| Book Reviews |

Lincoln the Lawyer Lincoln was at root a collection law- Lincoln’s experience as an attorney By Brian Dirck yer. The West in the 19th century was served him well in his later political University of Press, Urbana, IL, 2007. the scene of both easy lending and fre- career, in that he made political con- 228 pages, $29.95. quent defaults, and Lincoln was in the nections on the circuit and, more im- center of this process. As Dirck states, portant, he learned the values of settle- “Lincoln practiced law in a veritable ment and reconciliation. The Papers of Abraham Lincoln: shower of [promissory notes]. They The four-volume selection of legal Legal Documents and Cases rained down on him, year in and year cases edited by Daniel Stowell was out, for his entire 25-year practice. ... meticulously prepared. There is a bio- Edited by Daniel W. Stowell Insofar as Lincoln specialized in any graphical note for every person men- University of Virginia Press, Charlottesville, VA, area of the law, he was a debt-collec- tioned in the records, including parties, 2007. 4 volumes, $300.00. tion attorney.” Most of these cases were judges, sheriffs, and jurors. There are straightforward—just a matter of turn- maps of the southern Illinois counties ing to the appropriate page in Chitty’s and photographs of litigants and court- Re v i e w e d b y He n r y S. Co h n Pleading. houses. Stowell weaves the documents Lincoln’s law practice also included in each case together and explains their In 2000, the University of Illinois probating estates and handling family importance. published a DVD containing nearly matters such as dower and child sup- Documents in the first volume show 96,000 documents gathered from the port, and he took on a few contro- Lincoln’s efforts to train interns and stu- surviving record of Abraham Lincoln’s versial criminal cases as well. He also dents who sought membership in the 25 years as a practicing attorney. Now, represented the Illinois Central Railroad Illinois bar. Among these documents two excellent works have drawn on the on various matters, including collecting is his famous letter to a farmer, listing DVD to capture the essence of Lincoln’s from investors who failed to pay their the law books that he considers essen- legal career. First, in Lincoln the Law- pledges on subscriptions and represent- tial for the beginning student (“Begin yer, Brian Dirck of Anderson University ing the railroad when persons claimed with Blackstone’s Commentaries, and in Indiana shows that Lincoln did not property damages resulting from rail- after reading it carefully through, say meet the Hollywood image of a law- road construction. twice ...”), and then concluding, “Work, yer as portrayed by Henry Fonda in the Dirck declares more than once that work, work, is the main thing.” The 1939 movie, “Young Mr. Lincoln,” or by Lincoln was a “pretty ordinary attor- second volume includes letters that re- Gregory Peck, who played Atticus Finch ney,” although he acknowledges that cord Lincoln’s trip through the Eighth in the 1962 movie, “To Kill a Mocking- Lincoln was adroit in his presentations Circuit in spring 1852, describing the bird.” The second work to draw on the in court. As an example of the latter, cases handled at the 14 courthouses in DVD is a four-volume selection of legal Dirck describes Lincoln’s representa- the circuit and the conditions (mostly cases and other documents edited by tion of a defendant who, upset by a rain and mud) at each location. Daniel Stowell (as well as several prede- news story, had attacked an editor with The more than 50 cases included in cessors) and published by the University his cane and was now being sued for the four volumes are remarkable in the of Virginia Press in association with the $10,000. Lincoln couldn’t deny the facts, way they present a cultural picture of Illinois Historic Preservation Agency. so, when the time came for him to ad- pre-Civil War America. The cases show In Lincoln the Lawyer, Brian Dirck dress the jury, “Lincoln slowly stood, the nation encouraging inventions, ex- portrays Lincoln in a more mundane picked up a copy of [the plaintiff’s] mo- panding capital markets, and making light than Hollywood generally portrays tion, and then suddenly burst out into internal improvements. One invention lawyers. Lincoln, after all, chose the law a ‘long loud laugh accompanied by that brought clients to Lincoln was the as a profession because he needed a se- his most wonderfully grotesque facial “atmospheric churn”—supposedly a cure job, after not having done well as expression.’” This sight caused several great improvement—that made butter a grocer, postman, and surveyor in New members of the jury to snicker, and in 15 minutes. Lincoln defended the Salem, Ill. Dirck shows that as an attor- Lincoln