Swift: Cageprisoners Interview
Cageprisoners.com
December 14, 2004
He
compared President Bush to the villain of the American Revolution, King
George III. He has sued Rumsfeld and Bush in court for violating the
Geneva Conventions. And he is defending Osama bin Laden’s driver. Enter
Guantanamo military lawyer Lieutenant Commander Charles Swift.
CAGEPRISONERS.COM: Could you start by introducing yourself to our readers?
CHARLES SWIFT: My name is Lieutenant Commander Charlie Swift. I am a judge, attorney and naval officer in the Judge Advocate General’s court in the United States Navy. I have been on active service for the U.S Navy for a little over 17 years now. The first 7 years I spent as surface worker officer after I graduated from the Naval Academy. I left active service in 1991 to attend law school at Seattle University. Then, I returned to active service in 1994 and have been Judge Advocate since then.
CP: How did you land the job as defense counsel at the military tribunals?
CS: I was nominated by the Judge Advocate General of the U.S navy. They put out a call, asking each of the Judge Advocates to nominated people. Judge advocate is a position that goes back to the inception of the military and was created at the time the navy and the army were created. Congress dictated that every military service would have at least one lawyer and those were the Judge Advocates. The Judge Advocate General for the navy nominated me, and then after a series of interviews by Col. Gunn who is the chief counsel for the military commissions, I was selected by him.
CP: What was your reaction when you got the job?
CS: I was surprised. My commanding office was in Jacksonville, Florida when 9/11 happened. When the President issued his presidential order that created military commissions in November 2001, I was approached a couple of weeks after and asked if I was willing to be a defense counsel for it. I was in the middle of a trial at the time, and I off-handedly said "sure, of course". I didn’t even know what a military commission was at that time. I didn’t hear anything about it so I believed that was it, and I was about to go to Graduate School - I was selected for post graduate education beyond Law School and I got a call from the assistant to the Judge Advocate General, asking if I was still willing to do it. And after talking with my spouse and thinking about it for a little while, I said "yes, I am still willing to do it." Shortly thereafter, I was interviewed by Col. Gunn and then offered the position. But to be quite frank, I was on my way to Graduate School and it came out of the blue.
CP: Can you describe the early weeks and months working on the case?
CS: When I first got here, in March 2003, we were told the trials were going to begin almost immediately. That turned out not to be true. The first day I got here was representative of it. I arrived here in the morning, met with Col. Gunn and then at 12 noon, he came back down and told us all to go home. Apparently, we weren’t supposed to be there. I asked if I could go back to Jacksonville Florida, and he said “no, stay in the area, I will call you”. Well I sat by my phone for two and a half weeks! Eventually, I got a call saying "come on in, you have been approved". I had my first meeting with the General Counsel for the Department of Defense. I was told, “thank you for coming; we don’t know if there will ever be commissions, but thanks for being here". It was sort of on and off that summer. We didn’t know whether there would be a commission or not. But we used the time well. I did not know much about military commissions when I arrived. I suspected they would be much like a court marshal. They aren’t. I used that period of time to begin intense study of the United States system and previous commissions in the U.S history and international law and how it would relate to military commissions . I also made important contacts with people in the academic world, NGO's such as the International Commission for the Red Cross, Human Rights First. Also with experts on the Arab world. I didn’t know who I would be representing but I knew I didn’t know much about the Arab world, and so I set about studying the Arab world
CP: Tell us about the military system in place for the Guantanamo detainees? What role has the US Defense Department played in shaping the system? Why do you believe that the detainees held before the military tribunals will not get a fair trial?
CS: Unlike other military commissions in the part, these aren’t per se military they are only military in the sense that they are being staffed by military officers but they were not created by military officers. The military commission instead of being run by the military is being run by the Department of Defense which is the civilian portion of the U.S military. The order was written by the President, who also created them. The next set of orders has been written by the Secretary of Defense and his General Counsel, and the person who is in charge of administering them is a civilian appointed by the Secretary of Defense. So they are basically civilian controlled instruments. Historically, military commissions were about like trying like. I.e. one military tried the other military. That in fact helped with their fairness. When you are in the military and you are trying someone on the other side, you realise what goes around comes around and you can hardly complain when the same thing is done to you or your fellow soldiers or sailors because it is about the understanding we have in our relations. The same understanding did not play into this system. So this was one of the fundamental differences this had from past military commissions.
