If you accept the Vietnam-era proposition that military justice is to justice as military music is to music, I have a Web site for you. It’s where you can watch the kind of justice President Bush decreed for “enemy combatants” at Guantanamo Bay being lambasted by lawyers in uniform–military officers defending the nation’s honor against George W. Bush’s White House.
“How can you work with a client inside a system that you fundamentally don’t believe you can tell him is likely to produce justice?” navy lieutenant commander Charles Swift muses during an October 5 panel discussion that’s preserved online at http://law.shu.edu/guantanamoteachin.
Swift’s Guantanamo client was Osama bin Laden’s driver in Afghanistan, Salim Ahmed Hamdan, a Yemeni captured by the Northern Alliance in November 2001 and handed over to American troops. In 2003, when the American government got around to issuing charges against a handful of Guantanamo detainees, Hamdan was accused of conspiracy to commit terrorism, and Swift was assigned to the case. “The letter that requested that I be Mr. Hamdan’s defense counsel conditioned him having a counsel on him negotiating a guilty plea,” Swift continues. “That is, once the counsel was assigned, if Mr. Hamdan didn’t want to plead guilty then [my] access to Guantanamo Bay would be cut off. His choice, while in solitary confinement, was ‘Plead guilty, you can get out.'”
The justice Bush decreed for enemy aliens in the war on terror permitted the U.S. to hold them indefinitely on foreign soil, denied them the right to confront the evidence against them (which could include coerced testimony and hearsay), and permitted the secretary of defense to intervene in the military tribunals that would decide their fate.
Swift says, “My first real ethical question was, ‘Can I go down and participate in this at all?’ because I may be being used to force this man to plead guilty when he doesn’t think he’s guilty.” Swift decided to promise Hamdan that if he refused to plead guilty, giving Swift no further access to him, Swift would challenge Bush’s rules in the federal courts. “The only way my client would ever receive justice was to change the process,” Swift says. “If you couldn’t work in it, then you had to change it.”
And that’s what happened. Remarkably, last June the Supreme Court settled Hamdan v. Rumsfeld by ruling for Hamdan. The ruling didn’t free him or anyone else held at Guantanamo, but it changed the ground rules, stating that Bush’s tribunals would violate the Uniform Code of Military Justice, the Geneva Conventions, and even the express will of Congress.
Swift aggressively defended Hamdan not only in court but in the media, where he described his client as a human being worthy of simple justice. Hamdan claimed to have taken the $200-a-month job driving bin Laden because he had a wife and two young daughters to support and claimed to have had nothing to do with planning or carrying out terrorist acts. “After all,” says Swift during the panel discussion, “the president had said they were all bad men, and the secretary of defense had said ‘They’re the worst of the worst.'” As Swift saw it, the people accusing Hamdan were the same ones who “were ultimately going to decide his fate. The system itself was unfair, and to not respond to the heavy media bricks put on by the Department of Defense saying it was fair, to me misinterpreted or didn’t get the entire story out.”
The occasion for this panel discussion was the “National Guantanamo Teach-In,” a daylong event sponsored by the law school of Seton Hall University in New Jersey and consisting of speeches and panel discussions fed live by streaming video to the law schools of more than 200 colleges across the country. Every program is available to the public at the above URL and at event. netbriefings.com/event/seton/Archives/guantanamo/register.
Most of the participants were lawyers. Some were clergy and medical professionals, and some were journalists who’ve covered Guantanamo or who–like the Reader’s John Conroy, sitting on a panel discussing the “History of Torture in the Modern World”–could illuminate Guantanamo in other ways. Swift’s panel was the last of the day, its topic “The Military and the Commander in Chief.”
The teach-in was presided over by Seton Hall law professor Mark Denbeaux, who with his son Joshua, also a lawyer, earlier this year issued a study of 517 Guantanamo detainees. According to the study, based on the Department of Defense’s own data, only 5 percent of the detainees were captured by American forces, and 86 percent were handed over at a time when the U.S. was offering bounties for prisoners. And only 8 percent were characterized by the Defense Department as Al Qaeda fighters.
