NEAL CONAN, host:
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.
Hamdan's military counsel found himself in a legal limbo that's been compared to "Alice in Wonderland," Kafka and "Catch-22." For example, the government wanted to try Hamdan for alleged war crimes before a military tribunal but acknowledged that he would face indefinite incarceration even if he was found not guilty.
Lieutenant Commander Swift determined that the court established to try the case was unconstitutional, and after three years of legal twists and turns, the United States Supreme Court agreed with him.
Now for the first time the 20-year Naval officer has written about his experience, about why he thinks the administration subverted 250 years of legal principles and why Guantanamo should be closed.
Later in the program, Ask Amy about the dangerous progression from flirtation to an emotional affair. Amy Dickinson joins us from Chicago. But first, Lieutenant Commander Charles Swift. If you have questions for him about the legal battle, about Guantanamo Bay or how he thinks terrorists ought to be prosecuted, our number is 800-989-8255. That's 800-989-TALK. E-mail is email@example.com.
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. You know, my real question, I thought to myself, okay, this is not what I understand a defense attorney to do. This is not how I view myself as an independent lawyer when I represent an individual; and I'm being asked to represent him, not the government. And that's the only way our system could possibly work.
So, you know, I asked myself some very hard ethical questions. And I came back with the answer that, you know, A, maybe he wants to plead guilty, and I don't know; and B, you know, if I can offer him another choice, if there's something else other than plead guilty, you know, then I see that I can do this ethically.
And so I had talked at that time with professor Neil Katyal. He and I and others were working on an amicus brief in a related case in the Supreme Court. And he said, you know, yes, I'll work with you. I'll file - we can file our case together in federal court, and we at least have a good-faith argument for that case.
So there's a second choice. And so when I went down to meet with Hamdan, I went down and said okay, there is, you know, they would like you to plead guilty. They haven't said to what, and they haven't said what kind of time you'd do. And they have said they can keep you after you plead guilty and that you by no means would ever be released.
But I can offer you an alternative, and that is to sue in federal court. And I explained why I thought the law of war, the Constitution and other law applied here, and his answer to me was that the guard said there was no law in Guantanamo. It didn't exist.
And I said to him, you know, I don't believe that, but perhaps in arrogance, perhaps, you know, in the zeal of the moment said we're going to have to go the United States Supreme Court and win that. And you know, he ultimately agreed to that level of representation, and that began a three-year odyssey that got us to the Supreme Court, where we won.
CONAN: Let's go back just a minute. This is the first time you got to meet your client. We hear, you know, Salim Hamdan, former driver to Osama Bin Laden, alleged terrorist. That's all we hear. Who is he? What's he like?
Lt. Cmdr. SWIFT: Well, you know, to the extent that I can talk about it, because there are some areas that I'm limited, but there's some general background. When I met him he was 34 years old. He has fourth-grade education. He's unique in the Arab world, in a sense, in Yemen, in that he is an orphan. He really has no family, at least he didn't in his teenage and young adulthood.
And he lived on the streets, in Sanaa. And he, you know, by wit he had one trade: He knew how to drive vehicles. And he was a pretty good shade tree mechanic. That kind of went with being a driver. You couldn't take it down to Exxon and get it fixed. So, you know, he could work on the vehicles, and he was basically renting a vehicle when he could, driving it, and then paying the guy back and trying to make some money here.
It was a sharecropper-like existence where he generally ended up in the hole, but it was the best he could do. And he was recruited at some point to join a group of people going to Tajikistan to fight against the remnants of the communist government, you know, to install an Islamic government.
And you know, he really didn't understand it, but their pitch to him was it's better than here, which was true. He wanted to - in Yemen, the principal source of income, as remittent as that is - I mean, people, family members who leave Yemen, work someplace else, send money back. Really, it's one of the poorest countries on Earth. And they said, you know, there's some money in this and you can come along, and we need a driver. And he went along.
Ultimately, that group never went to Tajikistan, and some of its members ended up becoming bodyguards for Bin Laden. Hamdan was literally the guy leftover, and ultimately he was hired by Bin Laden not as a fighter, but to drive trucks and vehicles and be in the motor pool, and that's what he did.
And so he was paid by Bin Laden, basically, to drive vehicles, and that's what he knew and what he was. He wasn't a political person. The job worked for him, because he got married. He had two children. All of that was things that he couldn't have done without having steady work. And for him, you know, having a family after having had none was such a great deal.
