Detainees' Military Lawyer Forced Out of Service

The Navy lawyer who successfully challenged the Bush administration's military tribunal system at Guantanamo Bay is retiring. Lt. Cmdr. Charlie Swift is being forced to leave the service after being passed over for a promotion. But Swift insists that he is not the victim of retaliation.

In May of 2003, Swift was assigned to represent Yemeni citizen Salim Hamdan, who had been Osama bin Laden's driver. Swift was told that his task was to plead Hamdan guilty to war-crimes charges. He decided that was unethical, and instead went to court to challenge the system.

For three years, Swift has been the public face of the opposition to the tribunal system. Wearing his military dress uniform, he has testified before Congress, argued in court, and pleaded his case before banks of media microphones.

"I brought this suit because I had a client who was sitting in solitary confinement, going slowly insane, and every request I had made for relief had fallen on deaf ears," Swift told reporters at the time.

In June, Swift and the appellate team he helped to assemble won in the U.S. Supreme Court. Two weeks later, he was notified that he had been passed over for promotion. And under the Navy's "up or out" policy, he would have to retire when he reached 20 years of service, which will be next spring.

Still, he says he doesn't think he is being forced to retire in retribution for his handling of Hamdan's case.

"In taking the Hamdan case," he said, "I took myself out of the normal progression path."

Experts agree the Navy makes promotions with a bias toward war-fighting skills. In short, the Navy wants generalists, even in its lawyers: People who can serve as legal advisors to battle groups and base commands. Swift is a litigator.

He is not the first highly regarded trial specialist to be forced out. The first prosecutor in the Hamdan case also was denied promotion and forced into retirement, as was another key member of the Guantanamo defense team, a lawyer with 16 years in the service.

"They're extremely rare," said Georgetown law professor Neal Katyal of litigators of Swift's caliber. Katyal worked with Swift on the Hamdan defense, arguing the case in the Supreme Court.

"And any system that doesn't promote them is one that I think deserves a really close look by the political branches. Not on retaliation grounds," he said, "but on simple grounds of, 'Is this the right way to operate a system that lets these amazingly talented lawyers go?'"

The Navy brass says the promotion system is run by the military itself, and is not subject to political influence. But former Navy Secretary Richard Danzig says the system is so rigid that it tends to discourage creative people. Former Navy General Counsel Alberto Mora adds, "You hate to see a guy like this go. It sends a mixed message."

Swift, 44, graduated from the U.S. Naval Academy in 1984, then spent seven years aboard a variety of ships, eventually captaining a frigate. He left the service to go to Seattle University law school, and later decided to come back into the service as a military lawyer, acting both as a prosecutor and a defense lawyer.

But Swift admits that it is the defense work he has loved most. He says he knew it might be a career-ender when he took the Hamdan case, instead of seeking an assignment outside the courtroom. But he had hoped the case would present special circumstances that might have allowed a promotion.

Asked what his reaction was when he got word that he had not been promoted, Swift's answer was two-fold.

"Sad," he replied. "Because it meant that I was finishing my career. On another level, when I went to the Naval Academy, when I thought about, 'what do you want for your career?'

"An opportunity to make a difference. And I'd had that opportunity, an opportunity few people would get, certainly as a lawyer. And I wouldn't trade that opportunity for any number of promotions."

I wondered whether he worried about retaliation during those years when he was publicly castigating the system set up by the president and the secretary of defense.

"What I worried about was my boss. And ultimately, my boss was a detainee in Guantanamo Bay," he said.

Swift says he hopes to be able to continue to represent Hamdan even after he has left the service. With Congress having given President Bush almost everything he wanted in re-establishing the tribunals, Swift knows he will likely have to fight old battles again.

"Having climbed the mountain, and [gotten] to the peak, [now it] seems the mountain keeps going up. And we thought it would be over."

And what will Swift do to earn a living? He is contemplating working for a human rights organization, or perhaps as a defense lawyer. "I'd love to have represented Martha Stewart," he said. "She was railroaded!"

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