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

4.0 3
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 ways: by suing the president of the United


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 ways: 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.

Editorial Reviews

Jonathan Turley
With an engaging writing style and eye to detail, Mr. Mahler…takes the reader through Mr. Hamdan's evolution from a street urchin to one of a handful of "high value" enemy combatants…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.
—The New York Times
Publishers Weekly

In this account of the momentous Supreme Court case Hamdan v. Rumsfeld, Mahler (Ladies and Gentlemen, the Bronx Is Burning) profiles key figures of the defense: JAG lawyer Lt. Cmdr. Charles Swift, constitutional law professor Neal Katyal and the defendant, Salim Hamdan, Osama bin Laden's former driver. The book chronicles this legal odd couple-Swift, the gregarious blowhard, and Katyal, the diligent straight man-as they struggle to keep their client alive in Guantánamo Bay and craft a case challenging the legality of President George W. Bush's military tribunals. The author narrates their burgeoning relationship with each other and their client-in one endearing passage, Swift seeks counseling for his relationship with Hamden at the same time that he seeks therapy to save his marriage. While Mahler skillfully humanizes the characters and institutions at the heart of the case, the book sags under detailed forays into arcane aspects of the American justice system and irrelevant personal vignettes that feel forced and slow the pace. For whatever dramatic tension the book lacks, Mahler amply conveys the heroism of his protagonists. (Aug. 13)

Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.
Library Journal

In the case of Hamdan v. Rumsfeld(2006), the Supreme Court ruled that military tribunals established by the U.S. government to try its Guantánamo Bay detainees were unconstitutional. Mahler (New York Times magazine; Ladies and Gentlemen, The Bronx Is Burning) bases this book largely on interviews with the two principal defense attorneys, Neal Katyal, a Georgetown University constitutional law professor, and Charles Swift, of the U.S. Navy's Judge Advocate General's Corps. Mahler does an excellent job of presenting the complex legal issues surrounding the case in a highly readable manner, but at the book's heart are his characterizations of Katyal and Swift and their relationship with each another, with their families, with the military, and with their client, Salim Hamdan, a Yemeni man captured in 2001, as they worked passionately, and against high odds, to win the case. While the book is a great read, its impact may be diluted because the further fate of the military tribunals, and of Hamdan himself, remains unclear, matters of decision in subsequent litigation. Highly recommended for all law, public, and academic libraries. [See Prepub Alert, LJ4/15/08.]
—Bob Nardini

Kirkus Reviews
Near-exhaustive account of what some Supreme Court watchers consider "the most important decision on presidential power ever."Three days after 9/11, George Bush set in motion a program to try suspected terrorists as war criminals, not civilians, through military tribunals. The tribunals would be convened abroad, not just for security reasons but also to keep strict control over what information could leave the courtroom. An air base in Germany was considered and rejected, lest the Germans "try to exert a degree of authority over the facility," as New York Times Magazine contributor Mahler (Ladies and Gentlemen, the Bronx Is Burning, 2005) notes. The Marshall Islands and other Pacific outposts lacked sufficient infrastructure. But Guantanamo Bay served well-it was remote from the press, yet accessible to the mainland. Up early for trial was a Yemeni jihadist named Salim Hamdan, initially recruited to go to Tajikistan and join an Islamic insurgency against the Russian-backed government. Instead, he fell in with Osama bin Laden in Afghanistan and worked as his bodyguard and driver. Captured in the American invasion, Hamdan was transferred to Cuba in December 2003. He made an ideal, low-hanging-fruit kind of defendant, since, among other things, he hadn't been rendered to a third country for interrogation, "which would open the door for his defense attorney to raise questions about his treatment." His defense attorney was a troubled naval officer who both belonged to the ACLU and recognized that he was committing career suicide, and who drew on a wide network of legal allies to press a constitutional case that argued, at its basis, that the president was overstepping the bounds of hisauthority. The argument made for strange allies (Ken Starr, anyone?) and an impressive array of foes, but it worked, convincing even a conservative Supreme Court. Naturally, the military and administration are working to get around the Court's decision, but for a brief moment, Mahler concludes, "the system worked."Though sometimes bogged down in legal minutia, quite understandably, Mahler's fluent account of events is essential reading for students of constitutional law-and anyone concerned with civil rights.