And that was where he was devoted, and he was trying to save enough money so that he could buy a vehicle in Yemen. That was - his dream was to buy a vehicle so that he could, you know, own the vehicle. Sort of, you know, the idea of the sharecropper going a little farther. If I can own my own land then, you know, I can make a living. And, you know, that will allow me to pay for a house and my children will do better.
CONAN: This is of course what he told you, and I guess there's got to be some element of doubt as to whether he might have been hiding his more nefarious activities.
Lt. Cmdr. SWIFT: Well, you know, I've also talked to his spouse. I mean, there is some element of doubt, and I think that, you know, there should be a trial, a federal trial, to determine this. But, you know, his spouse backs up most of this, and it's what was in his statement in federal court.
So yeah, it does - you ask on who he is - these things that how did he registered his wife to vote in Yemen, that he has two baby daughters he absolutely loves. I mean, he's devoted to. One of them, sadly, he's never seen but, you know, he breaks down in tears every time he sees her picture. That he's not a particularly religious man. I mean, other than being religious in the sense that he lives in Yemen now and his national religion - he grew up Islam, Muslim.
CONAN: Muslim, yeah.
Lt. Cmdr. SWIFT: But he hadn't actually received any real formal training in it. You know, so he is a guy who, unfortunately for him, ended up with what looked to him at the surface to be a good employer and was a very, very bad one.
CONAN: We're talking with Lieutenant Commander Charles Swift, the Navy JAG, that's the Navy lawyer - Judge Advocate General - who represented Salim Ahmad Hamdan in the celebrated case before the United States Supreme Court.
If you'd like to join us: 800-989-8255, 800-989-TALK. E-mail is firstname.lastname@example.org. And why don't we begin with, let's see, all right - let's go to - well, we're having some difficulties with our caller button today.
We'll try to get that fixed during the break. In the meantime, let me ask you Commander Swift, when you decided to file the lawsuit - you've been in touch with Neal Katyal, the civilian attorney -decided to file a lawsuit against the secretary of defense, your other boss. At that point 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. I mean, I couldn't sit down there - as a defense attorney, if I'd been assigned to zealously represent somebody, if I was going to be their defense counsel, I couldn't be there to force a man to plead guilty when he didn't want to plead guilty. And those were our only choices at that point. And I also looked at it and said, you know - by that time I'd come to the firm personal conclusion that the military commissions were unconstitutional.
And the oath as a military officer is now to support and defend the Constitution of the United States. And following an order that you believe to be absolutely unconstitutional without challenging it when you're in a position to do so, I saw as simply wrong. This was the ethical way to carry out my duties.
CONAN: And you saw the overweening, controlling factor here - your client was the boss, not the secretary of defense.
Lt. Cmdr. SWIFT: Absolutely. Your client has to be the boss. If you're not - if you're a defense counsel and the government is who you're ultimately taking orders from, you're not representing the individual, you're representing the government. Now they do that. They used to do that in the old Soviet Union. The defense counsel worked for the Soviet Union. So they would stand there, and their job in the trial was to get as far away from the defendant as possible and explain quietly why, of course, they deserved this punishment. You know, I think we're different.
CONAN: Lieutenant Commander Charles Swift with us here in Studio 3A. We'll try to take your calls when we come back from a short break: 800-989-855, 800-989-TALK. E-mail us, email@example.com. I'm Neal Conan. We'll be back after the break. It's the TALK OF THE NATION from NPR News.
(Soundbite of music)
CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.
The Supreme Court's decision to invalidate the system of military tribunals set up to try criminals at Guantanamo Bay was the end of a three-year legal battle for Lieutenant Commander Charles Swift, and the Navy lawyer who was appointed to represent the detainee is our guest today.
If you have questions for Commander Swift about the case, trying terrorism suspects or about Guantanamo Bay, give us a call: 800-989-8255, 800-989-TALK. Our e-mail address is firstname.lastname@example.org. We've got a system set up. We think we can take calls. Michael(ph) joins us on the line from Gettysburg, Pennsylvania.
MICHAEL (Caller): Neal, thank you for taking my call.
MICHAEL: Commander Swift, and thank you. As a citizen listening to some of the way the government has prosecuted these cases, I find it terribly frightening. And I was hoping you could talk a little bit about the resources that are made available to you to defend a case like this. The government obviously has unlimited resources. What resources were you given?
