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The Challenge How a Maverick Navy Officer and a Young Law Professor Risked Their Careers to Defend the Constitution--and Won

Jonathan Mahler

Picador

0312428855

9780312428853

Trade Paperback

368 Pages

$16.00

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A New York Times Book Review Notable Book

The Challenge tells the inside story of a historic Supreme Court showdown. At its center are a Navy JAG and a 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.

REVIEWS

Praise for The Challenge

"[The Challenge] tells the story of a captive who gave his name to a great constitutional decision; and it describes the personal struggles of his lawyers, their courage, and their faults . . . A work of rare drama."—Anthony Lewis, The New York Review of Books

"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 . . . 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 . . . 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 . . . 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 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 the world—something even his famous passenger cannot claim."—Professor Jonathan Turley, The George Washington University Law School, The New York Times

“In November, 2004, thirty minutes after a military commission convened at Guantánamo Bay to try Salim Hamdan, Osama bin Laden’s former driver, news came that halted the proceedings: Hamdan had won a lawsuit, Hamdan v. Rumsfeld, brought on his behalf by a diverse group of lawyers. Mahler is the author of a book about the 1977 Yankees, and, once again, he excels at telling the story of a talented, fractious team coming together for a greater goal: Charles Swift, a naval officer whose passionate commitment to the case scuttled his career and his marriage; Neal Katyal, a brilliant scholar whose arrogance alienated his allies; and Hamdan, a desperate, furious cipher. The case, which reached the Supreme Court, resulted in what one scholar called 'the most important decision on presidential power ever,' but did not bring Hamdan’s release; indeed, despite a subsequent trial and a relatively light sentence (handed down after Mahler’s book went to press), the Administration reserves the right to hold Hamdan indefinitely.”—The New Yorker

"One recalls the ethically simple Gideon's Trumpet when reading the latest great-case narrative, Jonathan Mahler's The Challenge. The book leads up to the court's second-most-recent, and its most important, Guantanamo case. In its 2006 decision, the court decided 5-3 (with Chief Justice Roberts recused) that the perfunctory military commissions President Bush established to try the Guantanamo detainees violate both the Uniform Code of Military Justice and the international law of war. The decision was a critical reaffirmation of America's most basic principles of due process, for the commissions had allowed evidence obtained through torture and excluded detainees from their own trials. Nevertheless, telling the story of the case is a fraught business because Salim Hamdan—who was found guilty of aiding terrorism by a military jury earlier this month—freely admits that he was Osama bin Laden's driver and bodyguard . . . The Challenge is a riveting read. Mahler, a writer for the New York Times Magazine, expertly paces the story of Hamdan's twin fights to beat war crimes charges before his Guantanamo military commission and to prove the illegitimacy of the commission process in a federal habeas corpus lawsuit (the case that went to the Supreme Court). The book not only chronicles one of the most important cases of our time but also illuminates the various stages of the federal appellate process, from brief-writing to procedural snares—especially the clever maneuvering needed to keep Congress from stripping the Court of its jurisdiction—to the knee-knocking oral argument."—Michael O'Donnell, San Francisco Chronicle

"[Mahler] 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 . . . 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."—Art Winslow, Los Angeles Times

"An excellent legal thriller . . . It's through Mahler's brilliant narrative of these characters that he weaves together the broader, legally complex story of Hamdan v. Rumsfeld."—The Toronto Star

"The Challenge, by Jonathan Mahler, is a step-by-excruciating-step retelling of the three years Messrs. Swift and Katyal spent researching, writing, traveling, interviewing and arguing—both in the courtroom and with each other—as they raced the clock to stop the government’s efforts to try Mr. Hamdan on its terms. Or, as Mr. Swift puts it, 'gazing down the barrel of 1600 Pennsylvania Avenue' . . . The book is both exhilarating and exhausting, much as the experience itself must have been. It’s also not, in the end, about Mr. Hamdan, but about Charles Swift and Neal Katyal. Mr. Mahler is diligent in detailing the immense difficulty both lawyers faced in representing a man who spoke no English, lived for long stretches in what amounted to solitary confinement and had virtually no idea what was happening in his case, let alone in the world at large. Their visits with him at Guantánamo were highly restricted, at best, and each time they returned to a country anxious to make someone pay for Sept. 11 . . . Mr. Mahler's prose is clear and sure-footed . . . As any lawyer knows, the law consists of vast swaths of procedure punctuated, as in opera or baseball, by explosions of drama and intrigue. It doesn’t matter that a good argument can be made for any particular detail in the book; an engaging retelling of a long legal battle must telescope months or years of mindnumbing motions, stays, reply briefs, reconsiderations and the like in order to linger on the good parts. Anthony Lewis’ Gideon’s Trumpet—a masterpiece of the genre, as well as an obvious model for Mr. Mahler—focused on one man’s petition to the Supreme Court, and quoted extensively from the oral argument there, to great effect. Likewise, The Challenge kicks into high gear as the lawyers prepare for their argument before the Court. Mr. Katyal’s anxiety over what is essentially his first legal argument is palpable; he practices for months before the best legal minds in the country, and beats himself up for days when it doesn’t go well. In the moments before the case is called, he thinks he’s made a terrible mistake by insisting, against all advice, on arguing it himself. No doubt, the preceding 250 or so pages make the climactic argument at the Supreme Court that much more thrilling. They also create a critical historical record of a watershed moment in American history."—Jesse Wegman, The New York Observer

