An inspiring legal thriller set against the backdrop of the war on terror,The Challenge tells the inside story of a historic Supreme Court showdown. At its center are a Navy JAG and a young constitutional law professor who, in the aftermath of 9/11, find themselves defending their nation in the unlikeliest of ways: by suing the president of the United States on behalf of an accused terrorist in order to prevent the American government from breaking the law and violating the Constitution.

Jonathan Mahler traces the journey of their client, Salim Ahmed Hamdan, from the Yemeni mosque where he was first recruited for jihad in 1998, through his years working as a driver for Osama bin Laden, to his capture in Afghanistan in November 2001 and his subsequent transfer to Guantanamo Bay. It was there that Hamdan was designated by President Bush to be tried before a special military tribunal and assigned a military lawyer to represent him, a thirty-five-year-old graduate student of the Naval Academy, Lieutenant Commander Charles Swift.

No one expected Swift to mount much of a defense. Not only were the rules of the tribunals, America's first in more than fifty years, stacked against him, his superiors at the Pentagon were pressuring him to persuade Hamdan to plead guilty. But Swift didn't believe that the tribunals were either legal or fair, so he enlisted a young Georgetown law professor named Neal Katyal to help him sue the Bush administration over their legality. In the spring of 2006, Katyal, who had almost no trial experience, took the case to the Supreme Court and won. The landmark ruling has been called the Court's most important decision ever on presidential power and the rule of law.

Written with the cooperation of Swift and Katyal, The Challenge follows the braided stories of Swift's intense, precarious relationship with Hamdan and the unprecedented legal case itself. Combining rich character portraits and courtroom drama reminiscent of Jonathan Harr's A Civil Action with sophisticated yet accessible legal analysis, The Challenge is a riveting narrative that illuminates some of the most pressing constitutional questions of the post-9/11 era.

After the terrorist attacks of Sept. 11, 2001, Osama bin Laden's driver and aide, Salim Hamdan, was captured by Northern Alliance fighters in Afghanistan. They hog-tied him with electrical wire, placed a hood over his head and turned him over to American forces for a $5,000 bounty. Six months later, he was transferred to the newly built U.S. detention center at Guantanamo Bay, Cuba. There, he was given... Washington Post Book Review (read the entire Washington Post review) a 35-year-old military defense lawyer named Lt. Cmdr. Charles Swift, who candidly introduced himself by saying, "I work for the same people who are holding you here."

Few thought Swift would mount a real defense. His assignment was to get Hamdan to plead guilty — even though no charges had been brought — and he was told that if he didn't, his access to Hamdan would be cut off. But in 2004, with the help of Swift and a young law professor at Georgetown named Neal Katyal, Hamdan sued the secretary of defense and the president of the United States. Two years later, he won. In Hamdan versus Rumsfeld, the Supreme Court struck down the Bush administration's original plan for special military tribunals, saying they would violate the Geneva Conventions and the Uniform Code of Military Justice.

The route to that decision is detailed in Jonathan Mahler's "The Challenge," an insider's account written with the cooperation of Hamdan's lawyers. Subsequent events have somewhat eclipsed the book; if Hamdan thought his victory in the Supreme Court was the end of his tortuous journey, he was wrong. Shortly after his lawyers explained the court's 5-3 ruling to him, Guantanamo guards confiscated his copy of the opinion. The president persuaded Congress to approve new military commissions with somewhat different rules, and Hamdan was tried in the first such proceeding since World War II. Last month, he was convicted of material support of terrorism and sentenced to five-and-a-half years in prison; with credit for time already served, he could be eligible for release early next year. Then again, the Defense Department has said it may hold him indefinitely as an "enemy combatant."

Mahler, a writer for the New York Times Magazine, aims simply to tell the story of the original litigation. But "The Challenge" would have benefited from less detail about the personal lives of Swift and Katyal and, in fairness, a little more attention to the lawyers for the other side and their arguments.

While Mahler doesn't say what should be done with detainees in the war on terror, Benjamin Wittes does. Recognizing that the answers are "paralyzingly non-obvious," he contends in "Law and the Long War" that the question of how the U.S. government should snoop on, detain, interrogate and try suspected terrorists requires a whole new legal framework.