Lt. Cmdr. SWIFT: Well, I was given me. And, you know, that's sadly - sometimes I've gone in and told every client I've ever represented in the military or civilian world that the government has unlimited resources and you've got me. And that's the way it us unless you've got more money.
In this case what I've been thankful for, and I think the country should be thankful for, is that lawyers around the country - civilian lawyers, civilian law firms - saw the threat that this form of justice posed to a legal system that they worked for and believed in. And I think in an age where it's very tempting to make lawyer jokes, what we saw was the biggest firms and just solo practitioners step forward repeatedly to take on and say: What can I do? How can I help? And that formed the Hamdan team, because to say that Hamdan went to the Supreme Court with just me and Neal would be grossly wrong.
CONAN: And he's speaking of Neal Katyal, not this Neal you're talking to now.
Lt. Cmdr. SWIFT: Neal Katyal, the professor at Georgetown. You know, Neal and I started the effort, but boy, we got a band of followers. And that included the law firm of Perkins Coie in Seattle, which did and continues to do to this day incredible work, who backed us when it wasn't fashionable. Over 40 different amicus briefs. Anyone we wanted took our phone calls and gave us counsel. We've had so much assistance to get there.
And, you know, the system has worked to the extent it has out of I think the legal profession's understanding of the need of that profession to band together to protect the rule of law itself, because the fundamental arguments being made in Guantanamo Bay is that the rule of law is a bad thing. It actually puts us in jeopardy.
CONAN: It makes - it leaves us exposed to danger.
Lt. Cmdr. SWIFT: Right. And so the rule of law has to go away and you don't actually lose any fairness when that happens. You see, they argued at the beginning that a military commission was a full and fair trial. And that's all I've ever asked for any client I've ever had. I haven't gone in and said I want more than a fair trial. And under that argument, you know, the Bill of Rights are luxuries. The idea that you can't change the rules in the middle of a trial - well, that's actually not necessary for fair. Under that idea, you know, if we coerce someone to talk - say, put them on a water board, simulate drowning, and they talk in that, it's reliable and it's a fair trial.
And that, to me, was incredibly dangerous. It was a double standard that would give our enemies, you know, the power of fact in their recruiting drives and it would cause our friends to turn away from us.
CONAN: Let me just interject. Time of war, Abraham Lincoln famously suspended the right of habeas corpus during the Civil War and the Supreme Court reversed him, but not until after the war was over.
Lt. Cmdr. SWIFT: Right, and Justice Rehnquist talked about that and all the (unintelligible) all the rules but one. There are two critical differences. One, at the time that Lincoln suspended it we were in a time of rebellion under the Constitution. You know, let's understand there was a hostile army 12 miles from the capital. We knew how long the war - while you didn't know how long, had a foreseeable end. So you weren't in a time of no end and you had a readily identifiable enemy. More importantly, you know, the Civil War is used during this period of time, but what you found was that both sides applied the law of war to the other side. You had, you know, military commissions and the trials and those things that happened were done in accordance with the law of war.
In fact, the Lieber Code, which governs the fight of the Civil War, is the model for the Geneva Conventions. When I say we are the Geneva Conventions, that's because we wrote the Lieber Code in our most bloody conflict. And, you know, the differences here for me as a lawyer was that we were arguing that none of that applied anymore. There was no Geneva Conventions. We weren't going to follow them, that instead of there being some order we would follow, the orders were whatever the president wanted them to be that day. And that's the power of kings before the Magna Carta.
And I believe the Supreme Court had never cognizanced a commander in chief with that kind of power.
CONAN: Here's an e-mail question. This from Valerie(ph) in Boise, Idaho. How many other attorneys served detainees in Guantanamo in the same capacity as Commander Swift has, facing the same Catch 22 that required representing only defendants who would plead guilty? How many of them made the similar choice as Commander Swift, who opposed this unfair choice.
Lt. Cmdr. SWIFT: To my knowledge, there was one other guy who had the choice of plead guilty, and that was Major Dan Mori. I think he got the same letter, and he represents David Hicks of Australia. And Major Mori has represented Mr. Hicks equally zealously. He has done a terrific job, continues to do a terrific job. But, you know, I think - well they have not, and again, tried that particular one that said your access after both Major Mori and I - Major Mori went public, I filed the lawsuit - and, you know, I think that that…
CONAN: There would have been another alternative, is to go public, as Major Mori did.
