By William Fisher
This has to be the non-surprise of the week: Lt. Cmdr. Charles Swift, the Navy lawyer who led the recent successful Supreme Court challenge of the Bush administration's military tribunals for Guantanamo detainees, has been passed over for promotion to full Commander and will have to leave the military.
The military claims there is no connection between its decision and Swift’s defense of Salim Ahmed Hamdan, a Yemeni and alleged al-Qaida member who was accused of being Osama bin Laden's driver. Yet the Navy lost no time in exacting retribution. Its decision on Swift came about two weeks after the Supreme Court sided with him and against the White House.
And it was made despite a report from his supervisor saying he served with distinction. "Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, the Pentagon's chief defense counsel for Military Commissions. Sullivan added it was "quite a coincidence" that Swift was passed over for a promotion "within two weeks of the Supreme Court opinion."
A coincidence indeed!
The 44-year-old lawyer will be forced to retire from the armed services in March or April under the military's "up or out" promotion system. Swift said he would have defended Hamdan even if he had known it would cut short his Navy career. He added that he plans to continue defending Hamdan as a civilian.
The 36-year-old Hamdan was captured along the border between Pakistan and Afghanistan while fleeing the U.S. invasion that was a response to the Sept. 11, 2001 terrorist attacks. Hamdan has acknowledged that bin Laden paid him $200 a month as his driver on a Kandahar farm, but he says he never joined al-Qaida or engaged in military fighting.
With Swift’s help, Hamdan turned to civilian courts to challenge the constitutionality of his war-crimes trial, a case that eventually led the Supreme Court to rule that President Bush had outstripped his authority when he created ad hoc military tribunals for Guantanamo Bay prisoners.
The Pentagon sought to redesign the format of the trials, but substituted a system similar to the one The Supreme Court struck down. Thus, a new court challenge is likely.
Legislation passed by Congress last month has meanwhile taken away the right of Guantanamo detainees to file traditional habeas corpus petitions, meaning that Swift's first hurdle as a civilian will be to argue that he has the right to represent Hamdan in federal court. Swift says the legislation's rules for the commission trials are "better by a degree" than the previous guidelines, but still leave open the possibility that a defendant could be convicted by unreliable evidence obtained by coercion.
He believes that military judges would have too much discretion to permit tainted evidence. "It's absolutely dependent on individuals rather than on clear rules of law," he says.
Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, said Swift was "a no-brainer for promotion."
He added that “Swift joins many other distinguished Navy officers over the years who have seen their careers end prematurely…He brought real credit to the Navy. It's too bad that it's unrequited love."
Swift never had a choice in representing Hamdan. He was ordered to represent him, but says that was only “for purposes of obtaining a guilty plea.” Instead, he took the case to a US Federal Court, which ruled that Hamdan had not received a fair hearing.
But Swift became a clear target for the Pentagon by testifying before Congressional Committees and speaking out in many other public settings about the Hamdan case.
That case has been bouncing around the US justice system for several years, beginning in 2004, when the DOD formally referred charges against the Yemeni national, one of six Guantánamo detainees who were designated by President Bush in July 2003 as subject to trial by military commission under the President’s Order of November 13, 2001. He is formally charged with conspiracy to attack civilians, attack civilian objects, murder, destruction of property, and terrorism.
Documents unsealed two years ago revealed allegations that Hamdan was beaten, threatened, and kept in isolation for upwards of eight months. A military commission preliminary hearing began the week of August 23, 2004.
In September 2004, the petition was re-filed in the federal district court for the District of Columbia, and, in November 2004, that court found the military commission unlawful because the process violated the laws of war and military law, and stayed the commission.
In July 2005 the Court of Appeals for the District of Columbia reversed the district court and upheld the commission as lawful. Concurring with that decision was then Judge John Roberts, who was later confirmed as Chief Justice of the Supreme Court.
Hamdan’s lawyers appealed the ruling, and in November 2005 the Supreme Court agreed to hear the case.
In January 2006, the government filed a motion for the Supreme Court to dismiss the case on the ground that the Detainee Treatment Act of 2005 (the Graham/Levin amendment) divested Hamdan of the right to seek habeas corpus in a federal court.
The Supreme Court – with Chief Justice Roberts not participating -- found otherwise. It ruled 5-3 that the president had no inherent authority to establish military commissions without Congressional authorization. The key issue was separation of powers as mandated by the US Constitution.
That sparked a huge battle between Congress and the White House, as well as among Senate Republicans. Most of these, joined by some Democrats who face tight reelection races in November, would have been content to rubber-stamp the “substitute” legislation proposed by the White House. But three so-called “maverick” Senators refused to go along. The “compromise” reached by the three – Senators John McCain, Lindsey Graham and John Warner -- was hailed by some as a significant congressional victory over the Executive Branch. But the compromise gave the president virtually everything he asked for.
Which means we aren’t anywhere close to having heard the last of Mr. Hamdan – or Lt. Commander Swift.
During the Senate’s debate over its new military commission legislation, as well as its deliberations on last year’s Detainee Treatment Act, we have been treated to endless tributes to the military’s JAG Corps and its competence and fairness.
Many of these paeans of praise have come from Senator Lindsay Graham, a South Carolina conservative who has been a military lawyer and judge for many years and who holds the rank of Colonel in the Air Force Reserve.
Well, it would be gratifying if Senator Graham now put his clout where his mouth is and pressured the Pentagon to reverse the Swift decision. From all Graham has said over the past several years, the Swift-Boating of this courageous young lawyer compromises the very soul of the JAG Corps of which Graham is so proud.
He should be seriously concerned about the chilling effect that the booting of Lt. Commander Swift will have on military lawyers who are ordered to mount a vigorous defense of their clients – and who get dumped as their reward.
Until that happens, the moral of the Swift story has to be that no good deed will go unpunished.