year. So this book was probably more exciting to me that it would be to the casual reader. That said, it is an extremely readable and accessible account of one of the most important Supreme Court cases of the century. I highly recommend it.

[Jenny · Rating 4 out of 5]

This is the definitive book on Hamdan v. Rumsfeld (although it went to print before the August 2008 verdict in Hamdan's military commission trial). I knew that some impressive lawyering had taken place in the case, but this really lays out the high stakes game that was being played.

[Bill · Rating 4 out of 5]

An amazing story and an amazing case told (sure why not?) amazingly well. This is one of those stories that makes a Lefty like me proud to be an American and proud of all those Americans who fight the good fight--and sometimes actually win.

[Breezy · Rating 5 out of 5]

The best kind of non-fiction: interesting, informative, makes you think (and let's you make up your own mind), while you can't help but cheer for all the characters...even those on opposing sides of the argument. :)

[Tim Lundquist · Rating 4 out of 5]

Outside account of Hamdan v. Rumsfeld and the two lawyers who sued the Bush administration--Neal Katyal, now SG in the Obama Administration, and Lt. Cmdr. Charles Swift, a Navy JAG. Interesting tid-bits, but nothing earth-shattering. Sort of a national security version of a Civil Action.

[jennifer]

tom wilner cameo!

ps did you know that katyal listened to 'what's my age again' on the way to argue hamdan at the supreme court?

[Mike · Rating 5 out of 5]

I've read a couple books about the Gitmo situation and this is by far the best story...entertaining and gripping.

[Wwingfield Wingfield · Rating 5 out of 5]

This is an incredible book. It is about couragous men who stood up to Presidency to defend the Constition and prisoner's right.

[Jennifer]

You'd have to really, really like law to enjoy this book.

[Rod · Rating 4 out of 5]

Must read for any TDS atty

[Margie · Rating 3 out of 5]

Most depressing book I ever read, but a fascinating look at the tribunals.

[Martha · Rating 4 out of 5]

a Guantanamo challenge that makes to to the Supreme Court, told from the lawyer's perspective

[Gerry Swimmer · Rating 4 out of 5]

Jonathon Mahler is an excellent journalist and presents an interesting story with a great deal of insight on major characters such as Neal Katyal and the JAG officer involved Charles Swift. The story moves quickly and when reading it one is not held back by the legal issues involved. I enjoy a journalists recount of historical information. I would call Mahler Jeffrey Toobin light It is worth reading