Why do I believe the detainees will not receive a fair trial? It comes down to several things. The first and most important is the system is set up to protect the Government, not the individual. That is, in every single balance that has gone, absolute discretion is given to the Government. It is better in this system to find an innocent man guilty than hurt the Government. The U.S justice system is founded on the absolute opposite principle, that is, it is better to let ten guilty people go, than punish one innocent man. This system turns that on its head, and it is demonstrated repeatedly in the process. One of my favorite cartoons about it shows the Former Attorney General testifying before Congress. And it says "terrorists should be tried by military commission" and the question is "how do you know they are terrorist until there is a trial?" And he says "why else would they be before military commission?" And the other guy says “isn’t that such an illogic?!” And of course, that is how it is. The first thing the administration says is these people are 'unlawful combatants', that is why we can try them before military commission. Well, another word for 'unlawful combatants' is criminal. So they are presumed guilty. Also instead of the individual having the right to defend himself, this system gives the individual, limited to no right to defend himself. They can be excluded from significant portions of their trial, they are not allowed to defend themselves against the evidence against them, the punishments are indeterminate i.e. they are whatever we feel like giving you, no set statutes on who deserves the death penalty or how long you would get - it is solely discretionary. All of these things violate international law and U.S statute. The system doesn’t adhere to the basic ideas of either international or U.S justice so it is difficult to come up with the idea of how it could be a fair trial. This system is supposedly good enough for everyone except American citizens. If it good enough for everyone else, why isn’t it good enough for American citizens?
CP: Can you tell us about Neal Katyal’s role in challenging the system?
CS: Neal Katyal is my co-counsel in this. Professor Katyal is a former clerk in the Supreme Court. He is a very distinguished graduate of Yale University and currently a professor at Georgetown University. Prior to that, he was special counsel at the Department of Justice advising the National Security Administration. He specializes in Presidential power and international criminal law. Professor Katyal and I are an interesting alliance of people who you would normally think would support the Government. In fact you would be right 90% of the time, or more than that. Neither of us have been advocates for significant changes and both of us have believed in significant executive powers but we also believe that there are limits. Professor Katyal along with Professor Tribe at Harvard wrote an article early on, about the military commissions, questioning their constitutionality. Professor Katyal was one of the first people I made contact with after getting here. He was very helpful. Subsequently, when the landmark case of al Odah and Rasul went before the Supreme Court, Katyal acted as attorney for the brief that all the defense counsel filed in that case. It was a joint effort although I would say Professor Katyal is a brilliant writer and he helped us put our thoughts in the most persuasive manner possible. After that I asked Mr. Katyal to help file on Mr. Hamdan’s behalf. At that time Mr. Hamdan was being held in solitary confinement without charge and the Government said that they would keep him there forever until he decided to plead guilty. We viewed that as a violation of his rights and Professor Katyal, assisted me. When I found myself alone down in Guantanmo Bay before the commission, he went to give his time to assist me down there.
CP: What was the Pentagon’s response to Katyal’s brief (i.e. Supreme Court brief) and what was its impact generally?
CS: Well I would say Katyal's brief is all of our brief. Initially, the Department of Defense questioned whether the defense counsel could do it, and ultimately they gave us permission. I think they were surprised by it. And unfortunately, I cannot say they have been persuaded by it yet. The ideas we have put forward in international law and domestic law and the idea of limited presidential power in the area of justice and what is necessary to really hold a full and fair trial, they opposed and ignored at every turn. The impact was greater for us, in that it obtained some visibility and was essential in bringing forward extremely important issues of both Presidential power and international law to the attention to the courts and the public. The impact, we don’t know ultimately was that is going to be, but I think we were somewhat prophetic on the dangers of something like this military commission and when you abuse power nothing good comes out of it. The newspaper reports seem to echo some of those concerns on an almost daily basis.
CP: Tell us about your client, Salim Ahmad Hamdan, his background and the charges against him? How did he end up in Afghanistan?
CS: Salim is a Yemeni. He is 35 years old now, approximately. He was born in the Hadramount mountain of Yemen. When he was about 12 he lost all of his family and for an Arab that is unusual. He was basically an orphan on the streets. He eventually emigrated to Sana where he worked as a debob driver. Debobs are very tiny little buses, it was much like indentured servitude. Because the debob driver pays the debob owner every morning for the debob. Its one of those professions where you can work like crazy and end up in debt. So he was struggling to live. Eventually he was offered an opportunity to emigrate outside of Yemen. Most Yemenis try desperately to get out of Yemen to find a better job. If you don’t work for the Government it is very hard to make a living. It was not such a good opportunity, but Salim had no family and so he jumped at it. He went with a group of people who were going to Tajikistan. He went on as a driver for a group of people who were going to fight the left overs of the Communist Government there. This was the mid ‘90s. Ultimately the group did not make it to Tajikistan. Many of the people Salim was with ultimately started working with and pledging allegiance to Osama bin Laden and the organization al Qaeda who had moved to Afghanistan in 1995. Salim was not part of military wing, and not a fighter and kinda of the guy left over. He was offered a job. One of the secrets of Osama bin Laden’s success is that like any good politician he set out to set up agriculture and build roads to win favour with the local populace. So he needed workers to work on these civilian projects. So this is what Salim was hired into. Because he knew about cars, as a debob driver, he was his own mechanic and he had hustled his whole life, so he worked in the motor pool. Sometimes he drove, sometimes he worked on the cars. So he worked for bin Laden in this capacity. He is commonly referred to as Osama bin Laden’s driver - that wouldn’t be completely accurate. If I was asked was he Osama bin Laden's driver, would say yes, but not his only driver, just another guy who worked in the motor pool. His whole reason for doing this was very simple - he wanted to earn enough money to buy a vehicle and go back to Yemen. He figured if he could become the owner rather than the driver of the debob, he would earn a living. He had got married and had a family, and he wanted to achieve those things that are common the world over. He just picked a very bad employer. He was living with his family in Afghanistan when 9/11 happened. For Salim, 9/11 was a disaster, like for many millions of people around the world. He tried to flee, he didn’t want to be associated with bin Laden, and he had no desire to fight for him. They got to the border and noted that all the Arab men were being arrested, that is what they heard. Salim figured that if he could sell some his possessions, they could raise enough money to buy airplane tickets, or to buy their way over the border. Historically, that is how you got across the Pakistan border. So he sent his wife ahead, because women and children did not need such big bribes. Then he decided he would go back and sell some of his belongings but he was captured by forces that were hunting bounties for Arabs and eventually sold to the United States. His wife thought he was dead, theirs was a harrowing flight out of Afghanistan, she was 8 months pregnant with their second child, whom he has never seen.
