Transcript - August 3, 2007
BRANCACCIO: Welcome to NOW.
About four years ago, a Navy Lieutenant Commander and military lawyer named Charles Swift received an unusual—and controversial—assignment.
He was given orders by his superiors to defend a detainee being held at the American military prison in Guantanamo Bay, Cuba. His new client, Salim Ahmed Hamdan, was alleged to have served as a driver for Osama Bin Laden. But Lieutenant Commander Swift's assignment came with a catch: he would only be allowed to meet with Hamdan if Hamdan agreed to plead guilty.
That was Charles Swift's introduction to the bush administration's uncharted, extralegal procedures for handling prisoners of the war on terror, many of whom remain in Guantanamo. Lieutenant Commander Swift's client has since won a string of key victories in American courts- including the highest one. And now, all charges against Hamdan have been dismissed by a military judge.
Charles swift on the other hand, has been passed over for promotion twice and is retiring from the Navy.
Charles Swift, thanks for joining us.
SWIFT: You're welcome. Glad to be here.
BRANCACCIO: So up and coming Navy lawyer. You get detailed to represent a Guantanamo detainee with direct links to Osama bin Laden. How did you draw that short straw?
SWIFT: I got a call from the detail. It was a friend of mine, or at least was a friend of mine back then. And—John calls up and he says, "Hey, the Judge Advocate General would like to nominate you to defend some detainees down in Guantanamo Bay." And he said, "But don't worry. It's not gonna take long. Three weeks absolute. I don't even think it'll interfere with your orders."
I did have the caveat, I—I mentioned to the judge advocate general's office, I said, "You know, I'm not known for pleading people guilty. You sure I'm the right guy for this job?" They said, "Yes, you're the right guy." I said, "Okay."
BRANCACCIO: Give me a sense of what your expectations were for the fairness of the process that you were getting into and also when you started getting really worried.
SWIFT: Well, my expectations on the day before I arrived in Washington, DC, was that it would basically be military justice as I understood and knew what military justice was. That was until I got to Washington, DC, and they handed me the rules.
You didn't necessarily get to see the evidence. They could admit evidence that had been obtained by either coercion or torture. The accused didn't even have to be in the trial at the time. There was no right to confront anyone who was testifying. Oh, and one other thing, they said there was absolutely no right to appeal to the federal courts. So we took a look at this and went, "Well, this process is not fair."
BRANCACCIO: The process had been set in motion by a military order issued by President Bush in November 2001... establishing special military commissions to try people captured in the war on terror.
SWIFT: We'd been told that government intended the first few trials at least to be guilty pleas. And the prosecutor ensured that that's what would happen by adding the following caveat. Mr. Hamdan would only have access or I would only have access, I could only see him so long as we were arranging a guilty plea. If we weren't working on the guilty plea, then there would be no need for him to see his attorney.
BRANCACCIO: You could only see your client if you're going to set up a guilty plea.
SWIFT: Guilty plea, right. And if we're not working on the guilty plea, then he can't see us. And he's been moved into isolation.
BRANCACCIO: The government says there was no pressure for a guilty plea. But swift showed us this 2003 memo from the chief prosecutor... informing Swift that his "...access [to Hamdan] shall continue so long as we are engaged in pretrial negotiations." Swift says, that could only mean a guilty plea.
SWIFT: I didn't think that ethically I could go down and basically present someone were the only choice they have is to plead guilty or rot in solitary confinement for the rest of their life.
BRANCACCIO: Even though this supposedly, this person you were representing, Mr. Hamdan, was the worst of the worst, that's who we were told were in Guantanamo.
SWIFT: Yes. Well, you know, I always believed that the worst of the worst is determined after the trial, not before it. That, you know, if we've already decided that this person is the worst of the worst, then the trial is sort of irrelevant. And so (a) I didn't accept that. (b) one of the reasons that Hamdan's case appealed to me was when I took a look at him, he did not appear to me to be among the worst of the worst.
BRANCACCIO: Give me a sense of just who you were defending. It seems not in dispute that this guy, Mr. Hamdan, was Osama bin Laden's driver.