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Farrar, Straus and Giroux
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The Challenge

Hamdan V. Rumsfeld and the Fight Over Presidential Power

By Jonathan Mahler

Farrar, Straus and Giroux

Copyright © 2008 Jonathan Mahler
All rights reserved.
ISBN: 978-1-4299-3312-4



LT. CMDR. CHARLES SWIFT came bounding down the hallway of his JAG detachment at Mayport Naval Station in Jacksonville, Florida, early on the morning of September 11, 2001, a backpack slung over his shoulder and a large Starbucks coffee doused with half–and-half in his hand. He wore blue shorts, a faded white polo shirt, and boat shoes. At forty–one he had the padding and confident posture of the formerly athletic, along with a weathered complexion and an overgrown crew cut of sandy hair. As he made his way toward his office, his gait was unmistakable; he didn't so much walk as bounce on the balls of his feet, his toes pointed out.

Swift's mind was whirring. He had a big trial about to get under way, the court-martial of a chief petty officer who'd been accused of stealing thirty–five thousand dollars from the cash register at a gas station where he'd been moonlighting. The defendant had confessed to the crime, but Swift was trying to stave off a bad conduct discharge and save the man's pension by arguing that he suffered from a clinical compulsive disorder; his client had used all of the money he'd stolen to buy women's underwear on eBay. Swift had lined up a psychiatrist who was going to testify that it was an illness that could be treated through therapy. During his opening statement, which Swift was still formulating in his head, he was going to talk about the goals of punishment–to encourage rehabilitation, not to satisfy a desire for retribution–and the importance of helping people.

Inside his office, Swift fished a Jay-Z CD out of one of the piles on the desk, tore open a fresh pack of Nicorette–he'd recently quit Copenhagen–and removed a crisp white uniform from a hanger on the back of his door. Swift had learned long ago that the only way to keep his uniform clean was to keep it in plastic until the last possible moment. Since then, changing into his dress whites had become part of his pretrial ritual, along with listening to rap music, which, as he liked to say, put him in the mood to take down the man.

Swift made his way down the hall of the single-story concrete building, toward the military courtroom. On his way he noticed a cluster of people gathered around a television set, watching smoke pour out of a skyscraper. One of them said that there had been an accident; an airplane had flown into the World Trade Center.

Swift, whose wife was training to become a commercial pilot, knew that planes didn't veer so far off their flight paths accidentally. He also remembered the car bomb that had gone off in a garage under the Twin Towers in 1993. "That's a terrorist attack," he announced to the cluster of people before heading down the hall to the courtroom.

Once there, Swift urged the judge to postpone the proceedings but was refused, and jury selection began as scheduled. It wasn't until both towers and the Pentagon had been hit that all nonessential personnel were ordered off the base and he went home.

Swift's wife's flight school, which was three hours away in Vero Beach, was closed indefinitely, and she soon joined him in Jacksonville. They watched the news coverage of the attacks in horror: the jumpers falling through the sky, the towers collapsing in on themselves, the ash-caked swarms emerging dazed from lower Manhattan.

When Swift set out for work the following morning in his silver Honda convertible, he saw a line of cars four miles long waiting to be searched by military police at the entrance gates to Mayport and turned back around. His commanding officer, Capt. Bill Sweeney, called him at home a few hours later to find out why he wasn't at work. "The last thing you need right now is a defense lawyer," Swift told him.

CHARLIE SWIFT-no one except his wife and parents called him Charles–was, by both reputation and self-profession, one of the most zealous defense attorneys in the JAG Corps. The notion of law school had first occurred to him in 1990, when he was a twenty-nine-year-old surface warfare officer, the navigator of a Navy frigate called the Rathburne. One of Swift's collateral duties was chief legal officer, so when a few of the Rathburne's sailors were arrested one night in a port town in Malaysia for smoking pot, it fell to him to negotiate their release. Swift made a time-honored defense lawyer's argument on their behalf: because the sailors had only one joint among them, only one of them could be guilty of possession. By sunrise he had managed to spring two of the men and got the third moved out of the prison's basement.

At the time, Swift's commitment to the Navy was nearing its end, and he was coming to the conclusion that he should probably leave the military. He was a natural seaman, a gifted ship handler and engineer who invariably excelled at tasks that interested him. But he had an exceptionally low tolerance for tasks that didn't and an almost involuntary disregard for military decorum. As a result, his performance had been erratic, as underscored by his wildly inconsistent fitness reports, the Navy's version of annual performance reviews.

At the end of Swift's first year of duty, his commanding officer rated him the top junior officer on his ship, the Niagara Falls. Not long after, the Niagara, which carried supplies to the Navy's South Pacific fleet, came under new command. Because this was the tropics and the ship was always loaded with groceries, roaches were a problem. The most efficient way to fumigate was to keep most of the crates of food on one side and spray the other, giving the Niagara a permanent list. On his second day on post, Swift's new commanding officer ordered him to fix it. Swift told him that that wasn't necessary; the ship had plenty of reserve stability. "I don't give a damn," the CO shot back. "I want that list off my ship." Swift left his CO's stateroom and returned a few hours later with a stack of charts and graphs, intending to demonstrate why the list wasn't affecting the Niagara's performance. When the junior officers were next ranked, he had dropped to dead last.

