United States v. Habeas Corpus

Jonathan Mahler

     ... journalist and author of The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power.  In it, Mr. Mahler captures the drama that culminated in this crucial test of presidential power and the rule of law. He also wrote the highly regarded Ladies and Gentlemen, the Bronx is Burning, in which baseball brings 1977 New York City into sharp focus. He is a writer for The New York Times Magazine and lives in Brooklyn.

When is a “thriller” most terrifying? When it’s real. Jonathan Mahler gives us the ultimate legal drama -- two improbable lawyers directly challenging the President and Commander in Chief of the United States of America on behalf of a wildly implausible “Everyman”... and winning.

“The incredible odyssey of these two lawyers and this Guantanamo detainee, Salim Hamdan, gives people a handle on all these enormously complicated legal issues and why they’re so important. And it can’t all be reduced to soundbites,” Mr. Mahler says.

He follows human stories. First, there’s Charles Swift, a rebellious U.S. Navy officer and trial lawyer, and Neal Katyal, a Georgetown Constitutional law professor whose father arrived in the U.S. from India with eight dollars to his name.

“They brought (Hamdan v. Rumsfeld) against the commander in chief during a time of war, got a hearing at the Supreme Court, and won.”

They didn’t do it alone. Others also risked career suicide defying post-9/11 hysteria -- distinguished military men, a small handful of valiant lawyers working pro bono, and law students, all intent on defending the rights of Salim Hamdan, who’s a stand-in for humanity and America’s most fundamental values in this supercharged story.

“(Charles Swift) says to Hamdan, ‘I've been sent here by my government. They want you to plead guilty.’ And Hamdan says, ‘To what?’ And Swift says, ‘Well, we don't have any charges yet.” So even Salim Hamdan, who’s from Yemen, has a fourth grade education and less understanding of the American judicial system than my four year old son, sort of understood. ‘Wait a second. Plead guilty when I don’t even know what for?’”

The legal issues were many and complex, but one need look no further than the Administration’s suspension of habeas corpus to understand what was at stake.

Habeas corpus has been around since Magna Carta. That’s 1215. Habeas corpus is a Latin phrase that means ‘show me the body’. Basically, it compels the institution or individual who’s imprisoned someone to bring that person into court and say why (he or she) is being held. Charge them or release them. It's the only durable method to prevent indefinite, unjustified detention. When you think about the roots of this nation, the idea was to get away from that sort of monarchical government.”

Mr. Mahler chooses to be inspired by a reaffirmation of the strength of the nation’s Constitutional design, rather than terrified by his hair-raising tale -- America narrowly avoiding the tyranny implicit in Bush’s frontal attacks on Constitutional separation of powers, the Uniform Code of Military Justice, and the Geneva Convention.

“This country was designed in such a way that even when the Executive is overreaching to this unprecedented degree, violating his oath to uphold the Constitution, and Congress has basically run away with its tail between its legs, you have a couple of individuals who stand up and say, ‘This is wrong.’ And you have a Supreme Court that will say to the President during a time of war, ‘You know what? They’re right and you’re wrong.’

“But the courts are extraordinarily limited in what they can do. They can say, ‘It’s wrong, go back and fix it.’ But they can’t fix it themselves. Congress has to restore itself to the role that it was designed to play in our Constitutional government -- as a check against the Executive Branch.”

[This Program was recorded September 9, 2008, in Atlanta, Georgia, US.]

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Related Links:

The Challenge is published by Farrar, Straus and Giroux Ladies and Gentlemen, the Bronx Is Burning is published by Picador.


The Seattle-based law firm Perkins Coie provided, pro bono, substantial assistance in Hamdan v. Rumsfeld.


In Legacy of Ashes, Tim Weiner examines 50 years of intelligence failures by the CIA, some of which contributed to the circumstances surrounding Hamdan v. Rumsfeld. Anthony Lewis addresses free speech issues in Freedom for the Thought we Hate. In a series of books, former White House counsel John Dean has documented the Republican mindset which has led to the many abuses described by Mr. Mahler. Haynes Johnson shows the links and the continuity between McCarthyism and the abuses of the Bush administration in The Age of Anxiety: McCarthyism to Terrorism.  Attorney and historian Edward Larson argues that the notions of a "unitary presidency" can be traced back to the Federalists and seen in the bitter presidential election of 1800. In his recent books, Kevin Phillips has shown increasing concern about the consequences of government officials not being held to account.


... and, here' s a little background information on Paula Gordon and Bill Russell, the Program co-hosts.



We are infinitely grateful to Charles Swift and Neal Katyal for their defense of justice for all.


Once again, the vital role pro bono legal work -- done quietly by legions of unheralded attorneys across the nation in defense of every liberty imaginable -- is brought sharply to mind. Our freedoms might well have been exiled without the astonishing performances of attorneys including Tom Goldstein and Kevin Russell, and a whole cadre of lawyers at the Seattle law firm Perkins Coie, led by Harry Schneider, Joseph McMillan, Charles Sipos and including a host of their colleagues.


It is painful to report that for all that Constitutional government has be reaffirmed and individual liberties more likely to be preserved, as of September 21, 2008, the fate of Salim Hamdan is yet to be decided. The fact that he has been driven mad seems beyond question. We concur with what Mr. Mahler tells us the military judge who sentenced Mr. Hamdan said -- it is also our profound hope that one day Salim Hamdan will be able to return to his family in Yemen to live out his days in peace.


“Ambition must counteract ambition” is James Madison speaking to the ages and to us in “Federalist Paper #51”. Mr. Madison and his colleagues strongly embraced the Enlightenment as they championing popular sovereignty. In their era, they thought of human affairs in general, and “balance of power” in particular in the way Newton had taught them to view the world -- as if it were a giant clockwork. (For an indepth discussion, see “Liberty, Metaphor, and Mechanism: ‘checks and balances’ and the origins of modern constitutionalism” by David Wootton, Professor of Intellectual History at Queen Mary, University of London.)


Today we know better. There is nothing inevitable about restoring “balance” once it is destroyed in the wake of the kind of egregious violations of the Constitution so cynically pursued by George W. Bush, Richard Cheney, Donald Rumsfeld and the rest of the Bush Administration and the Republican Party.

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