SWIFT: First off, who Salim is. He's a guy with a fourth grade education, about the equivalent of that. He was an orphan. So as a child, he grew up in the Hadramout of Yemen, which is about as rural and a wild place as there is left on the planet. After his parents died, he immigrated to the cities. He was basically homeless and lived on the street.
The profession that he developed was to drive—debobs, which are little buses in Yemen. They're tiny. Look almost like clown cars. In this profession you have to pay for the vehicle at the beginning of the day to the owner. So you can actually end up owing money after working all day.
BRANCACCIO: Well, it sounds like share cropping or something—
SWIFT: It's the share cropping equivalent of the taxi driver. It's—it's tough.
BRANCACCIO: So near as you can tell, did he fall in with the al-Qaeda crowd because of ideology?
SWIFT: No. He fell in with these guys because it was a paying job. Osama bin Laden paid him 150 bucks a month. Nobody had. You know, to him that was a fortune. And it allowed him to do something that he never would have been able to do and that was to have a family.
BRANCACCIO: Had you heard allegations that as part of the—his driver role, he was picking up arms or shooting at Americans?
SWIFT: No. There's never been anything that he's ever shot an American. That was one of the things that hit me from a legal point. This guy—there's no charge that he ever shot an American, that he was ever part or played a material role in 9/11 or any other terrorist attack. His sin was being there.
BRANCACCIO: The Bush Administration says that Hamdan was more than just a driver... alleging that he also served as a bodyguard for bin laden and transported weapons for Al Qaeda.
After 9/11, Hamdan was captured while attempting to flee Afghanistan... and transferred to Guantanamo bay in the spring of 2002.
SWIFT: It took me a while to get there. A lot longer than I had originally anticipated because they'd forgotten an important part. Mr. Hamdan spoke only Arabic. And my Arabic was about 25 words. And they hadn't found any translators. So they had no translator for me. So—yes, we want him to plead guilty. We'd like him to do this in 30 days, but we don't have a translator. So after—
BRANCACCIO: So how are you gonna do it? In sign language?
SWIFT: Yeah, so after two or three weeks I asked them how that was going. And they admitted it wasn't going very well. So I said, "Well, would it help if I found one?"
BRANCACCIO: So ultimately your client, Mr. Hamdan, decides he's not gonna plead guilty.
SWIFT: That's right.
BRANCACCIO: And he is open to your idea of taking this to higher authorities.
SWIFT: Yes. That—that was the, you know, there's a seminal moment in that. You know, I explained my whole theor—our theories of the Geneva Convention. And he's not saying much. And I continue to try and talk. Maybe we'll, you know, if we just go over it four more times the sales pitch will get better. And what's been bothering him in all this is he stops and he says, you know, "The guards say there's no law here." Now, the guards, they've been his world for two years. And I said, "Salim, I don't believe that. I don't believe that there's anywhere in the world there isn't law. The thing is we're gonna have to prove it this time. We're gonna have to go to the Supreme Court and fight and win the law."
BRANCACCIO: Swift filed a petition for his client's case to be heard in federal court - a writ of habeas corpus. Hamdan v. Rumsfeld attacked the legitimacy of the military commissions. After winding its way through the federal courts, the Supreme Court agreed to hear the case.
BRANCACCIO: In a nutshell, what is the question that you wanted the U.S. Supreme Court to decide?
SWIFT: We wanted the Supreme Court to decide whether the president had the power to unilaterally just set up a justice system that departed from both established international law and military law. In other words, the president said, "I'm the president. This is a new war, and I get to make up all the rules." He took it on himself the power of being the legislature, the power of being a judiciary, and the power of being an executive. He became a king in this small sphere.
BRANCACCIO: Even though you're in uniform, you work for the U.S. Navy and the president that you're questioning his authority on this issue is your commander in chief.
SWIFT: Sure. The oath I swear is to defend the Constitution of the United States against all enemies, foreign or domestic, it's not an oath of loyalty to the president. You don't combine the powers. No matter how good the man, the Founding Fathers' brilliance was they understood that if the powers are all—are combined, nothing good will come of it.
