Checking the balance

The Challenge

Hamdan v. Rumsfeld and the Fight Over Presidential Power

Jonathan Mahler

Farrar, Straus & Giroux: 334 pp., $26

--

No one should mistake the military commission trial and sentencing of Salim Hamdan, famously Osama bin Laden’s driver, as marking the end of his legal problems, or of ours. The Aug. 6 verdict by six military jurors at the U.S. installation in Guantanamo Bay convicted Hamdan of providing material support for terrorism but exonerated him of charges of conspiracy. Sentencing the next day called for imprisonment of 66 months (prosecutors had asked for a minimum sentence of 30 years), but Hamdan has already served 61 months in detention, which has been credited to his sentence. The result? He is likely to complete his sentence by January.

Before, during and since the trial, however, prosecutors and Pentagon spokesmen have raised the possibility that Hamdan could be detained indefinitely as a foreign combatant, regardless of serving out his sentence. That the war on terror entails a war on the right of habeas corpus could not be clearer, and this is one of the principal themes of Jonathan Mahler’s book, “The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power.”

Mahler, a New York Times Magazine contributing writer, has constructed a thrust-by-thrust, parry-by-parry account of the legal fencing match between the executive branch and Hamdan’s military and civilian lawyers, leading to the 2006 Supreme Court decision that declared the military commission process, as it existed then, to be unconstitutional. Events have superseded Mahler’s reporting -- in his epilogue, written in May, Mahler knew neither the future of the commissions nor the fate of another consolidated case regarding Guantanamo detainees, Boumediene v. Bush, which the Supreme Court decided in mid-June.

Yet what Mahler chronicles -- the seesaw process of constitutional challenges to the military commissions -- is of more than historical interest: It is part and parcel of all that has transpired in recent weeks and a portent of the future as well. As U.S. District Court Judge James Robertson (whose 2004 decision in Hamdan v. Rumsfeld set the case on its course toward the Supreme Court) has observed, the military commissions, despite some improvements, depart from other courts in allowing the introduction of hearsay evidence and, startlingly, evidence produced under coercive circumstances. Charlie Swift, a Navy attorney representing Hamdan (he is still on Hamdan’s legal team, now as a civilian) who is a major figure in Mahler’s book, considers it likely that his client’s fate will again be debated in federal court.

As early as Sept. 14, 2001, Mahler notes, the Washington Post reported that President George W. Bush was considering trying suspected terrorists as war criminals, using military tribunals rather than civilian courts. The idea originated with former Atty. Gen. William Barr and “instantly found traction among the president’s senior legal advisers,” including then-Atty. Gen. Alberto Gonzales and Vice President Dick Cheney’s chief counsel, David Addington, Mahler reports. The development process undertaken by a self-styled “War Council” was so “extraordinarily secretive” that neither Secretary of State Colin Powell nor National Security Advisor Condoleezza Rice knew of the president’s order for military commissions until after it was signed on Nov. 13, 2001.

By the spring of 2002, what in hindsight appears a prophetic critique appeared in the Yale Law Journal, co-written by Harvard law professor Laurence Tribe and Georgetown professor Neal Katyal. The pair took issue with the fact that Secretary of Defense Donald Rumsfeld was directed, “without advance notice to either the congressional leadership or the public,” to create military tribunals and take into custody anyone named as subject to the order; the tribunals were authorized to operate in secret. Further, Tribe and Katyal wrote that the order’s language “strongly suggests a desire to eliminate even habeas corpus review of the legality of the entire scheme and of the tribunals’ jurisdiction over particular individuals” and that the presidential directive was “flatly unconstitutional.” They added that legislation would be required if the commissions were to survive judicial invalidation, especially when “civilian courts created by Congress [were otherwise] fully capable of adjudicating the cases.”

