By Jonathan Shapiro
George W. Bush is the most lawless president in U.S. history.
Not corrupt, mind you; plenty of presidents were guilty of avarice, abuse of power, adultery, perjury; President Bush is merely the first to usurp the law as a matter of policy.
This is not a criticism. It is a fact; to quote Casey Stengel, you can look it up. The truth is in the records of the nation’s highest court and the considered opinion of the majority of its justices. In fighting terrorism, Bush didn’t just break the law; he became a law unto himself. Then with imperial disdain—more likely, impervious disregard—he declared that his actions were beyond traditional checks and balances, and fully outside the reach of courts or Congress.
The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power
By Jonathan Mahler
Farrar, Straus and Giroux, 352 pages
Jonathan Mahler’s “The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power” is an essential history of the case that ended this presidential coup, and a worthy reminder that our most basic rights are vulnerable in time of war. Hamdan is also the compelling story of military personnel, lawyers and judges who put their careers at risk on behalf of a man who, if given the chance, would have murdered them. This handful of principled Americans won what former Solicitor General Walter Dellinger rightly called “the most important decision on presidential power ever.”
Days after the 9/11 attacks, Bush decided to try terrorism suspects as war criminals before military tribunals rather than in U.S. courts. The White House asked Pierre-Richard Prosper, head of the State Department’s war crimes office, to convene an interagency task force to study whether such tribunals would be legal. Prosper had prosecuted war criminals in Rwanda, was a colleague of mine at the U.S. Attorney’s Office in Los Angeles, and is an experienced, principled professional. Having asked him to consider the question, Bush promptly ignored him.
“The White House ... grew impatient with Prosper’s consensus-seeking and time-consuming brain trust,” Mahler writes. Before Prosper could finish his report on whether the tribunals were legal, the president forged ahead. By executive fiat (the technical term is military order), Bush declared that all noncitizens who the president “had reason to believe” were affiliated with al-Qaida, or aided and abetted acts of terrorism against the U.S., were to be tried in special courts. Hearsay evidence and unsupported exhibits would be admissible; trials would not be public; the president alone would decide whom to charge; all decisions were final; there would be no appeals. Like Secretary of State Colin Powell and National Security Adviser Condoleezza Rice, Prosper didn’t know the order was being considered until after the president issued it.
It is clear now—it was clear then—that the tribunals were designed to give the appearance rather than the protections of due process. The alternative—fair trials—was unacceptable to an administration that viewed opposition to the tribunals as treason and critics as traitors.
“Your tactics only aid the terrorists, for they erode our national unity and diminish our resolve,” Attorney General John Ashcroft said. “When we come to those responsible for [terrorism], say, who are in Afghanistan, are we supposed to read them the Miranda rights, hire a flamboyant defense lawyer, bring them to the United States to create a new cable network of Osama TV…?”
In 2001, Salim Ahmed Hamdan of Yemen was arrested in Afghanistan. The car he was driving had two surface-to-air missiles in the trunk. Though Hamdan never shot, let alone killed, anyone, nor was he tied to any specific terrorist act, he admitted to being Osama bin Laden’s driver and bodyguard. This made him an excellent candidate for special treatment. “Of the thousands of detainees in U.S. custody, President Bush had chosen [Hamdan] to be the first Arab defendant in America’s first war crimes trials in more than fifty years,” Mahler writes.
It was presumed that Hamdan would go along with the program and plead guilty. Indeed, Hamdan might have done so. Having long been imprisoned, often in isolation, he had all but given up hope on having his day in court.
Enter Lt. Cmdr. Charles Swift, a Naval Academy graduate with a reputation as “one of the most zealous defense attorneys in the JAG Corps.” If Tom Cruise in “A Few Good Men” comes to mind, it clearly occurred to the egocentric, self-promoting Swift as well.
Mahler is too honest a reporter to cast Swift in purely heroic terms. Mentally scattered, overly emotional, self-dramatizing, self-absorbed; a man who saw himself in such romantic terms that he could reduce himself to tears through his own eloquence, Swift “talked too much and never seemed to say enough.” By turns he was insecure and confident, combustible and deferential, aggressive and paranoid. His one constant was patriotism; specifically, the “loyal opposition” brand that goes against popular opinion or even the president in order to defend American principles and ideals.
If, as a colleague says, Swift has always been a “pain-in-the-ass,” so have most patriots. Sam Adams was a bully, Thomas Paine notoriously difficult, Clarence Darrow seldom washed. Fighting for civil liberties is noble in theory but hard in practice, and rarely pretty. Swift’s motivations to fight for Hamdan were not all pure; he wanted to be famous, was profiled on “Sixty Minutes” and in Esquire magazine and accepted awards and accolades from a number of organizations long before the case was over. But to his credit, Swift was the first and, for a time, the only one with the guts to take on his commander in chief. Had Congress shown such grit, the country, indeed, the world, would have been better off.
While Swift was a good man to start a fight, he was the wrong man to finish it. Hamdan’s best defense at trial was never to go to trial; it was to attack the legality of the tribunals themselves. For that, Swift’s brawn needed help from the brain of Georgetown law professor Neal Katyal.
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.”