Eroding detainees rights

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Because of the determined dedication to the highest standards of our rule of law by a military lawyer, Lt. Cmdr. Charles Swift, the case of Hamdan v. Rumsfeld reached, and was decided by, the Supreme Court in June -- instructing the president to remedy the illegality of his military commissions, and the conditions of detainee confinement, at Guantanamo. That military lawyer, two weeks after his victory in this case, was forced by the Pentagon to retire.

Lt. Cmdr. Swift had been assigned to the case of Salim Hamdan, a former driver for Osama bin Laden, in May 2003. This year, in May, speaking at the libertarian, free-market (including of ideas) Cato Institute in Washington, Lt. Cmdr. Swift said he had been commanded by Pentagon superiors to negotiate a guilty plea by Hamdan in 2003. If that failed, his client would no longer be available to Lt. Cmdr. Swift.

Hamdan's unsurprised reaction was: "The guards say there is no law here." And looking at his assigned defender, Hamdan asked: 'What are you even doing here?'" Lt. Cmdr. Swift replied: "I think there is Law. We're going to have to go to the Supreme Court of the United States," adding that even if he were to be forbidden to see his client again, Lt. Cmdr. Swift would still file on his behalf. He did keep seeing his client.

"I had a client," Lt. Cmdr. Swift told National Public Radio on Oct. 12, "who was sitting in solitary confinement, going slowly insane, and every request I had made for relief (from his despair) had fallen on deaf ears."

Lt. Cmdr. Swift and Hamdan's civilian lawyer, constitutional law professor Neal Katyal of Georgetown University, did prove there is law in America, but their victory has been largely skewered by Congress' passage of the Military Commissions Act of 2006 -- signed by the president on Oct. 17 -- which essentially overrules significant sections of the Supreme Court's Hamdan v. Rumsfeld June decision. Lt. Cmdr. Swift told the Los Angeles Times (Oct. 15) that this legislation, giving the president most of what he wanted -- and more -- prevents defendants from getting a fair trial before the military commissions.

Hamdan, still in a Guantanamo cell as an "enemy combatant," will have to wait and see if the Supreme Court agrees to hear appeals to the Military Commissions Act of 2006. If the Court does, Lt. Cmdr. Swift told me, he will again defend Hamdan -- as a civilian lawyer. (Failing to be promoted to commander, Lt. Cmdr. Swift under the Pentagon's up-or-out policy, had to resign.)

"Swift was a no-brainer for promotion," says Eugene Fidell, president of the National Institute of Military Justice. "He brought real credit to the Navy. It's too bad," Mr. Fidell told the Miami Herald (Oct. 8), "that it's unrequited love."

Former Navy General Counsel Alberto Mora told Nina Totenberg of National Public Radio: "You hate to see a guy like this go; it sends a mixed message."

The message seems clear to me -- all the more so when the Los Angeles Times reported on Oct. 15 that "The U.S. Marine Corps had threatened to punish two members of the military legal team representing a terrorism suspect being held at Guantanamo Bay if they continued to speak publicly about reported prisoner abuse ...The order has heightened fears among the military defense lawyers at Guantanamo that their careers will suffer for exposing flaws and injustices in the system ? [They] point to the Navy's failure to promote [Lt. Cmdr.] Charles Swift after he successfully challenged the legitimacy of the Pentagon's war-crimes commissions."

To further highlight Defense Secretary Donald Rumsfeld's devotion to due process in dealing with detainees -- as twice defined by the Supreme Court (Rasul v. Bush and Hamdan v. Rumsfeld) -- the Los Angeles Times adds that "at least three other military defense lawyers for... 10 charged terrorism suspects have also been passed over for promotion in what some consider a subtle reprimand of their vigorous defense of their clients."

Subtle? That's not Mr. Rumsfeld's way. Said Lt. Cmdr. Swift about the Military Commissions Act of 2006 -- celebrated by the president three weeks before the midterm elections -- "A zealous defense is essential to any process that works. What has given the commissions any integrity so far is the ability of defense counsel to raise the case and concerns in all federal forums ... and, when necessary, the media."

But now, since the new Military Commissions Act shuts off habeas-corpus petitions in our federal courts by lawyers for detainees on their conditions of confinement -- where coerced interrogations (that could include torture, but we'll never know) are permitted -- Hamdan was right: There is no law for these detainees.

As for those military lawyers who, like Lt. Cmdr. Swift, feel impelled by the Constitution to go to the media if necessary, they would be wise to write out their resignations as military lawyers before talking to reporters.

President Bush alone cannot be blamed for this desecration of what used to be American values. A majority of Congress, fearful of appearing soft on terrorism, also betrayed the Constitution in the Military Commissions Act of 2006.