apologized. He explained that patent holder against salesmen who ney Lincoln was regarded as “peculiar” the plaintiff had written a demand for sought commissions on their sales of but was nevertheless popular. His office $1,000 but had crossed out the figure the device. Lincoln’s clients also includ- was filthy, he was careless in his dress, and replaced it with $10,000. Lincoln ed several railroad entrepreneurs who and—unlike his fellow lawyers—he en- joked that the plaintiff must have had needed his assistance to lobby the Illi- joyed traveling the often muddy open second thoughts and “concluded that nois legislature for additional routes, to road on the circuit. He was a “man’s the wounds to his honor were worth collect on subscriptions for stock, and man,” surviving on the poor food of tav- an additional nine thousand dollars.” to perform other legal tasks. erns, sharing his straw bed with other Dirck writes that Lincoln robbed the Lincoln also represented a poor soul attorneys, and making his reputation as case and the plaintiff of dignity, and the a storyteller. jury returned a verdict of only $300. reviews continued on page 54

November/December 2008 | The Federal Lawyer | 53 FedLawyer_thirdpage_10-08 9/30/08 4:22 PM

NEW BOOK FROM reviews continued from page 53 THE CATO INSTITUTE who tried to venture to California for the for his oral argument, including case gold rush, only to quit before he reached summaries and points to emphasize. the West Coast. Lincoln had to work out The notes show how he prepared for a The Cato a settlement with the failed prospec- difficult assignment and reveal that he “ tor’s backers, who demanded that the had the intellect to understand a com- Supreme would-be prospector repay the seed plex matter. money they had given him. Lincoln also In 1852, in Grubb v. John Frink & Court Review handled bankruptcy cases, taking ad- Co., Lincoln filed suit in an Illinois trial vantage of an 1841 federal bankruptcy court on behalf of a plaintiff who had is essential act, repealed by Congress in 1843, to file been injured when his hired coach several petitions in bankruptcy for his overturned. Lincoln gathered evidence reading. clients. The inventory listed in a bank- of the coach driver’s negligence, and ruptcy case included in the first volume the record includes notes of Lincoln’s – NAT HENTOFF describes home furnishings that would depositions of the plaintiff’s physician Syndicated Columnist, Village ”Voice interest historians of that era. and of a friend of the plaintiff’s who The documents in these volumes, cared for him after he was injured. The which are reproduced with few dele- case was settled just as the trial com- tions, allow details of Lincoln’s life to menced, based on Lincoln’s pre-trial emerge. In one letter related to a pend- preparation. ing case, Lincoln comments to the ad- In 1853, in People v. Loe, Lincoln dressee, a fellow attorney, on the status represented a young man charged with of a current Whig political campaign. murder for allegedly knifing another In another letter, he apologizes to co- youngster to death during a brawl. Lin- counsel for failing to reply sooner on a coln’s friend, David Davis, was the trial matter, because he had just gotten mar- judge, and he wrote to his father-in-law ried. Indeed, the state of marriage is that the case looked hopeless for Lin- one of “profound wonder” to Lincoln. coln, but Lincoln was able to convince In a chapter involving a claim that a the jury to convict Loe only of man- testator had been unduly influenced, slaughter. Loe was sentenced to eight the editor notes that Lincoln, like many years but was released after four years, people at the time, never wrote a will; when Lincoln and people in Loe’s town this caused Mary Lincoln much grief in asked the governor to reduce his sen- settling Lincoln’s affairs after his assas- tence. (Pardons were routinely given so sination. One case shows the economic that the town would not have to sup- side of Lincoln’s legal practice: he sued port the inmate or the inmate’s family.) the Illinois Central Railroad for services Loe returned to his community, mar- rendered and received his largest fee ried a woman who was 16 years old, Published every September, the Cato —$5,000. The fee became a matter of and fathered two children. He died in Supreme Court Review brings together lead- contention in Lincoln’s 1858 debate 1864 from wounds that he received on ing legal scholars to analyze key cases from with Stephen Douglas when Lincoln the battlefield as a Union soldier. the Court’s most recent term, plus cases In 1855, in Dungey v. Spencer, Lin- coming up. Now in its seventh edition, the claimed that he had not taken large coln brought a suit on behalf of a Review is the only scholarly journal to sums from railroad companies. dark-complected