And, you know, it—I think the brilliance of the Constitution that it is a document for war and peace, a document to maintain the balance of government so that knowing that we would be involved in war, we would emerge from the war the same country as went into the war. We wouldn't lose what we were fighting for during the fight.
BRANCACCIO: The Supreme Court agreed with Swift's arguments. He and Georgetown law professor Neal Katyal, with nearly zero experience arguing at that level, won a stunning victory in June of 2006.
SWIFT: All we have wanted is a fair trial, and we thank the Supreme Court for making sure that Mr. Hamdan will get one.
BRANCACCIO: The decision has been called ones the most serious rebukes of executive-branch power post-9/11.
What does it say in essence? That the Bush administration doesn't have the authority to freelance—
BRANCACCIO:—justice in Guantanamo?
SWIFT: Exactly. One, what we said in the beginning, the president has to follow the uniform code of military justice. He's not free to take statutes passed by Congress and say, "I'm the commander in chief, I don't have to follow them. I'm above the law." Two, the president has to comply with international law. That is, he had to comply with the Geneva Conventions.
You would not try somebody without a regularly constituted court that afforded all of the protections considered necessary for justice by civilized people. And unfortunately, you know, the commissions fell fall short of what we considered necessary by civilized people.
They really had revived things that one thought was dead. You know, there was they made the argument, of course, that you could put in a confession that was obtained by making somebody—by drowning somebody. That's what water-boarding is. It's drowning somebody. The last time we did that was during witchcraft trials.
BRANCACCIO: Just minutes after the court's decision, the President said he would work with congress to pass legislation creating new commissions.
With the midterm elections just weeks away, the debate over the bill was heated.
REP. NADLER (D-NY): The President wants to exist in a law-free zone. He does not want to be bound by the law of war or our treaty obligations. He does not want to answer to the Constitution, to the Congress or to the courts.
REP. BOEHNER (R-OH): The question is, will my Democrat friends work with Republicans to give the President the tools he needs to continue to stop terrorist attacks before they happen, or will they vote to force him to fight the terrorists with one arm tied behind his back?
BRANCACCIO: In the end, the President and the Republican congress prevailed... drawing the support of forty-four democrats to pass the Military Commissions Act of 2006.
PRESIDENT BUSH: These military commissions will provide a fair trial, in which the accused are presumed innocent, have access to an attorney, and can hear all the evidence against them. These military commissions are lawful, they are fair, and they are necessary.
BRANCACCIO: But in the new law, many of the rules under the old commissions remained intact, according to Swift... for instance, evidence could still be obtained through coercion. And the right to appeal a case in federal court was strictly limited.
SWIFT: It had so many inherent flaws in it. It contradicts itself repeatedly. It did not listen at all to what Justice Kennedy had warned. He said, you know, if you're going to make these kind of sweeping changes, they should be made carefully, deliberately, and in the quiet of peace, not the rush of war.
BRANCACCIO: Hamdan was charged again under the new military commissions act, or "MCA," and was faced with a whole new legal limbo.
SWIFT: Government assumes that he's an unlawful combatant. Now, the MCA actually differentiated. Well, you—no, he has never been found to be an unlawful combatant. He's only been found to be a combatant. Judge agrees with us and dismisses the case.
BRANCACCIO: So the case against your client, against Mr. Hamdan, gets thrown out.
SWIFT: Right. Here's the problem. The government wants to appeal. The problem is they didn't set up the court. So now the case is thrown out. They don't have a court to take it to. So they'll put together the court after, you know, specifically designed for the issue that's coming up to it. Then the secretary of defense and the president will pick the judges who will review those judges. At best it looks horrible. It simply has departed the justice system. And those who committed war crimes on Al Qaeda's side should be held accountable.
BRANCACCIO: Well, how do we do it, though?
SWIFT: There is a solution here. And it's not to eliminate the courts, it's to empower them. I have faith in both the defense—the Justice Department and military prosecutors that they'll get the goods. Now, it—it seems to think that we have no faith in judges, no faith in juries, and no faith in, you know, the presentation, no faith in the system as set up to be able to find the truth.