Ronald Meister, a New York lawyer, moderated Swift’s panel. After Swift told the Hamdan story, Meister asked what difference litigation had made–after all, not a single detainee has been released because of it. Congress’s response to Hamdan v. Rumsfeld had been to pass the Military Commissions Act of 2006, modifying the tribunal system somewhat but refusing to grant the detainees a right to habeas corpus. Meister, who’s served as a navy lawyer and judge, wondered, “What’s the difference to someone at Guantanamo if he’s imprisoned for the rest of his life as an unlawful combatant or imprisoned for the rest of his life by a military commission?”
Swift replied that the original tribunals “took on the aura of a high state trial” in which the judiciary and the traditional “separation of powers” had no place. His legal challenge allowed society to take a “deep breath” and think twice about how to respond judicially to terrorism. “I don’t think the problem of international terrorism is going away anytime soon,” he said. “There are no easy answers to these questions, but we need to keep asking them.”
Another panelist was retired rear admiral Donald Guter, who, as the navy’s judge advocate general from 2000 to 2002, was an early critic of the tribunals. Now dean of the law school at Duquesne University, he said, “We upheld some of the highest values of the country when some of our politicians did not.”
The third panelist was reserve marine colonel Dwight Sullivan, chief military defense counsel to the military commissions. The best he could do to find a bright side was to recall something Justice Louis Brandeis once said: “Sunshine is the best disinfectant.”
Sullivan, who was Swift’s supervisor at Guantanamo, shares his disdain for the rules they were expected to work under, saying, “There are many bad aspects of the Military Commissions Act, but one of the worst sides of it is the court-stripping provision that attempts to take away the right of habeas corpus.” Sullivan said that before the House voted on the act last month he told a congressman he knew, “This court-stripping provision is really a cure in search of a disease,” and the congressman said he’d heard that the detainees were given to filing frivolous motions.
“There are two million people in the U.S. prison population,” Sullivan exclaimed. “There are 450 people at Gitmo–one-fifth of one percent of the U.S. prison population. The courts every day in the United States get frivolous petitions from prisoners. And they dismiss them every day. It isn’t hard. The incremental difference that these 450 people can make even if they were filing frivolous lawsuits–and let’s be serious, ‘I’m being detained, and I did nothing wrong’ is not a frivolous lawsuit–it’s not a great burden on the courts.”
Swift said that when he became a military defense counsel he decided that despite his uniform “I owed my loyalty to the client, and I would do whatever was in the client’s best interest….I would never worry about my career. If I thought, ‘What would this do to my career?’ I had no chance of doing the job I was supposed to do.”
The question Swift didn’t allow himself to ask has apparently been answered. About two weeks after the Supreme Court ruled in Hamdan v. Rumsfeld he was passed over for promotion. Under the navy’s “up or out” policy, he’ll have to leave active duty next spring.
aIf the Tribune’s Paul Salopek had known how to pull it off, I think he would happily have written “Jailed for 34 days…My time in Darfur” without mentioning himself at all. As there was no way around it, he gave himself a role in last Sunday’s engrossing account in the Tribune, but a modest one. The real story, he admirably seems to believe, wasn’t his tribulations but the region’s agony.
aOn Monday the Tribune ran its second TIF-wary editorial of recent weeks, this one a lot tougher than the first. The Cook County Board recently had three proposals from commissioner Mike Quigley to consider that might have forced TIF sponsors–including Mayor Daley–to work harder to justify tax increment financing districts. The Tribune ripped the board for rolling over and approving none of them–even though tax increment financing districts divert hundreds of millions of dollars in taxes from the county.
The Reader’s Ben Joravsky has been writing about TIFs for years. (He’s got a new story this week, and past columns are posted under Hot Topics on the Reader’s home page, chicagoreader.com.) He’s been wondering all along when other papers would discover the issue.
Art accompanying story in printed newspaper (not available in this archive): Defense Counsel via Getty Images (Hamdan ), Joshua Roberts/Getty Images (Swift).