man from Portugal critique cases from a Madisonian perspec- Of course, most of the cases in tive, grounded in the nation’s first princi- these volumes support Dirck’s observa- whose brother-in-law, out of spite, had ples, liberty and limited government. This tion as to the nature of Lincoln’s law spread rumors that the Portuguese man year’s Review analyzes the Court’s recent practice—the cases involve collections, was black. Lincoln told the jury that it decisions involving the Second Amendment, probate, support, and minor criminal was “no crime to be born with a black the rights of detainees, offenses. The books, however, include skin,” but, in 1855, it was a crime for the applicability of international law in state several more important cases. Lincoln a white woman to marry a black man, criminal proceedings, the regulation of argued one case before the U.S. Su- and therefore the defendant’s accusa- political parties, and the biggest cases in preme Court, Lewis v. Lewis, 48 U.S. tions amounted to slander. Lincoln decades in securities, patent, and energy law. 776 (1849), concerning the applicabil- won $600 in damages for his client, ity of one statute of limitations versus who, apparently for the sake of family $15.00 paperback • $12.00 E-Book another. Chief Justice Taney wrote an harmony, remitted $400 of the award, opinion against Lincoln that all but one and Lincoln reduced his fee to $50. The Buy your copy at bookstores, of the justices joined. Most remarkable case records include a charming—but call 800-767-1241 or visit Cato.org is a full reproduction of Lincoln’s notes not completely accurate—reminiscence

54 | The Federal Lawyer | November/December 2008 written in 1895 by one of the brother- A question about this incident lingers come Westernized. In January 1901, in-law’s attorneys. The attorney related among historians to this day: Was the the dowager empress issued an edict that Lincoln used quaint phrases—tell- almanac from the year of the death or calling upon the members of her coun- ing opposing counsel, “Now, by jing, I was it from the previous year? In other cil and other dignitaries at home and will beat you boys!”—and praised Lin- words, did Lincoln trick the witness abroad “to reflect carefully on our pres- coln for the dramatic effect he gave to into an admission that the scene had ent sad state of affairs, and to scrutinize the word “gabbling,” when, in his sum- not been clearly visible? Lincoln also Chinese and Western governmental mation to the jury, Lincoln described engaged in a tearful summation in the systems with regard to all gymnastic the defendant as going “from house to case, noting that the defendant, like regulations, national administration, of- house, gabbling, yes, gabbling” about Lincoln, had lived in New Salem and ficial affairs, matters related to people’s the plaintiff’s being black. A humorous recalling how the defendant’s mother livelihood, modern schools, systems of incident arose when Lincoln said that had helped out Lincoln when he was a examination, military organization, and his client was not black, but may be poor, friendless boy. financial administration.” She said that a Moor. Judge Davis looked at one of The two works under review, China must adopt what was best in the the defense attorneys named Moore, Dirck’s study and the set edited by foreign ways and retain what was best started to laugh, and said to Lincoln, Stowell, agree on one thing: When Lin- in the old Chinese ways. “You mean a Moor, not Moore.” coln was President, he spoke lovingly This edict marks the beginning of Two cases in the University of Vir- of his days of being a lawyer and rid- what is known to historians as the ginia volumes show Lincoln in the lat- ing the circuit. As Dirck relates, when “new policy decade,” which was the fi- er stages of his legal career. The first Lincoln’s son Robert told him that he nal stage in the long history of the Qing case—Hurd v. Rock Island Bridge Com- intended to enter Harvard Law School, dynasty. On her deathbed in 1908, the pany—was tried in the federal district Lincoln replied, “If you do, you should empress designated a nephew, a two- court in in 1856 and 1857. The learn more than I ever did, but you will year-old boy, Puyi, as the next emper- case concerned a claim for loss of prop- never have so good a time.” TFL or. He was also to be the last in the erty made by the owner of the barge Qing line—the end of a dynasty that “Effie Afton” against owners of a newly Henry S. Cohn is a judge of the Con- had begun with the Manchu conquest constructed railroad bridge across the necticut Superior Court. of China in the 17th century. The tim- Mississippi River. Lincoln, who repre- ing of Puyi’s ascension to the throne sented the bridge owners, argued that Trial of Modernity: Judicial Re- made