Near-exhaustive account of what some Supreme Court watchers consider “the most important decision on presidential power ever.”
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 (Ladies and Gentlemen, the Bronx Is Burning, 2005) notes. The Marshall Islands and other Pacific outposts lacked sufficient infrastructure. But Guantánamo 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.