Just a few months ago, in April of this year, the Guantánamo Bay detainee Salim Hamdan appeared before the Navy captain acting as his military judge, and announced that he would boycott the war-crimes trial the Bush administration had planned for him. “There is no such thing as justice here,” Hamdan said of the special tribunal constituted to try him. The judge exhorted him to have faith in American law. “You have already been to the Supreme Court,” he reminded the embittered detainee. Hamdan didn’t go for it. He told the judge that while his lawyers had gone to the highest court in the land to argue on his behalf, he’d been left behind—at Guantánamo.
Hamdan’s present makes for a bleak backdrop to his recent past, and to the Supreme Court victory achieved in his name, whose history Jonathan Mahler recounts in his new book. Few of the court’s decisions have been so legally meaningful and yet so personally meaningless.
The judicial battle began in 2004, when the Bush administration lost in its effort to indefinitely detain Yaser Esam Hamdi, an American citizen also held at Guantánamo. Rather than try him in the federal courts, the government sent Hamdi back to Saudi Arabia, where he had grown up and also held dual citizenship. But the administration presumably decided it could not afford to take the same approach with Hamdan, who has admitted to being Osama bin Laden’s driver, and who (like hundreds of other Guantánamo detainees) is not an American citizen. Instead, the administration doubled down.
As Mahler explains, however, the White House soon encountered a major obstacle: the Supreme Court. When Hamdan’s lawyers first submitted their appeal, it had been met with silence. According to the author, the press may have helped influence the justices to...
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