Wittes, a former editorial writer for The Washington Post and now a fellow at the Brookings Institution, proposes various policy changes. For future Hamdans, he says, some form of administrative detention might be in order, possibly overseen by new, civilian-run courts that have jurisdiction only over war crimes and unlawful enemy combatants. Electronic intercepts should be used aggressively, not only to surveil terrorists who have already been identified but also to acquire new suspects. Torture, on the other hand, should be outlawed; in exceptional cases when officials conclude that it's essential, the president should be required to authorize it personally and then stand up publicly and grant something like a pardon to government employees who would otherwise incur criminal liability. Wittes is concerned about preserving the system's integrity, and he pulls no punches: In his view, President Bush's willingness to permit waterboarding while insisting that the United States doesn't torture is the "kind of double-talk that denudes law of meaning and renders the presidency morally laughable."

Some analysts view the struggle against international terrorism as a law-enforcement problem, while others call it a war. Wittes contends that neither model fits very well. The big question for him is: Which branch of government should write the new rules for a hybrid approach? Neither the executive, he believes, nor the courts; Congress should take the lead because the nation needs a coherent, democratic legal regime to deal with terrorism, rather than the patchwork of judicial decisions that's now emerging. Wittes acknowledges that the legislative branch's performance on terrorism issues has been uneven since 9/11. Still, he contends, it remains best suited to forge consensus and ensure the system's legitimacy.

Is Wittes right? It's far from clear that the terrorist threat is as great as he seems to assume; the threat was underestimated before 9/11, and he and others may be overestimating it today. If the threat is indeed grave, it's not evident that greater consensus would be in the national interest; a certain degree of discord is healthy on these sorts of nerve-center issues. Nor is it clear that more comprehensive legislation would mean a lesser role for the courts. Congress will inevitably leave room for disagreement about what its words mean, and legislative approval is no guarantee of either fairness or farsightedness.

Those who like what the president and Congress have done since 9/11 probably will like many of Wittes' ideas. Those who like what the courts have done probably won't. All will profit, however, from his evenhanded and elegantly written analysis. The continuing challenge posed by Salim Hamdan (and many others like him) is to ensure protection against both terrorism and the government itself. That will require painful tradeoffs. Agree with Wittes or not, his effort to get the balance right is a must-read in the contemporary literature about reconciling security and freedom.

Michael J. Glennon is professor of international law at the Fletcher School of Law and Diplomacy, Tufts University. He is the author of "Constitutional Diplomacy."

Reviewed by Michael J. Glennon, Washington Post Book World (Copyright 2006 Washington Post Book World Service/Washington Post Writers Group)
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"[H]ighbrow narrative nonfiction." New York Times

"I was in the Pentagon on 9-11, and in its aftermath, I witnessed the most remarkable and chilling attempt to consolidate and abuse executive power, circumvent and ignore the rule of law, and reverse engineer due process and the rules of evidence to deny our newest enemies a fair trial. The Challenge is the riveting and very inside story of an unlikely coupling of two lawyers from two very different legal worlds, one military and one academic, who joined forces to restore our jurisprudential values. Jonathan Mahler captures the essence of their personalities and the truly heroic battles that they fought in a way that is both informative and fascinating. Do not get too comfortable though. This struggle — of epic constitutional proportions — continues, and every American who holds freedom dear must be educated about the dangers of executive power run amok. The Challenge is the book that will anchor that education." Donald Guter, retired Admiral and former Judge Advocate General, U.S. Navy; Dean, Duquense Law School

"This is the definitive work on an epic Supreme Court case — and on the human beings behind the headlines." Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court

"The Challenge is a rare achievement — a book as involving as it is important. The characters (real people, powerfully sketched) and the narrative (gripping as a movie) make Jonathan Mahler's book impossible to put down. And yet beneath the turning pages there’s a firm spine: a profound meditation on what patriotism means and how durable our Constitution is. The classic American story: upholding the rules, meeting the standard, at high personal cost. This book has the great legal drama of an entertainment — the charge, the defender, the filing in to the courtroom — but it ends as an inspiration." David Lipsky, author of Absolutely American: Four Years at West Point

"Out of a great Supreme Court case Jonathan Mahler has made a riveting story. Here are the Guantanamo prisoner who challenged the President, the lawyers, the judges. I could not stop reading." Anthony Lewis, author of Gideon's Trumpet

"The Challenge is the definitive insider's account of how a law professor and a military lawyer won a historic Supreme Court case against military commissions established by the Commander in Chief. Jonathan Mahler tells this improbable but important story in a gripping, accessible narrative that reveals both the promise and the limitations of judicial review in the age of terrorism." Jack Goldsmith, Henry L. Shattuck Professor of Law, Harvard law School, and author of The Terror Presidency

Jonathan Mahler, a writer for The New York Times Magazine, is the author of Ladies and Gentlemen, the Bronx Is Burning.