In the half-dozen years since Tribe and Katyal’s analysis appeared, rule changes by the executive branch as well as related legislation -- such as the Detainee Treatment Act of 2005 and Military Commissions Act of 2006 -- and judicial invalidation by the Supreme Court in several related cases have indeed occurred. Often, at the center of contention, has been the right to habeas corpus and adherence to Geneva Conventions requirements, along with questions of defendants’ rights to see evidence and the admissibility of evidence obtained under coercive circumstances.

--

An unpopular cause

Katyal became the legal heavyweight who argued Hamdan v. Rumsfeld before the Supreme Court, and his client, as Mahler writes, became “the first Arab defendant in America’s first war crimes trials in more than fifty years.” Mahler closely details the movements of major players in the case, both military and civilian. We see Hamdan himself at secondhand, mostly through reports of Lt. Cmdr. Swift’s visits to Guantanamo. The military’s prosecutorial officers are presented even more sketchily, although Mahler has great instincts for the juicy quotation. For example, Air Force Col. Will Gunn was named chief defense counsel for the military commissions early on and assigned attorneys to detainees as they were named for trial. Gunn recalled, Mahler writes, being advised by Pentagon general counsel William Haynes that the Defense Department wanted lawyers who were “loyal to the military commission process” and not “Johnnie Cochran types.” Swift, an extremely passionate advocate with a propensity for showboating, was assigned to the case regardless.

Swift, his Navy co-partner Lt. Cmdr. Philip Sundel and Katyal (the son of an immigrant who arrived here from India in the 1960s with $8 in his pocket) also benefited from significant pro bono work by the Seattle-based law firm Perkins Coie. Much of Mahler’s book centers on the behind-the-scenes conflicts among these attorneys, whose aims coincided but whose approaches varied drastically as they traversed untested legal terrain. Katyal favored kitchen-sink style, broad, complex and intricately annotated arguments, while the Perkins Coie crew preferred slimmed-down, narrower -- and to them, more focused -- legal briefs. Swift’s steady stream of visits with Hamdan in Guantanamo gives us a sense of his concerns for the seemingly fragile mental health of his client and we also get a picture of detention camp life, involving solitary confinement and hunger strikes. (Swift and Katyal were principal sources for Mahler’s account.)

Much of the premise behind detentions and military courts hinged on certain assumptions, among them that Guantanamo was not U.S. sovereign territory and habeas corpus would not apply, that classifying a detainee as a foreign combatant changed the ground rules and that the Geneva Conventions did not guarantee individual rights that could be enforced in U.S. courts. Mahler also covers Rasul et al. v. George W. Bush et al. (2004), which “radically shifted the landscape” when the Supreme Court overturned an appellate decision and allowed federal courts to review detainee challenges to potentially indefinite detention and gave detainees access to civilian counsel.

When Hamdan’s case landed in Judge Robertson’s courtroom, he granted Hamdan’s habeas petition, finding that he could not be lawfully tried by a military tribunal convened only by executive order; that the structures and procedures in place violated both the Uniform Code of Military Justice and the Geneva Conventions, and that the charge against Hamdan of conspiracy was not a violation of laws of war and thus not subject to trial by military commission.

Robertson was reversed when the government took the case to federal appellate court; then the Supreme Court heard the case and in June 2006 reversed the appellate court, upholding virtually every aspect of Robertson’s ruling. During oral arguments, Justice David H. Souter told the government’s advocate: “There are not two writs of habeas corpus, one for some cases and one for others.” Hamdan’s case, Mahler writes, “was about nothing less than the president’s obligation to comply with the law.” Boumediene, the Supreme Court case decided in June, ruled that a section of the Military Commissions Act -- specifically written to overcome the demands of the Hamdan case -- was unconstitutional, finding a constitutional right to habeas corpus applied to Guantanamo detainees.

Incidentally, when Swift and Katyal traveled to Guantanamo to meet with Hamdan after the Supreme Court decided in his favor, a guard going through Katyal’s papers said his copy of the decision was not allowed in the prison, for “security reasons.” Katyal protested and, after a 30-minute delay, was allowed to bring it in.