Lt. Commander Charles Swift: Lawyer for Bin Laden's Driver
"Hamdan is simply the most important decision on presidential power and
the rule of law ever. Ever." Walter Dellinger, former U.S. Solicitor
In response to the September 11, 2001, attacks on the World Trade Center and the Pentagon by members of Al Qaeda, Congress adopted a Joint Resolution authorizing President George W. Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks ... in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Acting pursuant to this Resolution, the President authorized the invasion of Afghanistan.
On November 13, 2001, President Bush issued an order as Commander in Chief authorizing the detention and trial by military commission of any non-citizen that the President finds "there is reason to believe ... is or was" a member of Al Qaeda or had engaged in terrorist activities aimed at or harmful to the United States. Procedures were subsequently established for such military commissions under which the accused was entitled to appointed military counsel. Evidence obtained through coercion as well as testimonial hearsay would be admissible if "in the opinion of the presiding officer [such evidence] would have probative value to a reasonable person." Neither live testimony nor written witness statements were required to be sworn. The presiding officer would have discretion to prohibit military counsel from informing his client of evidence that would be used against him. Hamdan v Rumsfeld, 125 S.Ct. 2749, 2786-7 (2006).
On November 24, 2001, a citizen of Yemen named Salim Hamdan was captured in Afghanistan by local militia forces who turned him over to the U.S. military in return for a $5000 bounty. He was held for six months at military bases in Afghanistan during which time he admitted under interrogation that he had worked for several years as a driver for Osama bin Laden.
In early May 2002 Hamdan was transferred to a newly constructed detention facility
called Camp Delta, located at Guantanamo Bay Naval Base in Cuba (on land leased by
the United States pursuant to the Cuban-American Treaty of 1903, under protest from
the current government of Cuba.) On July 3, 2003 the President announced his
determination that Hamdan and five other detainees at Guantanamo were subject to his
November 13 Order and thus would be tried by military commissions.
On December 16, 2003 Lt. Commander Charles Swift, a military lawyer, was assigned to meet with Hamdan in order to "engage in pretrial negotiations with a view toward resolving the allegations against him," even though no charges had yet been filed against him. (Hamdan was finally charged in July 2004 with (1) acting as bin Laden's "bodyguard and personal driver" all the while that bin Laden"and his associates were involved in" terrorist acts prior to and including the attacks of September 11, 2001; (2) arranging for the transportation of, and actually transporting, weapons used by al Qaeda members; (3) driving bin Laden to training camps, press conferences and lectures at which bin Laden encouraged attacks against Americans, and (4) receiving weapons training at al Qaeda-sponsored camps.)
According to Swift, "I was told that he would stay in solitary confinement until his trial was over and that my access to him was conditioned on negotiating a guilty plea." Charles Swift, "The American Way of Justice," Esquire (March 2007).
The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power
(Farrar, Straus and Giroux 2008)
Created by George Washington in 1775, the JAG Corps likes to call itself the oldest law firm in the nation, but for the better part of its first two centuries it was largely devoid of lawyers. ... World War II ushered in sweeping changes, though. Sixteen million Americans from every class and professional background answered the call to serve. Many were exposed to the military's conception of justice - during the war, there was an average of sixty court-martial trials a day ... James Forrestal, America's first secretary of defense, appointed a committee chaired by a Harvard law professor and former Army major, Edmund Morgan, to rewrite the rules of the country's 175-year-old system of military justice. The resulting document, the Uniform Code of Military Justice, was signed into law in May 1950. Among other things, it created a court of military appeals and provided service members with many of the protections of the Bill of Rights. Eighteen years later, against the backdrop of the ongoing civil rights struggle and a war in Vietnam whose protesters included members of the armed forces, came a fresh push for additional reforms. In 1968, Congress passed a new statute stipulating that counsel in court-martial trials could no longer be line officers without any formal legal training. They would have to be attorneys, serving under the command of their service's top lawyer, the judge advocate general; hence the now-familiar acronym JAG.
