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Salim Hamdan's Tribunal and the Strength of the Constitution

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Salim Hamdan's military tribunal, which came to a close with his unexpectedly light sentencing this week, may never draw comparisons to Nurememberg -- that great, if flawed, monument to the rule of law -- but in my mind it will always stand as something just as important: A symbol of the strength of America's values and the durability of our Constitution.

To defend this admittedly grandiose claim, I should probably start at the beginning.

Four-and-a-half years ago I went down to Washington to profile Hamdan's newly assigned defense lawyer, a JAG lawyer named Lieutenant Commander Charles Swift. A gift from the magazine gods, Swift was a blue-eyed, barrel-chested Navy officer who spoke not in sentences but in stories. Between mouthfuls of fried prawns at a Chinese restaurant at a strip mall in northern Virginia, he told me that he was dead serious about providing a vigorous defense for Hamdan.

I was, I'm embarrassed to say in hindsight, a little surprised. Like the government, which had expected Swift to persuade his client to plead guilty to whatever charges were ultimately brought against him, it had never occurred to me that a member of our own military -- whose headquarters had, after all, been one of the targets of the 9/11 attacks -- would be inclined to put up much of a fight on behalf of an accused terrorist.

But I was wrong. Swift was so serious, in fact, about defending Hamdan that he recruited a young constitutional law professor, Neal Katyal, to help file a lawsuit on Hamdan's behalf, arguing that the military tribunal in which he was to be tried was illegal. And I started working on a book about their case.

Since then, that these two men -- one a Naval Academy screw-up and the other a child of Indian immigrants -- held the rights of an accused terrorist as dearly as they held their own has often made me question my own complacent notion of patriotism. Swift lost both his career and his marriage thanks to the case. Katyal risked a rising legal career, in addition to going tens of thousands of dollars into personal debt. What other country would inspire such sacrifice, and would allow such a public challenge to its president?

After years of being knocked around by the courts, these two lawyers, eventually joined by a passel of law students and Perkins Coie, a Seattle firm that would devote thousands of pro-bono hours to the case, miraculously convinced the Supreme Court to hear Hamdan v. Rumsfeld, their suit claiming that the military commissions were illegal and unconstitutional.

On June 29, 2006, the justices handed down their verdict. Katyal and Swift had won, and the justices' sweeping decision in Hamdan was instantly recognized as one of the Court's most important rulings on presidential power ever. Among other things, it compelled Congress to write fixed rules for all the tribunals guaranteeing defendants more due process rights (for instance, they could no longer be kicked out of the courtroom during their own trial).

This week's verdict and sentencing in Hamdan's legal trial are a reminder of that victory. For Swift, in particular, who stayed on as Hamdan's counsel even after he had been forced out of the military in part for defending him, I couldn't help but feel the corny swell of an orchestra when I read about the sentence. From my years of reporting on Swift, I knew how despairing his relationship with Hamdan had often been. As Hamdan's only contact with the world, Swift has literally kept him alive for years, talking him out of numerous hunger strikes, despite being fired repeatedly and blamed for everything from the food on Guantanamo to the conditions in which he was kept.

Through it all, he was still advocating for Hamdan's constitutional rights. And there he was on Guantanamo on Thursday when his client's tribunal finally came to a close, celebrating his lighter than expected sentence and denouncing the trials. He was now in civilian clothes. In almost any other country, he would have been in a prison jumpsuit.

Jonathan Mahler is the author of a new book about the Hamdan case -- The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power -- and a contributing writer to the New York Times Magazine.