little difference to the course of the bridge was not an impediment to form in Early Twentieth-Century events in law reform or otherwise, but navigation. The case ended in a hung China, 1901–1937 the abdication of a six-year-old boy in jury; Lincoln’s participation ended at the face of the Xinhua revolution of this point, although the claims contin- By Xiaoqun Xu 1911–1912 adds a dramatic poignancy ued to be litigated into the 1870s, and Stanford University Press, Palo Alto, CA, 2008. to the history of that time—a poignan- the case was fully reported in the Chi- 400 pages, $65.00. cy exploited by Bernardo Bertolucci in cago press as an important trial of the his 1987 film, “The Last Emperor.” day. A letter that Lincoln wrote in 1857 The newly established republic re- during the trial also illustrates his po- Re v i e w e d b y Ch r i s t o p h e r C. Fa i l l e lied on a decentralized military known litical activities: “You can scarcely be as the Beiyang (literally, “Northern more anxious than I, that the next elec- This book treats of the legal histo- Ocean”). This was a bottom-up system, tion in Iowa shall result in favor of the ry of China from the aftermath of the in which loyalties were personal rather Republicans. I lost nearly all the work- Boxer Rebellion until Japan’s invasion than institutional, and, therefore, it was ing part of last year, giving my time to of China’s central coastal region in 1937. somewhat akin to classic feudalism. the canvass; and I am altogether too In June 1900, the Boxers, who believed The conventional wisdom is that the poor to lose two years together.” that foreigners and their ways were ru- decentralized Beiyang military caused The second case from late in Lin- ining China, invaded Beijing and laid civil as well as military authority to slip coln’s legal career, People v. Arm- siege to the legation compound there. from the hands of the Republic of China strong (1857–1858), was the basis for As a result, an eight-nation alliance sent and into the hands of local warlords. In the movie, “Young Mr. Lincoln,” and a relief force of 54,000 troops; six of the Trial of Modernity, Xiaoqun Xu chal- several other films and stories. Lincoln eight nations were European (Russia, It- lenges this view in some respects, find- defended Armstrong, who had appar- aly, Austria-Hungary, Germany, France, ing that the central authority was more ently joined a fight in which a man and Great Britain), and the other two efficacious than many have thought. died from a head wound. Lincoln im- were the and Japan. Nonetheless, the new policy decade peached the state’s witness and won These troops had lifted the Boxers’ came to an end by the beginning of an acquittal for his client by using an siege by mid-August 1900. The eight- 1912, and the first period in the history almanac to demonstrate that, at the nation alliance thereafter demanded— of the Republic of China—the Beiyang time of the assault, the moon had not and the Qing dynasty (embodied at era—was under way. In judicial and yet risen and the witness could not this time by the Dowager Empress have had a clear view of the incident. Cixi) agreed—that China had to be- reviews continued on page 56

November/December 2008 | The Federal Lawyer | 55 reviews continued from page 55

legal matters, there was a great deal of the Westernized Asians of Japan posed son: that was the year Japan extended continuity between the two periods, with an ever-approaching danger to the very the war to the heart of coastal China, policy-making elites continuing to press existence of an independent China. In emphatically including Jiangsu. Even the program of Westernization of the ju- 1931, the Japanese army occupied Man- for the portions of China that never diciary that had been adopted in 1901. churia, which the new bosses renamed came under Japanese occupation, con- Prison reform was one part of the Manchukuo. They invited the deposed cerns over prison reform, the proper Westernization program. The Interna- emperor of China, Puyi, to move there provision of a right to counsel to crimi- tional Penitentiary Congress held its (after all, the territory was the ancestral nal defendants, and other moderniz- eighth congress in Washington, D.C., in home of the Qing dynasty) and to act as ing issues became rather insignificant 1910, while Puyi still reigned, and his the ceremonial head of state—an invi- given the hurricane of a nation’s and a court sent a distinguished delegation— tation that Puyi accepted. His formal in- world’s tumult. including the chief of the Beijing high stallation as emperor the following year Xu’s overall view is that the reform- procuracy (in Anglo-American terms, the gave the Japanese occupation a veneer ers who worked to improve China’s office of the chief criminal prosecutor). of legitimacy