by Weston Cutter
If you’re not already jealous of Jonathan Mahler, you will be soon. Mahler, who writes for the New York Times Magazine, published earlier in the decade Ladies and Gentlemen, the Bronx is Burning, and if you’ve read the book you already know but if you haven’t, dig it: that book’s unbelievably good and interesting and fun and well written. I know, I know: it got made into a TV movie, but that’s neither here nor there. What Mahler did in one book was look at 1977, in New York City, through the lenses of city politics, Yankee baseball, and ‘race relations’ (he didn’t use that phrase, I don’t think, and I don’t like it either, but it’s basically accurate). If that sounds even remotely boring, that’s my fault: the book’s as riveting and fun and well-written as any I’ve read in the last five years.
And so what would you do if you were Mahler, if your first book was a great baseball book and you could choose your next topic? I feel like I’d’ve chosen another baseball book, taken a roughly Halberstam route. But if you’re Mahler, you write The Challenge, just released by FSG, a book which covers the story of Hamdan v. Rumsfeld, the legal case brought against our former Secretary of Defense by the former driver for Osama bin Laden.
Do we all remember this part? In November of 2001, as the Northern Alliance and the Coalition of the Willing was sweeping though Afghanistan, the US military began to pick up enemy combatants, and holding some in distant, undisclosed black sites, but holding many more in Guantanamo. And the designation ‘enemy combatant’ and the fact that the men were being held on non-US land constituting a one-two trickster’s combo of getting around the rules of the treatment of Prisoners of War and the Geneva Convention Protocols (specifically Article 3). And military tribunals were established by the present administration in which defendants would not be able to see classified evidence being used against them,, and in which hearsay evidence would be permitted, and in which the defendant may not even be allowed to be in the courtroom for the entirety of his trial.
So into this civil-right-fraying atmosphere comes Charles Swift, a Lt. Commander and JAG corps lawyer, and Neal Katyal, a Yale Law School professor. Swift had been assigned to defend Salim Hamdan, a Yemeni who’d been picked up on the Afghanistan border in November of 2001 in a borrowed car which just happened to have two rockets in the trunk; Katyal contacted Swift’s JAG team to see if they wanted his (Katyal’s) help, and the group eventually decided to file a challenge to the constitutionality of the military tribunals under which Hamdan was to be tried. What followed were four years and one of the most incredible legal stories I’ve read.
Are you jealous of Mahler now? You should be. Guy can write circles around most, and his two books cover baseball and law; I wouldn’t even be able to think up that cool a combo. Yet looking deeper, you can see The Challenge as a natural outgrowth of Ladies and Gentlemen. The 1977 New York Mahler wrote about in his first book was being fractured and split by financial crises and poverty and racism, and through a few key characters—mostly Reggie Jackson and Billy Martin—he painted a scene of not redemption but of a story being worked through, an age being passed. The early-2000’s American political and legal system Mahler’s just written about is being fractured and split by questions of loyalty, of honor and duty and safety and fear, and through a few key characters—Neal Katyal, son of Indian immigrants and somebody who’s got to be one of the coolest guys in the world, you’ll want to meet and hang out with him after reading the book; Charles Swift, a hard-charging and supremely dedicated JAG lawyer whose view of and dedication to American justice should be enough to make you work harder to make the world better—he paints a scene…you get it.
There is, of course, no redemption for this story, not for now: Katyal and Swift (and, in fairness, the people that work with them, most notably members of the law firm Perkins Coie) took Hamdan to the Supreme Court and won—President Bush and the men he set up the military tribunals with had gone beyond the bounds of legality and the constitution—but that didn’t mean Hamdan was released (it’s fucking nuts what that guy’s been through: see?); it meant President Bush pushed for legislation that would change certain details of the military tribunals, and it means congress passed that legislation. When Hamdan will be freed or found guilty is still up in the air.
What’s most incredible about The Challenge—and that’s not something to say lightly, since there’s something incredible on at least every other page—is not that it’s some trash-talking liberal book about the atrocities of the current administration, nor that it’s some rah-rah account of the maverick legal system that helped keep ‘enemy combatants’ off battlefields, but that the real matter, the real issue, is a deeper, quieter question: who are we? Who will we be now, as United States citizens? Will we (almost literally) lock up shadows who we feel are haunting us? Or will we bring forward all those with whom we have differences, allow them some dignity and a measure of justice, allow them and us to see each other in real light?
This is a question that’s still being decided, of course, and not just because it’s a presidential election year. This stuff will likely be my generation’s burden. Walter Dellinger, former acting US Solicitor General, blurbs that “Hamdan is simply the most important decision on presidential power and the rule of law ever. Ever.” It may be the most important decision, that I don’t know: what we all know is that it’s not enough, not yet, to get this country back to where we need to go. It’s a rare thing when a book can make you think of and confront issues this big: if your hat’s not already doffed to Mahler, take it off now. Cross your fingers that he writes another one of his fantastic books quickly. And if you get the urge, write to Neal Katyal and Charles Swift and thank them both for their work for the country.