Swift's law school options had been limited. He had performed well on the Law School Admission Test, but to call his college career undistingished would be generous; it had been an almost crushing disaster.

When Swift arrived at the United States Naval Academy in 1980, he more or less fitted the profile of the average incoming midshipman. He had grown up in Franklin, a small town in western North Carolina, where he was an Eagle Scout and varsity athlete with obvious intellectual aptitude. As it turned out, though, Swift, the adopted son of a forest scientist and schoolteacher, was utterly ill-suited to the academy. The physical challenges were not an issue: Swift, a standout wrestler who had worked summers at a ruby mine in Franklin, was fit and strong and had a high threshold for pain. But nearly everything else was.

Swift's problems started not long after he and the rest of his class assembled inside the gates of the academy, a formation of granite buildings and manicured playing fields on the banks of the Severn River in Annapolis, Maryland, and took an oath to defend the Constitution. The best way to get through plebe year was to lie low, but this was impossible for Swift: he walked funny, his uniform was never squared away, and his cover–or cap–was usually askew. It wasn't just that he didn't look the part, though. He also struggled to march in step and stumbled through his chow calls, a morning ritual in which plebes are forced to stand at full attention and recite an endless stream of information–the day's menu in the mess hall, the names of the officers of the watch, how many days until Navy beats Army–with upperclassmen's jaws in their faces. Plebes were expected to limit their answers to questions from upperclassmen, preferably to "No, sir!," "Aye, aye, sir!" or "No excuse, sir!" But Swift, an impulsive and compulsive talker, had trouble keeping his word count down. It wasn't long before people were calling him N.T., for Charles "Not Too" Swift.

It was sometimes hard to tell whether Swift was simply tone-deaf to the academy's peculiar subculture or deliberately defying it. "Charlie was in great shape physically, and he knew his ships and aircrafts, but he was a little spacey," recalled Gina DiNicolo, one of his closest friends at the academy and his date to the first dance of his plebe year, despite the taboo against dating fellow midshipmen. "He wasn't weak, but he was different, and the attitude was: He's different, he must suffer."

And he did. Hazing had long since been banned from the Naval Academy, replaced by a kinder, gentler form of persecution known as plebe indoctrination. The second semester of Swift's plebe year, however, coincided with the publication of James Webb's A Sense of Honor, a bestselling novel set at Annapolis during the Vietnam War that inspired upperclassmen to revive such long-dormant practices as forcing plebes to sleep naked on their metal bedframes.

When a roommate of Swift's came in for some particularly harsh abuse, an investigation was launched. Swift elected to tell the truth rather than protect the upperclassmen who had been accused of the misconduct. Soon Bancroft Hall, the massive dormitory that housed all forty-eight hundred of the academy's midshipmen, became a gauntlet of upperclassmen looking to mess with him. His chow calls were extended so that he'd receive demerits for being late for morning formation, his uniform and room inspections continued until an infraction was discovered, and he was overloaded with mandatory "professional reports" on arcane naval subjects.

Somehow he made it to the Herndon Monument Climb, the June ritual in which outgoing plebes knock a "Dixie cup"–the white canvas hat worn by first-year midshipmen-off a lard-slathered twenty–one-foot-tall obelisk. Swift's difficulties outlasted the ordeal of plebe year, though. Often they were self–inflicted and alcohol-related. He spent the better part of his junior year on campus restriction and disciplinary probation after racking up a string of offenses: an admiral's wife busted him skinny-dipping with a group of strippers; he was arrested after getting into a fistfight at a bar in Georgetown; he was hospitalized with alcohol poisoning.

Swift was scraping bottom academically too. The academy system rewarded nothing so much as efficiency; though it would not be diagnosed until many years later, Swift suffered from acute attention deficit disorder. He had a tendency to drift off during lectures and was easily distracted from his homework. He had succeeded in high school by virtue of his raw intelligence, but at the academy, where midshipmen were allotted just three hours a day to study, his difficulty in maintaining concentration proved a severe liability. In four years Swift flunked three classes-chemistry, thermodynamics, and celestial navigation–and was sent before two academic review boards, where he was grilled by a panel of officers who were responsible for determining whether he should be separated or retained. The second time, his junior year, he almost certainly would have been expelled had it not been for the intervention of his uncle, a distinguished Annapolis graduate and two-star admiral. "I'm going to see you one more time," Bud Edney, the commander of the midshipmen, told Swift at the time, "when I hand you your diploma or when I separate you."

