Washington-From the beginning, the U.S. military commissions established to try enemy combatants held at Guant�namo Bay had an “Alice in Wonderland” quality, said Navy Lieutenant Commander Charles Swift. “Execution now. Trial later,” he said, paraphrasing the queen’s commands.
Despite that quality, Swift, one of five judge advocate general lawyers assigned to represent the first round of commission defendants, determinedly stepped through this looking glass, defying skepticism at home and abroad that he and his colleagues would do more than a perfunctory job.
In just two years, Swift’s odyssey has taken him to Guant�namo Bay, where his Yemeni client, Salim Hamdan, is being held; to Yemen, where he spent a month with Hamdan’s family; to clandestine interviews with former al-Queda members in the back seats of cars; to the halls of Congress where he testified about the “stacked deck” in military commissions; and now to the U.S. Supreme Court, which will hear his challenge to the constitutionality of the military commissions. Hamdan v. Rumsfeld, No. 05-184.
Shortly after being tapped for the defense, Swift, a graduate of the U.S. Naval Academy and Seattle University School of Law, and his fellow defense lawyer, Navy Lieutenant Commander Philip Sundel, identified five tasks crucial to their new jobs: media understanding; federal challenge to the commission process; involvement of nongovernmental organizations, such as the American Civil Liberties Union; and recruitment of “the best and brightest minds” in constitutional law, because, Swift said, “We looked at the legal landscape and everyone had lost in the past. We knew we were taking on a significant challenge.”
The government, he recalled, was saying basically that everyone held in Guant�namo was a bad person and had been captured on the battlefield fighting against the United States.
“Neither of those statements is true,” said Swift. “My view and the view of my colleagues was we had to turn the view that by being against this process, you were against the military. The only way to do that was to put a public face on it. We also didn’t think our clients could get a fair trial until that started to happen.”
Through media interviews and congressional testimony, Swift moved to create the “public face.” At the same time, he pushed his constitutional challenge-winning in district court and losing on appeal-and opened his defense of Hamdan as his military tribunal, the first since World War II, began. Hamdan, who worked as a driver for Osama bin Laden, claims he was never a terrorist and was fleeing Afghanistan when captured.
Swift is very much a trial lawyer, said Neal Katyal of Georgetown University Law Center, Hamdan’s main counsel in the Supreme Court.
“But behind the trial lawyer fa�ade is someone with an incredibly sophisticated grasp of deep constitutional issues. The prejudice in American law schools today is military lawyers are backwater lawyers and can’t think outside of military rules and regulations,” Katyal said. “I may have had a little of that prejudice before starting to work with these folks. Charlie just disabused me of that notion.”
Perkins Coie partner Benjamin Sharp, whose Seattle-based firm has a team of lawyers helping with the Hamdan case, agreed, adding, “It’s a thrill to find a dedicated, committed lawyer who is acting on principle even though it may jeopardize his military standing.”
Swift said that Katyal, Perkins Coie, the American Civil Liberties Union, Human Rights Watch, his judge advocate general colleagues and others have made “incredible contributions” to an effort that he described as “all-consuming in a way that I would never have guessed.
“My father says it was the case I was born to take,” Swift recalled. “He said it has my two propensities: to both believe absolutely in country and military and, at the same time, to question everything.”
A Department of Justice spokesman had “no comment” for this story.