"The author brings his trademark combination of bulletproof reporting and dazzling storytelling to one of the most important legal battles of the 21st century: the Supreme Court trial of Salim Ahmed Hamdan, a suspected Al Qaeda operative and President Bush’s original target in prosecuting agents of terror . . . Mahler follows two rogue lawyers shepherding the case all the way to the Supreme Court, where they succeed in convincing five out of eight justices that the proposed tribunals are unlawful. The author brings characters to life with subtle details such as one lawyer’s pre-trial iPod playlist and the snacks that Lt. Comdr. Charles Swift brought to Guantánamo to win Hamdan’s trust. As entertaining as any John Grisham novel, Mahler has produced a work of critical historical significance—one that shows what it takes to go up against the leader of the free world and win."—Nicole Tourtelot, Time Out New York

"Mr. Mahler, one of the band of brilliant reporters who started on the Forward in the 1990s, has, among other gifts, a tremendous sense of timing. He began work on the story several years ago for the New York Times Magazine, but his book is hitting the stores just as a panel of officers is preparing to deliver, as early as today, a verdict in the case against Mr. Hamdan—the first verdict from a military commission since World War II. For those who thrill to what might be called the geology of American constitutional bedrock, The Challenge is a riveting read. It reminds us of the richness of our constitutional ore—and of the amount of work and of lawyering that goes into refining those riches."—The New York Sun

"In Mahler's account, Swift describes how he found himself, in the aftermath of 9/11, dispatched to Guantánamo to represent an alleged terrorist. The terms of Swift's military travel orders to Guantánamo spelled out that his assignment was to arrange his client's plea agreement—a guilty plea. The alleged terrorist, Salim Hamdan of Yemen, was in his third year of U.S. detention when Swift met him. Only one problem, as told in Mahler's book: Hamdan told Swift, his first-ever lawyer, that he was innocent. That was music to the ears of Swift and like-minded defense attorneys. They didn't like the war court the White House had created at Gitmo because it had, in the name of national security, swept aside protections established after World War II. The case of Hamdan—Osama bin Laden's driver in Afghanistan—was their chance to question the legitimacy of Guantánamo. As we now know, a jury of military officers convicted Hamdan in August at a military commission, then sentenced him to time served plus the rest of the year. He could be free before President Bush leaves the White House . . . Mahler spotlights the band of attorneys who came from the military, academia and the white-collar private sector to defend Hamdan. Mahler describes how Hamdan's lawyers kept their egos in check, adopted astonishing discipline to ultimately prevail at the Supreme Court. There, the justices ordered the White House to restore discarded sections of the Geneva Conventions, notably the one that guarantees a detainee's dignity. Hamdan v Rumsfeld reasserted the right of Guantánamo detainees to challenge their detentions in federal court. The justices also rejected the idea of a White House-mandated war court, making it clear that congressional approval was needed before a new system of justice could be created. The Hamdan decision was central and early in the civil liberties struggle for war-on-terrorism detainee rights. But, some legal experts saw it as a turning point, when the pendulum began to swing away from executive power."—Carol Rosenberg, The Miami Herald

"Mahler's account of Hamdan's treatment at Guantanamo Bay makes The Challenge an important book . . . Mahler also provides a service in highlighting the work of both military and civilian defense attorneys working on behalf of Guantanamo Bay detainees. Mahler describes the skepticism of military attorneys about the military commissions that would try the prisoners at Guantanamo Bay."—Carol A. Sigmond, The Federal Lawyer

"I was in the Pentagon on 9-11, and in its aftermath, I witnessed the most remarkable and chilling attempt to consolidate and abuse executive power, circumvent and ignore the rule of law, and reverse engineer due process and the rules of evidence to deny our newest enemies a fair trial. The Challenge is the riveting and very inside story of an unlikely coupling of two lawyers from two very different legal worlds, one military and one academic, who joined forces to restore our jurisprudential values. Jonathan Mahler captures the essence of their personalities and the truly heroic battles that they fought in a way that is both informative and fascinating. Do not get too comfortable though. This struggle—of epic constitutional proportions—continues, and every American who holds freedom dear must be educated about the dangers of executive power run amok. The Challenge is the book that will anchor that education."—Donald Guter, retired Admiral and former Judge Advocate General, U.S. Navy; Dean, Duquense Law School

"This is the definitive work on an epic Supreme Court case—and on the human beings behind the headlines."Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court

The Challenge is a rare achievement—a book as involving as it is important. The characters (real people, powerfully sketched) and the narrative (gripping as a movie) make Jonathan Mahler’s book impossible to put down. And yet beneath the turning pages there’s a firm spine: a profound meditation on what patriotism means and how durable our Constitution is. The classic American story: upholding the rules, meeting the standard, at high personal cost. This book has the great legal drama of an entertainment—the charge, the defender, the filing-in to the courtroom—but it ends as an inspiration.”David Lipsky, author of Absolutely American: Four Years at West Point

The Challenge is the definitive insider’s account of how a law professor and a military lawyer won a historic Supreme Court case against military commissions established by the Commander in Chief. Jonathan Mahler tells this improbable but important story in a gripping, accessible narrative that reveals both the promise and the limitations of judicial review in the age of terrorism.”—Jack Goldsmith, Henry L. Shattuck Professor of Law, Harvard Law School, and author of The Terror Presidency

“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 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 his authority. 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.”—Kirkus Reviews

“In this account of the momentous Supreme Court case Hamdan v. Rumsfeld, Mahler 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. Mahler skillfully humanizes the characters and institutions at the heart of the case and amply conveys the heroism of his protagonists.”—Publishers Weekly

Reviews from Goodreads

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JONATHAN MAHLER, a writer for The New York Times Magazine, is the author of Ladies and Gentlemen, the Bronx Is Burning.

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ABOUT THE AUTHOR

  • Jonathan Mahler

  • Jonathan Mahler, a writer for The New York Times Magazine, is the author of Ladies and Gentlemen, the Bronx Is Burning.
  • Jonathan Mahler Copyright Greg Martin

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