Monday, October 09, 2006

Lt. Cmdr. Charles Swift: Defender of the US Constitution

"Historically, it always depends on whether we make decisions out of fear or out of convictions. When we make them out of fear, we're rarely proud of them a hundred years later."
---Lt. Cmdr. Charles Swift, US Navy

Sometime in the spring of 1976, in the 8th grade here in Franklin, I was talking to schoolmate Charles Swift on the back steps of the old Middle School where the high school cafeteria and Media Center now stand. Charles told me he had been studying wrestling. My facial expression must have indicated my lack of awe: "Go ahead, try to take me down", he said.

I gave it a shot and in about two seconds Charles had me pinned.

"Let me try again", I asked.


This time I went low, grabbing Charles around both knees. Charles maneuvered quickly, I stood to reposition and in a flick, I was on my butt, looking up at his grin and his trademark winsome countenance.

As is the case of most of my former schoolmates, I never saw or spoke to Charles after graduation -- we had attended different high schools. All I remember was reading he had been accepted to the Naval Academy after graduating from Franklin High School in 1980.

He graduated from the Naval Academy in 1984 and from Seattle Law School in 1994. All told, Charles has 18 years in service to the Navy, 11 of them on the Judge Advocate General's Corps.

In March of 2006, Charles got to wrestle a most formidable opponent in the most august legal arena. The opponent, Secretary of Defense Donald Rumsfeld; the arena, the US Supreme Court; the case: Guantanamo Bay detainee Salim Hamdan vs Donald Rumsfeld.

Charles had been tapped for the tough duty of defending Hamdan in the spring of 2003. As he told Esquire Magazine: "The guy who gave me the job said he wanted fighters."

They got the right guy.

Civilian attorney Neal Kaytal actually argued the case in front of the Court but it was Charles who had gotten it that far. Hamdan, a Yemeni national (with a fourth-grade education who claims he never joined Al Qaeda and never fought anyone), was Osama bin Laden's former driver and was charged with conspiracy to commit terrorism. The case was about the nature of the military commissions set up by the Bush Administration to try the Guantanamo detainees. Specifically, Swift and his co-counsels argued that the commissions violated the Uniform Code of Military Justice and the four Geneva Conventions.

The Supreme Court agreed with Charles Swift.

The Court found that evidence gained through torture and unsworn testimony (including hearsay) was a violation of the UCMJ. The Court found that the commission mechanism which allowed for "secret evidence" -- evidence which could never be examined by a defendant and his attorney was a violation. The Court found that the prohibition on a defense attorney from even discussing certain evidence was a violation. The Court found that the lack of a true appellate process (all appeals would be heard within the Executive Branch only) was a violation.

The Court concluded that since the military commissions do not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, the commissions are in violation of the laws of war and therefore cannot be used to try Hamdan or his fellow detainees.

What does Swift have to say about all this?

Before the case reached the Supreme Court, Swift told Esquire magazine, "What became clear is that the president had determined to deviate from past practices. They were determined to make up their own rules."

The day the decision was handed down, Swift was interviewed by Hardball's Chris Matthews:

MATTHEWS: What about the charge made recently, just a couple minutes ago by Kate O‘Beirne of the “National Review,” that people who fight us who are not in uniform, who do not represent countries who are party to the Geneva Convention shouldn‘t be free riders? They shouldn‘t get Geneva Convention treatment. They should be treated like thugs.

SWIFT: Well, you know, if you‘re looking at it from that way, we have a lot of criminals here in this country. And to prejudge anyone that we capture outside the country as a thug, why are we having a trial in the first place? We‘ve already decided they were guilty.

What the Supreme Court said is you have the trial first, you use the procedures that are set up under international law, and then you decide whether they‘re a thug. You don‘t make the thug determination going in.


MATTHEWS: I only have a minute here, sir, and I appreciate your position, and I‘m being tough with you because there is another side to this argument. Let me ask you, do you believe that people who fight us as terrorists deserve Geneva Convention treatment?

SWIFT: It‘s not whether they deserve it or not. It‘s how we conduct ourselves. It has to do where if we say that our opponent can cause us not to follow the rules anymore, then we‘ve lost who we are. We‘re the good guys. We‘re the guys who follow the rule and the people we fight are the bad guys and we show that every day when we follow the rules, regardless of what they do. It‘s what sets us apart. It‘s what makes us great and in my mind, it‘s what makes us undefeatable, ultimately."
Such eloquence and such passion for the rule of law are lacking in our present situation. And now it seems that the Department of Defense is trying to inculcate more fear in the hearts and minds of those who have such a passion and clear vision for right and wrong for today I read this sad footnote:

"Lt. Cmdr. Charles Swift has been passed over for promotion and must soon leave the military according to the military's "up-or-out" promotion system."

Not one to be pinned, Charles effortlessly broke the hold that a morally derelict Secretary of Defense attempted by proxy as the Seattle Times informs us:
"It was a pleasure to serve," said Swift, who added that he would defend Salim Hamdan again, even if he knew he would have to leave the Navy earlier than he wanted.

"All I ever wanted was to make a difference — and in that sense, I think my career and personal satisfaction has been beyond my dreams," he said.

Swift, a Seattle University Law School graduate, also said he will continue to defend Hamdan as a civilian. The Seattle law firm of Perkins Coie, which provided pro-bono legal work in Hamdan's habeas corpus petition, has agreed to support Swift's defense of Hamdan in civilian life, he said.

In the opinion of Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, Swift was "a no-brainer for promotion," given his devotion to the Navy, the law and his client.

But, he said, Swift is part of a long line of Navy defense lawyers "of tremendous distinction" who were not made full commander and "had their careers terminated prematurely."

"He brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love."
Well, maybe some in the Navy, or, more likely, some in the Administration don't love him but I have the deepest respect and admiration for Charles Swift, for his passion, for his service, for his sense of history, and for his abiding faith that the moral high ground is the only place to win this current war.

And I couldn't be more proud than to have been tossed on my can by this man.