Charlie Swift - no one except his wife and parents called him Charles - was, by both reputation and self-profession, one of the most zealous defense attorneys in the [Navy's] JAG Corps.
When Swift arrived at the United States Naval Academy in 1980, he more or less fitted the profile of the average incoming midshipman. He had grown up in Franklin, a small town in western North Carolina, where he was an Eagle Scout and varsity athlete with obvious intellectual aptitude. As it turned out, though, Swift, the adopted son of a forest scientist and schoolteacher, was utterly ill-suited to the academy. ... He spent the better part of his junior year on campus restriction and disciplinary probation after racking up a string of offenses: an admiral's wife busted him skinny-dipping with a group of strippers; he was arrested after getting into a fistfight at a bar in Georgetown; he was hospitalized with alcohol poisoning.
Swift was scraping bottom academically too. The academy system rewarded nothing so much as efficiency; though it would not be diagnosed until many years later, Swift suffered from acute attention deficit disorder. He had a tendency to drift off during lectures and was easily distracted from his homework. ...
Swift may never have made it had it not been for Deborah Breaden ... whom he met one Saturday night at a dance ... A week later Swift took Debbie, a senior in high school who lived with her grandmother in Annapolis, to the Ring Dance, the formal ceremony where juniors are presented with their class rings. "I fell head over heels with the guy immediately," Debbie later recalled. "He just seemed to exude this incredible energy." ... Swift's performance at the academy instantly improved. He now had an incentive to keep his weekend privileges, and for the first time he was focused on his future. ... [N]ine months after graduating-960th out of a class of 1,006-he donned his dress whites and married Debbie beneath crossed swords in the Naval Academy's chapel.
Few midshipmen actually enjoy being at the academy ...Yet by the time they are done, even those who hate the academy the most - perhaps especially those who hate the academy the most - tend to recognize that it has changed them. The Naval Academy's goal isn't simply to educate midshipmen. It is to develop them "morally, mentally, and physically" to defend their nation. Between the culture, the coursework, and the ubiquitous reminders of heroism - the ribbons that decorate the uniforms of instructors, the monuments that dot the campus - it is a lesson that usually sticks. "The Academy reinforced your love of country," wrote Robert Timberg, an Annapolis alumnus, in his book The Nightingale's Song. "It was not blind affection, and certainly not an overweening patriotism. You knew the United States had its faults, serious ones … But you also felt an optimism that the country could come to grips with its problems if given a chance. That was your job, to give it a chance."
The notion of law school had first occurred to [Swift] in 1990, when he was a twenty-nine-year-old surface warfare officer, the navigator of a Navy frigate called the Rathburne. One of Swift's collateral duties was chief legal officer, so when a few of the Rathburne's sailors were arrested one night in a port town in Malaysia for smoking pot, it fell to him to negotiate their release. Swift made a time-honored defense lawyer's argument on their behalf: because the sailors had only one joint among them, only one of them could be guilty of possession. By sunrise he had managed to spring two of the men and got the third moved out of the prison's basement.
Law school was a struggle for Swift ... He had a knack for spotting issues and grasping concepts, but he was frustrated by the formality of legal writing and became tangled up in his own thoughts. He fell behind in classes that failed to hold his interest. His grades suffered, awakening in him feelings of inferiority and self-doubt that he chased away by drinking rather than studying, which only accelerated his downward spiral. Debbie ... was teaching grade school at the time and had encountered several children with ADD. It occurred to her that Swift had all the same symptoms, both good and bad: restlessness, distractibility, forgetfulness, and a tendency toward addictive behavior on one side of the ledger; intuitive intelligence and creativity on the other. She suggested that he get tested, and he came up positive. The diagnosis came almost as a relief to Swift. Gradually, with the encouragement of Debbie and a couple of his professors, he began to turn things around.