BRANCACCIO: But we are fighting actual terrorists who are plotting bad things, continuing to be a problem. If we're trying to win this war, is it the better course of action to vigorously defend the rights of these people on Guantanamo? Or do we really have to crack down on these people? You must get asked this question all the time.
SWIFT: I do. I do. And although not by a lot of people in the military. And the reason is in the military we all studied the same set of books. One of the people we read was Mao.
BRANCACCIO: Chairman Mao.
SWIFT: Chairman Mao, absolutely, "The Little Red Book." It tells you how to fight a guerilla war. In an insurgency you get the other side to crack down. That is, to make reprisals, to take severe actions against the village, the people, whatever. Kicking in all the doors, abolishing the rule of law, arresting everyone, no process. Helps recruitment.
BRANCACCIO: Helps recruitment of the enemy.
SWIFT: Exactly. Why would you give a Sheikh Khalid Mohammad a legitimate argument?
BRANCACCIO: He's supposedly the worst of the worst in Guantanamo.
BRANCACCIO: The guy captured with the wife-beater t-shirt on, the mastermind of 9/11, allegedly.
SWIFT: Why would you introduce a coerced confession in his trial? Why? That gives him legitimacy. Al-Qaeda doesn't have to win a battle. They don't have to win a skirmish. They just have to keep fighting. As long as they're there we haven't won. The only long term we have is to prevent them from recruiting. And you have to ask yourself is Guantanamo helping to keep them from recruiting or is it helping them recruit?
BRANCACCIO: Debate in the Bush administration this summer, I would like to hear how you come down on this about actually just shutting down Guantanamo.
SWIFT: The Supreme Court has said quite often that not only must a court be fair, it must appear to be fair. And the Guantanamo tribunals are not just for America. They're for the world. And Guantanamo Bay is so tainted that the name now evokes complete reactions. We're not even focusing on what's happening anymore. Just the name. It's time to start afresh.
BRANCACCIO: There are other military men who are speaking out against Guantanamo in the news... including the President's former Secretary of State, Colin Powell, who had this to say on NBC's "Meet the Press":
GEN. COLIN POWELL: If it was up to me, I would close Guantanamo not tomorrow, but this afternoon. I'd close it. And I would not let any of those people go. I would simply move them to the United States and put them into our federal legal system. The concern was, "Well, then they'll have access to lawyers, then they'll have access to writs of habeas corpus." So what? Let them. Isn't that what our system's all about? And, by the way, America, unfortunately, has two million people in jail all of whom had lawyers and access to writs of habeas corpus.
SWIFT: Colin Powell said this not because he's a liberal, not because, you know, he somehow went to a set of ACLU meetings or something like that. Colin Powell said it because he wants to win. The reason was he understands that it's doing more damage than good and understands that our legal system, while imperfect, is the best answer for what do we do with these people once we catch them.
BRANCACCIO: You did what you say you thought was right. You took a pretty aggressive stance in representing this Guantanamo detainee. It had to be a career risk. And now what? You've been passed over for promotion?
SWIFT: I've been passed over and I'll be retiring and I'll be teaching at Emory this fall, which is a terrific opportunity I'm really happy for.
BRANCACCIO: Do you see the promotion issue and the decision to retire as connected with your efforts to defend this Guantanamo detainee?
SWIFT: I don't go there. I never have. Navy gave me the greatest gift in the world. It gave me a chance to make a difference. I think that's what every citizen, every soldier, every sailor should ascribe to. It's certainly what I ascribed to. I had a chance to make a difference. And I'll be profoundly grateful for it for the rest of my life.
BRANCACCIO: Swift's last day was this week. He will continue to represent Hamdan... who remains in Guantanamo with no day in court in sight.
SWIFT: One of the things that Hamdan made me come to realize is what the United States is. We're not really a geographic area. We've changed our borders continuously throughout the 200 years. We're certainly not one people. We're as diverse a country as there is in the world. We're an idea. That's what we are. We're an idea. And what's wrong with Guantanamo is that it takes away from that idea to try and make a place a little safer. And I argue it doesn't make the place any safer. And it certainly hurts the idea.
BRANCACCIO: And that's it for NOW. I'm David Brancaccio. We'll see you next week.