Charles Swift

Unlawful or Lawful; Detainees at Guantanamo Bay

By: Sam Sheffield

Posted: 2/4/08

There's something to be said of lawyers who represent the underdog, who take on the really difficult cases.

Former?Lt.?Commander Charles Swift became one of those lawyers when he was assigned to the case of Salim Ahmed Hamdan, a prisoner at Guantanamo Bay.

Swift gave a lecture on "Guantanamo Bay and Its Implications for the Rule of Law" to a packed house at Rockhurst University last Wednesday.

Swift was ordered to take the case, but he said he also chose to do it.

"Someone should," Swift said. "… Originally I looked at it in that I didn't expect I would be representing anyone … I expected Sheikh Khalid Mohammed, I expected a Moussawi defense."

Hamdan said he expected to represent a "real" terrorist, not Hamdan, who was captured by Afghan forces in late 2001, with possession of a weapon. Hamdan was handed over to U.S. forces and sent to the U.S. Naval Base at Guantanamo Bay, Cuba in 2002.

He was accused of conspiracy, transporting weapons to the Al-Farouq Al Qaeda terrorist training camp, and also serving as Osama bin Laden's personal driver before and after the Sept. 11 attacks.

Swift explained Hamdan's background. He was born to poverty in Yemen in 1970. His only known skill was his ability to service engines. He had intermittent jobs as a driver in the bustling streets of Sanaa, Yemen's capital, according to Swift. He eventually found a job that paid more money in a month than he had ever earned in his lifetime in Yemen. He became Osama bin Laden's personal chauffeur. He eventually earned enough money to get married and begin a family, Swift said.

Swift was a Naval Judge Advocate General (Jag) officer, and had had an impressive career representing men facing martial. He was asked to take Hamdan's case in trial by military commission.

The former Lt. Commander said military commissions, or tribunals, which were created to try members of enemy forces during times of war, are different in a few ways from any conventional civilian or military, criminal or civil trials.

For instance, the defendant is not allowed self-representation, not because of lack of knowledge of law, Swift said, "but that it is not lawful for them to be there. … It was understood that they would be excluded from large portions of the trial, that they would not see all the evidence against them … and evidence could be obtained by either physical or mental coercion."

That brought about the question of whether the detainees at Guantanamo should be given the rights enemy combatants are given as according to the Geneva Convention. The Bush administration said no, that Al Qaeda members are not lawful enemy combatants because they pledge no allegiance to a foreign government, and they are not part of a regular armed force and should therefore not be treated as combatants as put down by the guidelines of the Geneva Convention.

Lt. Commander Swift said he thought otherwise, and in November 2004, he decided to bring Hamdan's case before the District of Columbia's District Court. They had some success when the court found the Commission violated the Uniform Code of Military Justice.

But President Bush appealed the decision, and, in July 2005, the U.S. Court of Appeals for the District of Columbia overturned Hamdan's appeal, saying the Geneva Convention does not apply to members of Al Qaeda.

In 2006, Swift, along with Neal Katyal, professor of law at Georgetown University, and the Seattle, Wash. law firm of Perkins Coie brought Hamdan's case before the U.S. Supreme Court in the case of Hamdan v. Rumsfeld.

The court agreed with Swift, and said President Bush did not have the authority to set up military commissions at Guantanamo Bay, because they violate the Uniform Code of Military Justice and the Geneva Convention.

On Oct. 17, 2006, President Bush signed the Military Commissions Act, authorizing military commissions for violations of the law of war. It severely limited a captive's access to Habeas corpus, which allows a person to seek relief from unlawful detention.

The men at Guantanamo Bay though, were confirmed as lawful enemy combatants after the Combatant Status Review Tribunals. Now they could not be tried in military commissions because the Military Commissions Act only gave authority to try unlawful enemy combatants.

Charges against Hamdan were dropped on June 4, 2007 due to his new status as a lawful enemy combatant.

Swift said there are many at Guantanamo Bay who deserve justice, and deserve to be there.

"If [we] dispense the justice in this system, if [we] do not admit the mistakes and wrong-doings, [we] will make martyrs out of them," Swift said. "The worst scenario is to take a Sheikh Khalid Mohammed to a military commission, where he can claim the evidence of his torture was suppressed, or he can claim the mantle-hood of martyrdom."

Swift said a trial system "worthy of America" would ultimately provide justice.

ssheffield@unews.com