Swift returned to the Navy as a lieutenant. For his first case, he was detailed to serve as
assistant counsel to a veteran JAG named Brent Pope, who was defending a sailor
whose two teenage stepdaughters had accused him of sexually molesting them, a
crime that carried a possible sentence of twenty-five years. ... The trial started a couple
of weeks later. Swift felt sick to his stomach and confessed to Pope that he was
nervous. He found Pope's response strangely calming. "You're not even going to
remember that guy's name in three years," Pope said, gesturing at their client. "But he's
going to remember yours for the rest of his life."
... Swift discovered that the older [stepdaughter] had once accused some boys of raping her but had later admitted that the sex was consensual. ... Swift hadn't expected to do much more than keep track of the evidence and take notes, but Pope suggested that he cross-examine the older girl's child psychiatrist, a key witness for the prosecution. When Swift pressed her about her patient's credibility, the psychiatrist said the girl was getting better; she now told the truth at least 50 percent of the time. Impressed with Swift's performance, Pope asked him to give the closing argument too. Swift flipped a coin in front of the jury box. "That's what the prosecutor's idea of justice is," he said. Their client was acquitted on all but one minor charge.
... Guilty pleas are common in the JAG Corps. As far as the military justice system has come, commanders are still responsible for deciding whom to prosecute and on what charges, meaning that mounting a vigorous defense is tantamount to challenging a superior officer. Swift contested almost every case that crossed his desk ...
NATIONAL PUBLIC RADIO
February 15, 2007
This is TALK OF THE NATION. I'm Neal Conan in Washington.
In December 2003, Lieutenant Commander Charles Swift, a Navy lawyer, got a letter from the Department of Defense. They told him, to his surprise, that he'd been assigned to represent one of the detainees being held at Guantanamo Bay.
Salim Ahmed Hamdan, a citizen of Yemen, was picked up in Afghanistan a few months after the American troops there toppled the Taliban, and he acknowledged service as Osama Bin Laden's driver. The Bush administration transferred him, along with hundreds of other terror suspects, to the prison on the U.S. naval base in Cuba.
Commander Swift wrote about his experience in an article in the current issue of Esquire magazine. He joins us here today in Studio 3A. Nice to have you on the program today.
Lieutenant Commander CHARLES SWIFT (Navy Judge Advocate General): Thank you for having me.
CONAN: And I guess we have to begin with a pro-form announcement that you speak for yourself.
Lt. Cmdr. SWIFT: That's absolutely right. All of my comments made here today do not represent the opinion of the Department of Defense, the Department of the Navy or the United States Government.
CONAN: Well that out of the way, did you have any idea of what you were getting into the day you got that letter from the Defense Department?
Lt. Cmdr. SWIFT: At that point, yes I did. I'd been actually at the military commissions for about six months. I was - when I was sent the military commissions, I had no idea what I was getting myself into, but I'd already been there for six months waiting for a case. So I had a pretty decent idea, although I was surprised when the letter conditioned my access to Mr. Hamdan on a guilty plea. That part was, even after being at commissions for some time, surprising.
CONAN: Explain a little bit more about what you mean by your access to your client was conditioned on him pleading guilty.
Lt. Cmdr. SWIFT: Yes, they'd asked Colonel Gunn to appoint - who is the chief defense counsel - to appoint defense counsel for the limited purpose of negotiating a guilty plea. And the letter made quite plain that you would see the prosecutor to get access, and that if for some reason you were unable to negotiate a guilty plea, that that access could be cut off.
CONAN: And at that point, once you've read this letter, are you allowed to say hey wait a minute, this is not what I learned in law school, was not what I signed up for?
Lt. Cmdr. SWIFT: You know, that's exactly what I thought about.
CONAN: [L]et me ask you Commander Swift ... did you think, oh boy, this might be a career killer?
Lt. Cmdr. SWIFT: Yeah, no. I didn't think about it in those terms. I thought about it as this is the ethical way that I can do my job.
CONAN: Ethical way you can do your job?
Lt. Cmdr. SWIFT: Exactly.