in a territory that was to bench and bar throughout the period This delegation visited European prisons serve as a staging ground for further from 1901 to 1937 did a very creditable on the way to the congress and Ameri- plans to dismember its neighbor. job, and they did so against severe fi- can prisons before returning home. Such developments enhanced the nancial constraints. He asks rhetorical- What they saw and heard made a feeling within China—at least among ly, “Why would county jail guards from powerful impression, and later that the nation’s elites—that Westernization, local society care about improving con- year, in recognition of Japan’s suc- also known as modernization, was an finement conditions for presumed bad cess at Westernizing itself, the Chinese imperative for national survival. A legal guys in jail while they did not see a rise government invited a Japanese scholar scholar writing that year in a Beijing in their own wages?” Indeed, where the to prepare a new draft penal code for publication put it thus: “Right now a local society consisted of an impover- China. The draft, says Xu, “emphasized violent Japan is peddling its propaganda ished peasantry, the guards couldn’t a humanitarian spirit of prison manage- that China is a ‘nonmodern’ state to the help but notice that the living standard ment, providing sanitation standards world in an attempt to deceive foreign of confined individuals was a step up and medical care for the sick in penal powers and accomplish its design … from their own and that of their fami- institutions.” The dynastic rulers didn’t what our country needs is the aid of lies. Nor were the guards going to see a enact this draft, but it did influence re- international public opinion; and what rise in their own wages commensurate forms later adopted by the republic. international public opinion will aid are with the improved life of their prison- Perhaps the United States could use ‘modern’ states.” ers, because none of the three govern- some Westernization. Xu has made a particularly careful ments of China that come within the The Beiyang period came to an study of the records in Jiangsu prov- ambit of this study had the money nec- end in the mid-1920s. Sun Yat-sen, ince, an area that serves as a micro- essary to pull that off. the leader of the Republic of China, cosm of the vast country for his pur- Against that background, Xu cites died in 1925, and, by April 1927, mat- poses. He notes that during the Nanjing with some vicarious pride the prog- ters seemed to be spiraling downward decade the Jiangsu High Court decided ress that reformers made, quoting, for quickly into chaos. The country had to appoint four permanent public de- example, a story that appeared in the three capital cities, as the internation- fenders. Until this time, at least in that North China Herald in 1928: “Less and ally recognized government remained province, judges had appointed public less is heard about ‘graft’ or squeeze in Beijing, the Communists and the left- defenders from members of the local in the local courts with the passing of wing faction of the Nationalist (Guomin- bar on a case-by-case basis, and the time. It cannot be gainsaid that in this dang or GMD) Party established a new defenders would often simply fail to direction there has been a marked im- capital in Wuhan, and the pro-capitalist show up on behalf of their impover- provement.” portion of the GMD Party established ished clients. Accordingly, the Jiangsu Trial of Modernity succeeds in what itself in Nanjing. Under the leadership High Court created a stipend for the seems to be its chief goal, which is of Chiang Kai-shek, however, the lead- four permanent public defenders, half simply to fill a significant gap in the ers based in Nanjing eliminated the of which came from the court’s own scholarship on early 20th-century his- competition located in Beijing, drove judicial revenues and half from the lo- tory available to the English-speaking the Communists in Wuhan into hiding, cal bar. The Nanjing Ministry of Justice portion of the world. TFL and established its own credentials as approved this measure but pointedly the government of China in the eyes of required that the name of the office be Christopher Faille, the managing edi- much of the rest of the world. changed; the attorneys involved were tor of Hedge Fund Law Report, www. Xu refers to the period 1927–1937 thereafter called “designated defend- hflawreport.com, has written on a vari- as the “Nanjing decade,” the third and ers” rather than “public defenders.” ety of legal and historical issues. He is final of the chronological divisions un- Trial of Modernity’s coverage comes the author of The Decline and Fall of the der discussion. Throughout this period, to an end in 1937 for an obvious rea- Supreme Court.

