Monday, October 16, 2006

Gagging Defense Lawyers & Another Swift Update

A single story in yesterday's LA Times has two major items of interest:

MIAMI — The U.S. Marine Corps has threatened to punish two members of the military legal team representing a terrorism suspect being held at Guantanamo Bay if they continue to speak publicly about reported prisoner abuse, a civilian lawyer from the defense team said Saturday.

The action directed at Lt. Col. Colby Vokey and Sgt. Heather Cerveny follows their report last week that Guantanamo guards bragged about beating detainees, said Muneer Ahmad, an American University law professor who assists in the defense of Canadian suspect Omar Khadr.

The order has heightened fears among the military defense lawyers for Guantanamo prisoners that their careers will suffer for exposing flaws and injustices in the system, Ahmad said.

"In one fell swoop, the government is gagging a defense lawyer and threatening retaliation against a whistle-blower," Ahmad said. "It really points out what is wrong with the detainee legislation that Bush is scheduled to sign on Tuesday: It permits the abuse of detainees to continue, immunizes the wrongdoers and precludes the detainees from ever challenging it in court."

The Marine Corps said the gag order had been issued to ensure the legal team's actions were in compliance with professional standards. "The Chief Defense Counsel of the Marine Corps, as Lt. Col. Vokey's direct supervisor, has directed him not to communicate with the media on this case pending her review of the facts," said 1st Lt. Blanca E. Binstock of the Marine public affairs office.

Defense lawyers for Guantanamo prisoners say the personal stakes are high and point to the Navy's failure to promote Lt. Cmdr. Charles Swift after he successfully challenged the legitimacy of the Pentagon's war-crimes commissions. Two weeks after the Supreme Court ruled the commissions unconstitutional and lacking in due process, Swift was passed over for advancement and will be forced by the Navy's up-or-out policy to retire by summer.

At least three other military defense lawyers for the 10 charged terrorism suspects have also been passed over for promotion in what some consider a subtle reprimand of their vigorous defense of their clients.

"We've all known that representing folks in these kind of circumstances would have consequences, but to actually see Charlie passed over after he takes his case to the Supreme Court and wins — that certainly put it in the forefront for me," said Army Maj. Tom Fleener, who represents Ali Hamza Bahlul of Yemen.


Swift declined to comment on not having received a promotion.

"As a defense attorney, I don't like allegations without evidence," he says of the widespread view among his colleagues that he was punished for challenging the administration's tribunal process.

"What you sought in any career was an opportunity to make a difference. I got that opportunity, and for that I will be forever grateful," Swift said.

He said the new commissions legislation appears to preclude defendants' getting a fair trial.

"A zealous defense is essential to any process that works," Swift said. "What has given the commissions any integrity so far is the ability of defense council to raise the case and concerns in all federal forums and the commissions themselves, and when necessary, in the media."
Four passed over for promotion. Coincidence? The honorable LCDR Swift counsels not to see a conspiracy until there is evidence for such. OK, then. We'll just keep watching.

Swift appeared on Friday's Countdown with Keith Olbermann:

OLBERMANN: Not to downplay the significance of what happened to you, but were you at all surprised by this decision?

SWIFT: Well, I knew that when I’d taken the Hamdan case they I’d stepped off the normal career path, and that that would make it more difficult to get promoted. As far as the outcome of the Hamdan decision in the Supreme Court, I was confident we would win it, it was the right decision.


OLBERMANN: Two questions about this case—is it true access to your client was conditional upon his admission of guilt?

SWIFT: Yes, it was. The original part, when I was—the letter that asked me to be assigned to him, or for someone to be detailed said that access was only—or access to him was conditioned on working on a guilty plea. And that was the most difficult thing ethically was how to deal with that, taking the case. And I decided the only way I could do that was offer him an option B and that would have been and was to sue in the federal courts to try and get a fair trial, a second option, and, well, once I decided that that was—those were the two options, and I went down and talked to him, from then on, every decision was pretty easy.

OLBERMANN: Will you still be representing him, and regardless, what’s the next stage of this defense.

SWIFT: Well, his case is back in the district court. And I still represent him there. The Supreme Court sent it back down. and we’re now waiting to see what the government tries to does with the MCA. Sadly, it doesn’t seem to be much of an improvement, Mr. Hamdan’s case, given the Supreme Court’s decision, I think it’s pretty clear that it’s unconstitutional.

It would constitute ex post facto and a bill of attainder and so, you know, if they try to try him in the new system then we’re going to, again, pursue action in the federal courts. There are alternatives, we could have a trial in the federal court. The Supreme Courts may clear that that would be legal and I would hope to defend him in either place, but you know, he’s my client I promised him I would defend him and that’s what I intend to do.

OLBERMANN: Some of us have been shaken to the core by all that we are seeing in the last few months pertaining to things like GITMO and detainment and the rest. How serious do you think all this is based on your experience with the Hamdan case at Guantanamo Bay and with what has happened to you. To what degree is the fairness of our legal system, even the preservation of our collective legal rights at risk right now?

SWIFT: Well, you know, the Supreme Court has taken six commission cases in their history and that’s actually a tremendous number, given the number of commissions, and in Milligan, the first commission case, this is the same court that decided Dred Scott, they said that no graver issue had ever faced them as a court than the question of the military commissions and executive entering into to be the sole decider of justice.

I think that continues to be true and it was true at our founding. Thomas Paine said famously that “He who would seek liberty must first defend his enemies from oppression, lest he set a precedent that will reach himself,” and when we say that you can have a full and fair trial without the accused present or you can use techniques such as waterboarding to extort a confession, and use that, and that’s fair, then inevitably, that’s going to haunt to us, and it’s going to haunt us and your children. We have a chance still to stop this, and I’m you know, dedicated to preventing that from happening.