Hamdan’s Trumpet
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

For years I’ve had a theory about the portraits that hang in our courthouses — namely that in addition to the great judges and lawyers who are framed on canvas it would be fitting to include paintings of famed plaintiffs: Oliver Brown, who won his daughter the right to attend a school in Kansas that had been reserved for whites; Ernesto Miranda, who established the right to remain silent, and Clarence Earl Gideon, whose pauper’s petition, filed from prison, won for all accused of a crime in America the right to a lawyer. One was a hero, one a villain, and one in between. But each staked his all on our Constitution and changed our firmament.
Now this gallery has been joined by Osama bin Laden’s chauffeur, Salim Hamdan, who, in one of the most spectacular Supreme Court cases in American history, Hamdan v. Rumsfeld, challenged the authority of military commissions established by the president to try him and men like him without recognizing the right of Congress to establish ground rules for such a prosecution, and without observing the Geneva Conventions. Mr. Hamdan’s story is being brought out this week by one of our nation’s most gifted journalists, Jonathan Mahler, in a book called “The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power” (Farrar, Straus and Giroux, 334 pages, $26).
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 book opens in the Old City of Sana in Yemen, where Mr. Hamdan was first recruited for the jihad; he then traveled to Afghanistan, where he and his cronies eventually made their way to Mr. bin Laden, who had moved his base there after being expelled from the Sudan. Mr. Hamdan, Mr. Mahler relates, had a Taliban-issued permit to carry a Russian pistol and worked both as a driver and a bodyguard to Mr. bin Laden, who, according to a jihadi interviewed in Yemen by Mr. Mahler in a feat of reportorial derring-do, talked to them specifically about the imperative to attack America.
Mr. Hamdan and his family returned to Yemen only weeks before the attack on the USS Cole, and left Yemen again shortly thereafter, making their back way to Afghanistan and Mr. bin Laden — with the law, such as it was, hot on the trail. In the weeks before September 11, 2001, Mr. Hamdan was part of a small bin Laden entourage, and a member of what Mr. Mahler calls a “small motorcade of al Qaeda leaders, including bin Laden and his top lieutenant, Ayman al-Zawahiri, who drove into the mountains above Khost in order to watch the planes crash into the World Trade Center and the Pentagon on satellite TV.”
It turns out that they had to settle for the radio. “After each strike, bin Laden held up another finger for his joyful, incredulous followers, promising yet another one.” But within weeks, American-backed Northern Alliance forces swept across Afghanistan, and Mr. Hamdan was on the run again. He split from his family and, hours later, was captured by the Northern Alliance, which found two surface-to-air missiles in the trunk of his car. Hog-tied with electrical wire, he was turned over to the Americans in exchange for a $5,000 bounty.
Mr. Hamdan insisted he was in Afghanistan working for a Muslim charity, but was identified by another detainee as Mr. bin Laden’s driver, and finally acknowledged working for Mr. bin Laden and attending Al Qaeda training camps. Mr. Mahler relates that he was held for the next six months at Bagram Air Base and an American prison camp in Kandahar. It was in early May 2002 that he was transferred to Guantanamo and, in December 2003, into pre-trial solitary confinement. “Of the thousands of detainees in U.S. custody,” Mr. Mahler writes, “President Bush had chosen him to be the first Arab defendant in America’s first war crimes trials in more than fifty years.”
The heroes in Mr. Mahler’s account of the proceedings that followed are Mr. Hamdan’s lawyers. One is a lieutenant commander in the Navy, Charles Swift. Commander Swift’s career in the judge advocate general’s corps had begun with a case in which he defended a sailor who was facing the possibility of 25 years in prison on charges of sexually abusing his stepdaughters; the JAG officer discovered and managed to get into evidence the fact that one of the accusers had previously made a false allegation of rape, and won the case, the first of many improbable victories.
Another is a young professor of constitutional law at Georgetown, Neal Katyal, who had written a law review article on military commissions with famed Harvard constitutional law professor, Laurence Tribe. It was Commander Swift who was appointed as Mr. Hamdan’s military lawyer, and it was Mr. Katyal who devised the strategy for getting the Supreme Court to grant certiorari and who ultimately argued and won the case before the court. The significance for Mr. Hamdan of the decision, which led Congress to grant the president the authority to establish new military commissions and led to a trial for Mr. Hamdan before one such commission, was what Mr. Mahler feels was a fairer proceeding, in which Mr. Hamdan was able to see at least summaries of the evidence against him, and to confront publicly his accuser.
As a journalistic coup, Mr. Mahler’s telling of this story reminds me of one of my favorite pieces of journalism, Anthony Lewis’s “Gideon’s Trumpet,” which took the reader inside a great constitutional showdown launched by that drifter. Mr. Mahler’s narration is neither an anti-war tome, accusatory opus, nor political polemic. Rather it is a reaffirmation — a celebration even — of America’s constitutional government, in which a doughty naval officer and immigrant constitutional enthusiast could, in the midst of a war, sue the commander in chief on behalf of a low-ranking enemy detained in a cell at the edge of America’s jurisdiction, and best the entire federal legal apparatus. Even for those who don’t agree with the decision in Hamdan, the book will be a reminder of justice’s grandeur in our country — and something to think about as we walk the halls of justice and stop to regard the portraits on the wall.