56 | The Federal Lawyer | November/December 2008 The Challenge: Hamdan v. in and overthrowing the very pregnant wife and young daugh- Rumsfeld and the Fight Over South Yemeni Marxist government. ter to Pakistan, where he dropped them Presidential Power In 1996, Nasser al-Bahri led Hamdan off and returned to bin Laden. and 35 others to Jalalabad, Afghanistan, Um Fatima and her daughter made By Jonathan Mahler where they intended to join Islamists their way through Pakistan in the back Farrar, Straus and Giroux, New York, NY, 2008. who were fighting the Russian-backed of a pickup truck that was transporting 352 pages, $26.00. government in Tajikistan. They were families of Al Qaeda members. When denied access to Tajikistan, however, they finally reached Karachi, Um Fa- and went to see , tima became so hysterical that strang- Re v i e w e d b y Ca r o l A. Si g m o n d who preached to the recruits for three ers provided her with funds to pay for days, inspiring some of them—includ- tickets for her and her daughter to re- The Challenge is both informing ing Hamdan—to join him. For the next turn to Sana. Once in Sana, the Yemeni and frustrating. It is informing in its in- few years, Hamdan worked as a driver police questioned Um Fatima about teresting insights into , and bodyguard for bin Laden. His sta- Hamdan, and she told them that he his mistreatment in captivity, and the tus with bin Laden was enhanced over was dead, which is what she believed weakness of the government’s case time, especially after he subdued a truc- until she received word through the against him in his trial before a military ulent Sudanese. Hamdan was known International Red Cross that Hamdan commission. It is frustrating because as the “Hawk” in Al Qaeda circles. was alive. too much of the book deals with the In Sana, speaking to , Shortly after he had dropped off personal stories of Lt. Cmdr. Charles al-Bahri described Hamdan as apoliti- his wife and daughter in the Pakistani Swift and Law cal, ill-informed about Islam, naïve, and mountains, Hamdan was captured by Professor . cheerful—ineffectual as a jihadi, but Northern Alliance forces. They tied him Salim Hamdan was born about 1970, a likable young man. Hamdan came up with electric wire after they found in West Hadramawt, a village in south- from the same part of as bin two surface-to-air missiles in the trunk western South Yemen. His parents Laden’s father, which may help explain of his car. For a month or so, Hamdan were farmers and shopkeepers. By age why bin Laden accepted al-Bahri’s sug- claimed that he was a Muslim charity 11, Hamdan was an orphan, and, when gestion to hire Hamdan as his driver. worker, but then he was identified as he finished school, he was sent to live In 1999, bin Laden provided Ham- bin Laden’s driver and turned over to with relatives in Mukalla on the south- dan and al-Bahri with funds to marry the Americans. Hamdan was held at ern coast of South Yemen. Later, Ham- a pair of Yemeni sisters, who were Bagram Air Base for six months, then dan lived on his own in Mukalla, work- moved to the Tarnak Farms compound transferred to Camp Delta at Guantan- ing at odd jobs. In 1990, the previously to set up housekeeping. Hamdan’s amo Bay, , where he was one of Marxist South Yemen and the Islamist wife, Um Fatima, was shocked at the the first prisoners. North Yemen were united and became primitive living conditions at the com- The United States public is not well- the Republic of Yemen. Hamdan, like pound, particularly after she gave birth informed about the treatment of pris- many others in the former South Ye- to their first child. She and Hamdan oners held at Guantanamo Bay. Mahler men, migrated north to Sana, the new lived in a mud hut with a mud floor, paints a disturbing picture in a matter- capital of the Republic of Yemen, in but she saw little of him, as Hamdan of-fact way. Hamdan was periodically the hope of finding a better life. drove bin Laden around Afghanistan held in for months However, Hamdan’s economic cir- and repaired Al Qaeda vehicles. at a time, only because the prison au- cumstances did not improve in Sana, In summer 2000, Hamdan and al- thorities did not want him to tell other which was not the boom town that Bahri and their families traveled to detainees that he had lawyers or that Hamdan had anticipated, and his lim- Sana for a wedding. The USS Cole was his lawyers were mounting a vigorous ited skills and education were a handi- attacked at about the same time, and defense on his behalf. Hamdan was cap. He lived in a crowded boarding al-Bahri was arrested by Yemeni police often depressed and occasionally sui- house and worked as a part-time da- in connection with the incident. The cidal. Mahler’s account of Hamdan’s bab driver. The center of his life in Yemeni police also visited Hamdan’s treatment at Guantanamo Bay makes Sana was the Martyr’s Mosque. in-laws, seeking him, but Hamdan and The Challenge an important book. In or about 1996, Hamdan’s life Um Fatima had gone on a pilgrimage Mahler also provides a service in changed. He was recruited to the jihad to Mecca, eventually making their way highlighting the work of both military by Nasser al-Bahri, an educated, up- back to bin Laden in Afghanistan. and civilian defense attorneys working per class Yemeni who had grown up Before the 9/11 attacks, bin Lad- on behalf of Guantanamo Bay detain- in Jidda, Saudi Arabia. Jihad (striving in en and his immediate entourage had ees. Mahler describes the skepticism the cause of Islam) had a certain nobil- moved to Khost, Afghanistan, with of military attorneys about the military ity in Yemen, not only because of Ye- Hamdan driving bin Laden. Following commissions that would try the prison- men’s jihad tradition dating back to the the 9/11 attacks, bin Laden ordered his ers at Guantanamo Bay. Military law- prophet Muhammad but also because entourage to evacuate their families yers, mindful of the need to adhere to of the roles that Yemeni jihadis had from Tarnak Farms. Hamdan picked up played in defeating the Soviet Union his family in Kandahar, and drove his reviews continued on page 58