Swift may never have made it had it not been for Deborah Breaden, a petite brunette whom he met one Saturday night at a dance at Dahlgren Hall, an old armory that doubled as a campus bar and disco on weekends. A week later Swift took Debbie, a senior in high school who lived with her grandmother in Annapolis, to the Ring Dance, the formal ceremony where juniors are presented with their class rings. "I fell head over heels with the guy immediately," Debbie later recalled. "He just seemed to exude this incredible energy. The best way to describe him–even though it's a word usually used for women–is 'vivacious.'"

Swift's performance at the academy instantly improved. He now had an incentive to keep his weekend privileges, and for the first time he was focused on his future.

Few midshipmen actually enjoy being at the academy: the saying goes that it is the only institution of higher learning where you can get a $250,000 education shoved up your ass one nickel at a time. Yet by the time they are done, even those who hate the academy the most–perhaps especially those who hate the academy the most–tend to recognize that it has changed them.

The Naval Academy's goal isn't simply to educate midshipmen. It is to develop them "morally, mentally, and physically" to defend their nation. Between the culture, the coursework, and the ubiquitous reminders of heroism–the ribbons that decorate the uniforms of instructors, the monuments that dot the campus–it is a lesson that usually sticks. "The Academy reinforced your love of country," wrote Robert Timberg, an Annapolis alumnus, in his book The Nightingale's Song. "It was not blind affection, and certainly not an overweening patriotism. You knew the United States had its faults, serious ones ... But you also felt an optimism that the country could come to grips with its problems if given a chance. That was your job, to give it a chance. You were to be its protector, and that seemed like a worthwhile way for a man to spend his life."

In addition to bestowing midshipmen with this new sense of duty and optimism, Annapolis left many with profound, if ambivalent, feelings about it. Swift was no exception. As a plebe he had hung a sign in his room that read YOU ARE BEING PAID $545 A MONTH TO GET OUT OF BED and signed his letters home "A citizen of Stalingrad." Yet nine months after graduating–960th out of a class of 1,006–he donned his dress whites and married Debbie beneath crossed swords in the Naval Academy's chapel.

LAW SCHOOL WAS A STRUGGLE for Swift too. He had a knack for spotting issues and grasping concepts, but he was frustrated by the formality of legal writing and became tangled up in his own thoughts. He fell behind in classes that failed to hold his interest. His grades suffered, awakening in him feelings of inferiority and self-doubt that he chased away by drinking rather than studying, which only accelerated his downward spiral. Debbie grew concerned about his sinking self-esteem, not to mention the increasing amount of time he was spending in bars. She was teaching grade school at the time and had encountered several children with ADD. It occurred to her that Swift had all the same symptoms, both good and bad: restlessness, distractibility, forgetfulness, and a tendency toward addictive behavior on one side of the ledger; intuitive intelligence and creativity on the other. She suggested that he get tested, and he came up positive.

The diagnosis came almost as a relief to Swift. Gradually, with the encouragement of Debbie and a couple of his professors, he began to turn things around. He stopped drinking and discovered that by writing out his briefs as if they were mathematical equations rather than essays, he could avoid tying himself up in knots.

In 1993, Swift graduated from Seattle University Law School with honors. He wasn't planning to return to the military, but a job that he'd been counting on in a small division of the Justice Department that specialized in maritime law fell through. After two miserable months as an associate at a medium-size law firm in Tacoma, he sent in an application to the JAG Corps.

Created by George Washington in 1775, the JAG Corps likes to call itself the oldest law firm in the nation, but for the better part of its first two centuries it was largely devoid of lawyers. Soldiers accused of misconduct were effectively at the mercy of their commanders. This was by design. The court-martial system existed to advance the principal goal of military justice, which was to enforce discipline, not to dispense justice. The public raised few objections. The military was a small, distinct society. What it did to keep the country safe was its business.

World War II ushered in sweeping changes, though. Sixteen million Americans from every class and professional background answered the call to serve. Many were exposed to the military's conception of justice–during the war, there was an average of sixty court-martial trials a day–and few liked what they saw. What's more, America emerged from the war as the premier superpower, the world's defender of freedom. To meet the nation's new responsibilities, the armed forces would need to expand, and these new peacetime recruits could not be expected to sign away all of their rights in order to join the military.


Excerpted from The Challenge by Jonathan Mahler. Copyright © 2008 Jonathan Mahler. Excerpted by permission of Farrar, Straus and Giroux.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Jonathan Mahler, a writer for The New York Times Magazine, is the author of Ladies and Gentlemen, the Bronx Is Burning (FSG, 2005).

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