Lt. Cmdr. SWIFT: Yes.
CONAN: Here's another e-mail question. This from Johnny in Tulsa, Oklahoma. What evidence did the government allege it had against your client to justify, if possible, these violations? Or did it even reveal to you the evidence it supposedly had to make your client an enemy combatant.
Lt. Cmdr. SWIFT: It has. You know, the difficulty, you know - first is they took the evidence and then changed the definition of combatant. What they said was that anyone who provided material support was now a combatant, and that was how Mr. Hamdan fell in. He hadn't actually fought or shot at anybody but driving is material support. I think that's a grave mistake. It might be a reason for civilian charge, but, you know, United States taxpayers are providing material support to our troops in Iraq, thank God. Does that mean they're combatants? Because if you agree with the definition that we would impose on our enemies, then you are at Stalin's definition of war - that everyone is a legitimate target.
CONAN: Let's get another caller on the line. This is Cesar(ph). Cesar with us from Charleston, South Carolina.
CESAR (Caller): Hi Neal, it's actually Cesar and…
CONAN: Cesar, okay.
CESAR: Good afternoon, Lieutenant Commander Swift. I read your article in Esquire magazine, was deeply impacted by it. I myself am a criminal defense lawyer and, you know, in our career we have to kind of find heroes because we're the brunt of the jokes. And I've got to tell you, from your stance you've really become a modern-day hero of mine.
My question is: What is our solution to the conundrum you found yourself in, or found your client in, in that are we continue - how many people are left in Guantanamo and what's the solution? Do we close Guantanamo and then give them access to the court, or do we set them free? What are our alternatives? And I can take my - take the response off the air.
CONAN: Thanks for the call, Cesar.
Lt. Cmdr. SWIFT: It's a great question. And thank you, Cesar. I think that Guantanamo Bay has ceased to serve it's utility. This is my personal opinion. It was created to be a legal black hole, that is that the law would not penetrate there so they could say there was no law. Several Supreme Court decisions, though - afterwards we've seen the futility of that and it's time to give up the symbol and the strategy. Have the courts have access. Some of the people held in Guantanamo Bay - and this is the hard part - would be legitimately held as prisoners of war because they're members of the Taliban and that war is ongoing.
CONAN: Or members of al-Qaida.
Lt. Cmdr. SWIFT: Well let's - I'm going to define between the two. Start with the Taliban. That's prisoners of war. Legitimate - there's an ongoing battle there. Other members of al-Qaida - I think that al-Qaida, you know - again, my understanding of al-Qaida is that, you know, there's a universal term and then there's what people actually did. And the vast number of people you might label as al-Qaida continued to fight in the same way that they had fought during the Soviet Union's occupation of Afghanistan. That is, now they were fighting against the Northern Alliance, with the Taliban backed, which was a Sunni-backed group.
And so the Sunni Arabs coming were naturally aligning with them, and so they were fighting in a civil war. And those persons would be normally parts of that civil war and held as an auxiliary unit as POWs. The rest of them, and there are elements inside this chaos that were planning criminal attacks.
CONAN: Khalid Shaikh Mohammed and…
Lt. Cmdr. SWIFT: Exactly. They're criminals. And the federal courts to me are the absolute place to dispose of them. As I wrote in my article in "Esquire," I looked at the trial, several that have occurred here. The terrorism trials. And what we have are huge victories for the United States. Not just in that bad men received justice, but we look great in the Arab world, we look great.
CONAN: Trials like the Moussaoui trial.
Lt. Cmdr. SWIFT: Trial like the Moussaoui trial. How is that not an absolute victory for us? Moussaoui, from the people I talk to, is nobody's martyr. No one holds him up as, gee, this is the guy we follow. It all looks kind of foolish and tragic and terrible and only a madman would do these sort of things.
And it holds it up see - because, you know, when a common criminal is held open, the advantage of a public trial instead of some secret tribunal is that the public sees, and this has a world opinion. And I believe that the United States, when you hold it up against these other ideas, will win in any public fair debate of those ideas.
CONAN: The danger, of course, of a public criminal trial is that, for one reason or the other - technicalities, a lot of things - charges get thrown out.
Lt. Cmdr. SWIFT: Yes. If you decided in advance that you're going to win the trial, you have to win it.