November/December 2008 | The Federal Lawyer | 57 reviews continued from page 57

international protocols so as to protect working continuously, writing briefs American service members who might while on family vacations, and post- be captured, objected to the use of mili- poning a final visit to his ailing father. Book tary commissions. In response, the Bush Perkins Coie’s commitment was ev- administration gradually cut the military ery bit as deep as Katyal’s—the firm’s Reviewers lawyers out of the planning process. lawyers spent thousands of hours in a As I read The Challenge, I wondered valiant pro bono effort to obtain some if assigning Lt. Cmdr. Charles Swift to measure of due process for Hamdan. Needed the military commission defense team These lawyers’ focus on their client will was the military’s idea of an appropri- be familiar to the spouses, children, ate response to the Bush administra- siblings, and parents of trial lawyers. tion’s thoughtlessness in creating the Mahler also examines the prosecu- commissions and forcing the military to tion’s theory of the case. He provides a take on the prosecution of the terrorist full account of the interrogation of Ham- suspects in a manner that is contrary to dan by the FBI agents whose evidence the best interests of captured U.S. ser- was at the heart of the government’s vice members. Assigning Swift seems case and gives a fair portrayal of the an appropriate response, because Swift lead prosecutor, Cmdr. Scott M. Lang. is a combative defense attorney, who Charles Swift stayed with the case is generally not willing to plead out a until the end, but he left the military weak case. Even though Swift is not afterward, because he was passed over particularly competent in preparing mo- for promotion, perhaps—as Mahler tions and briefs, he is effective on his speculates—because he was such a feet and with his clients. Swift, recog- vigorous advocate for Hamdan. Mahl- nizing his own limitations (he suffers er does not discuss Hamdan’s military from attention deficit hyperactivity dis- commission trial or the verdict, but, order and the associated organizational apart from discussing Swift’s leav- problems), invited Professor Neal Katyal ing the service, he ends the book at to join Hamdan’s defense team. Katyal, the point when the trial was about to an intensely intellectual lawyer, agreed begin. The verdict surely gave some to join Swift and to allow Swift to be comfort to Swift, Katyal, and Perkins the media spokesperson for the defense Coie, with the military judges finding The Federal Lawyer is team and to control client contact. Katy- Hamdan guilty of aiding Al Qaeda by al got what he wanted from the partner- driving and guarding bin Laden but looking for more book ship: primacy on the motion practice. not guilty of the more serious charges. Hamdan’s defense team consisted Based on the information that Mahler reviewers. If you have of not only Swift and Katyal but also provides in the book, the verdict seems partners and associates of the Seattle- appropriate. Hamdan’s sentence of 66 a book — particularly based law firm of Perkins Coie, as well months, reduced by nearly 61 months one related to law or as students from both of time served, must have seemed like and Georgetown Law School. Katyal a victory to Hamdan’s defense team. American history — contacted Perkins Coie when the ini- Swift, Katyal, and Perkins Coie brought tial action and associated motions were some measure of due process and fun- that you would like to filed, because Katyal recognized that damental fairness to the military com- he needed help—specifically in the mission. TFL review, or would like Western District of Washington and the to see a list of books Ninth Circuit, where Hamdan’s legal Carol A. Sigmond is a partner with battle commenced. Mahler realistically Dunnington, Bartholow & Miller LLP, that TFL has on hand depicts the conflicts and tensions be- in New York City. She is chair of the tween Katyal and Swift and between New York County Lawyers Association’s for review, please Katyal and the Perkins Coie team in Construction Law Committee, a mem- preparing the various motions and ber of the Board of Directors of the New contact book review briefs in Hamdan’s epic battle with Sec- York County Lawyers Association, a retary of Defense Donald Rumsfeld and member of the New York State Bar As- editor Henry Cohen at later his successor, Robert Gates. sociation’s House of Delegates, and a According to Mahler, Katyal im- member of the American Arbitration [email protected]. mersed himself fully in Hamdan’s case, Association’s Construction Industry Ar- bitration Panel.

58 | The Federal Lawyer | November/December 2008