September 23, 2014
Jonathan Shapiro on the Hamdan Case
Posted on Aug 29, 2008
The toughest task of Katyal, a former Supreme Court clerk, then 33 years old, was to convince a federal judge to hear Hamdan’s petition to begin with. For any trial court judge hoping for advancement, taking such a petition was professionally risky. The president is responsible for elevating federal judges. The president’s military order creating the tribunals forbade anyone to challenge them. To hear Hamdan’s petition would be to violate the president’s clear intent.
For a year, no judge would do it. Eventually several courageous lower-court judges did take action that eventually led to Hamdan’s case going forward. Foremost among these was Judge James Robertson of the District of Columbia federal court, a former Navy officer himself, who had the temerity to find that any trial conducted without basic procedural safeguards was no trial at all.
Mahler mines the materials available to him to make the rocky climb to the Supreme Court compelling, a neat trick. Trials are theater, inherently dramatic plays with the neat denouement of a verdict in the end. Appeals, in contrast, are tedious, boring affairs in which the issues are limited to the written record, surprise is prohibited, action unheard of, and talking strictly limited. It is designed for scholars, not showmen, and there are rarely clear-cut winners and losers.
Mahler does an admirable job of explaining for the nonlawyer the arcane rules of appellate practice. And he wisely provides just enough flavor of the Talmudic analysis that goes into appellate decisions to make the court’s ultimate decision understandable. If Mahler sometimes gets lost in the minutia of appellate strategy, the 15 moot courts that Kaytal participated in prior to his argument before the court, the challenge of brief page length and font requirements, it is understandable; lesser writers would not have done so well. For the most part, he manages to get out of the thicket with the narrative intact and the suspense building.
By the time Kaytal stands in the bathroom stall of the Supreme Court, singing the theme from “Mister Rogers’ Neighborhood” to warm up his voice and settle his nerves, the story has wings; knowing the outcome does not make it any less exciting or satisfying. Kaytal’s argument before the court was a resounding success. By a 5-3 vote, the court eventually held that President Bush had violated the Geneva Conventions and the Constitution by creating tribunals that denied defendants basic rights.
The Hamdan decision quoted the court’s own ruling in Ex Parte Milligan, over a hundred years earlier, when it found Civil War-era military tribunals unconstitutional: “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protections all classes of men, at all times, and under all circumstances.” Amen.
Mahler writes with a refreshingly unbiased tone, refusing to take sides, generously concluding that Hamdan was less a rebuff of the Bush administration than “an affirmation of the majesty of America’s constitutional government and the critical role of the courts within.”
Perhaps so, but it was also an extraordinary rebuke of a wartime president. It took the Supreme Court decades to reverse itself on the matter of World War II-era internment camps, yet only a matter of months to strike down Bush’s tribunals. The irony of the commander in chief fighting not one but two wars in the name of American liberty while at the same time curtailing those liberties was characteristically lost on Bush, who immediately sought legislation that would overturn the court’s decision. It was an especially graceless act for a man who owes his very presidency to a Supreme Court decision. But Bush seems incapable of appreciating the manifold ironies that define his reign.
What Mahler could not have known when writing the book is that Bush had inadvertently laid the groundwork for an unexpected twist to the story. Thanks to the president’s efforts, new tribunals were set up and Hamdan eventually went to trial. The military jury acquitted him of the most serious charges, rejected the 30-year term sought by the prosecution, and gave Hamdan a five-year sentence, with credit for time served. He remains in custody, subject to continued incarceration even after the completion of his sentence in a mere six months. Whether he’ll be released and returned to Yemen is not the question; rather it is when.
Mahler never met or talked to Hamdan; such are the restrictions that still apply. One is reminded of Ernesto Miranda, another bad man destined to become synonymous with grand legal principles. The name of Miranda, a rapist and robber, is shorthand for the custodial rights of the accused. The name Hamdan will forever be associated with the limits of presidential power, even in a time of war. Like Miranda, Hamdan is thus a winner in name only. The real beneficiaries are the citizens of the country Hamdan waged war against. The ironies of the Hamdan case abound.
Jonathan Shapiro, a former federal prosecutor, teaches criminal law as an adjunct law professor at the USC School of Law, and writes and produces the NBC television drama “Life.”
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