CONAN: And are…
Lt. Cmdr. SWIFT: And you're only going to have a military trial so that you can't lose, okay? Why are you having a trial in the first place? That type of a trial becomes apparent to all people who watch it as a political show trial. Because if the outcome is preordained and you can't lose, it's a political show trial.
And that's the way to empower them. Give them a political show trial so they can say, see evil United States. Evil. And why would you give someone like Shaikh Khalid Mohammed that kind of a victory?
CONAN: And would you be the person to say, whoops, sorry, we made a mistake. And Khalid Shaikh Mohammed, we believe you to be guilty of all of these charges. Nevertheless, you're free to go.
Lt. Cmdr. SWIFT: Yeah. In this sense, I think Khalid Shaikh Mohammed would immediately have to face trial some other places as well, because there's a lot of people who want to try them. But I think that the system - I mean what you're arguing for is we can't trust the courts. They're untrustworthy.
The third part of our Constitution has to be scrapped. Can't trust them anymore. And if we've done that in the name of security, we've lost. One of our principal values, the rule of law just went bye-bye. And, you know, the president said at the beginning of this, and this is what I believe, that terrorists can bring down our tallest buildings but they cannot destroy our values.
Now you tell me that if we're going to have a trial where the outcome is preordained, and we can't trust the federal courts to hold a fair trial, and we can't trust them, a federally appointed judge, to, you know, protect the United States' interest and national security, do we still have our values? What happened?
CONAN: We're speaking today with Lieutenant Commander Charles Swift, who spent seven years as a surface Naval warfare officer, then became a judge advocate general and represented Salim Ahmed Hamdan in the celebrated case that went to the Supreme Court. And you're listening to TALK OF THE NATION from NPR News.
And let's see if we can get another caller on the line. This is Rosemary. Rosemary with us from Princeton, New Jersey.
ROSEMARY (Caller): Good afternoon. I just wanted to say that I actually screamed for joy the morning that the Supreme Court handed the decision down on Hamdan, and then went into a total depression. When the Military Commissions Act of 2006 was passed even by representatives from my state who should have…
Lt. Cmdr. SWIFT: You and me both.
(Soundbite of laughter)
ROSEMARY: Yeah. My question to you is, you know, what can we as the people who elect these people who have institutionalized such assaults on our rights do? And by the way, on that same day, and it's not much reported in the press, Posse Comitatus also went by the wayside in the middle of that John Warner bill with a signing statement saying that the president doesn't have to tell the Congress if he wants to take over a state.
And so we, you know, those of us who hear people like you and are very moved by what you've done and very appreciative, what, in your opinion, would be our part in terms of doing anything about this?
Lt. Cmdr. SWIFT: Well, I think that you just did in asking questions and continuing. One of the difficulties is - I'm asked this question and there is -continue to ask questions and not be afraid. You know, I tell the story, you know, my spouse, my wife, right after 9/11 was a flight instructor. And she had a student who was of Moroccan descent; he was French citizen. And he was flying about a month afterwards.
They heard his voice on the radio and he was intercepted in Florida, forced down on a runway. And she marched out there and she said what did he do? Show me the facts. I'm his flight instructor. Where did he violate the law? I insist on knowing and I won't leave until I know. And when people ask me what they can do, I think it's our responsibility as citizens to insist on the facts.
CONAN: Thanks for the call, Rosemary. We appreciate it. We just have a few seconds left with you, Commander Swift. First of all, we know you're leaving the Navy.
Lt. Cmdr. SWIFT: Yes.
CONAN: Unconnected to this, apparently. But also what's going to happen to your client now?
Lt. Cmdr. SWIFT: Well, he's charged again, and we're back in many ways at the same place because of the MCA that Rosemary talked about. And so the war goes on. I mean civil rights and the battle for civil rights is continuous because there will always been a tension between security and civil rights. This is the nature of the document. What I am committed to doing is to make sure that the courts aren't cut out of that battle. Because if they are, it's over.
CONAN: Charles Swift, thanks very much for being with us. Lieutenant Commander Charles Swift represented Salim Ahmed Hamdan. He joins private life shortly as he leaves the United States Navy.
When we come back from a short break, Ask Amy Dickinson. Today she weighs in on the line between flirtation and emotional affairs.
This is the TALK OF THE NATION from NPR News.