CP: Describe your first meeting with Salim. What was your reaction to your new client? What are your impressions of him now?
CS: When I first met him he had been in solitary for 2 months. He is very polite and he was polite on that day. He was reserved and had difficulty being in solitary. Imagine you hadn’t spoken to anyone in two months, there is a sensory overload there, and that affected him somewhat. I would say from the onset he was friendly and polite and he desperately wanted help. Salim expressed that he had confusion, he kept saying "I had never been in the military so why am I being tried." He didn’t reject the idea that he should be tried, but he expected to be tried in a civilian court. I explained to him, they deemed he didn’t get one. Initially, he co operated with me because he felt he didn’t have a choice, but almost all my clients are like that. So, I set out to win his trust the same way I win my other clients’ trust, and I did this by telling him the truth and acting in a way that won his trust. Also the other thing that was a great benefit, was that I had an extremely good translator. Not just that he was extremely good in Arabic but he was a good and sympathetic man, and he was familiar with Yemen. He was able to reach out to Salim and reach him on a level of humanity. One of the things that had really been re-enforced to me in all of this - that for all of the differences, how similar we all are.
CP: Can you give us insight into the conditions in which he has been held in the past? Has he ever alleged mistreatment during his time in US custody?
CS: In Camp Echo, he was held in a solitary room which was about 15ft x 20ft, held in a steel cell in that room, which was about 5 ft x 10ft. The floor was plate steel and he was surrounded by expanding metal, like a cage. When I met him, it was extremely cold, because of the air conditioning. The guards were in and out of the room and they were in full gear so it probably felt hot to them, and it was hot outside, so they cranked up the air conditioning. He was extremely cold, he was depressed and he could not see the sun shine. When I met him, they didn’t let him exercise outdoors in daylight hours. So he did not see sun. He had limited outdoor exercise in a fairly small cage i.e. a 10ft x 20ft steel cage where he could walk. He was not eating, and lost a significant amount of weight. This largely stemmed out of depression, and he really had no appetite.
CP: What led to him being held in solitary?
CS: For a singular reason, because he was going to be tried by military commissions which is an issue in our case. It is our position that this started his right to a speedy trial. It became clear that regardless of whether the Government had the right to detain him or not, they had moved him to a different category.
CP: Have you been able to bring about any improvement in the conditions under which he is held?
CS: I have, finally. Initially by putting public pressure. They did allow him to exercise in the daytime for part of the week. They put a window in his cell, but he could not see out of it, like a slit window. A lot of that was offset by them removing the guards and putting a camera so that he was not just isolated from other detainees, but all humankind. During that time the biggest thing we did, was visit him constantly.
CP: How often are you able to meet with him and for how long?
CS: Initially there wasn’t a limit. Just practical considerations. We would go down at least twice a month for 3-5 days and meet with him 8 hours a day. Much of it was going over the volume of material of statements the Government said he had made and then a lot of the other time was just talking to him and helping him get through that period. It was just as important to keep his spirits up, as it was to get a legal defense going, otherwise we would not have much to defend, since he wouldn’t be with us mentally. Recently, the judge in the Federal Court case ordered he be returned to the general population and removed out of detention for military commission.
CP: You have been able to visit Salim's family in Yemen - what were your impressions from the meeting? How has his detention affected them?
CS: They are a very loving family. I spent 20 days with them - his wife, children, brother in law, mother in law. I wish my mother in law said as nice things about me as she did about him! I always try to think the best of people but they even exceeded my wildest expectations. Their hospitality was wonderful. I think Salim's family could best be summed up with this story. I went with a female counsel and on the next to last night before we were going to leave, Salim’s mother in law called together all the little girls in the house, there must have been about ten girls. This was a traditional family and I as a male didn’t really see the whole house and family. They bought all the little girls into the room and the mother in law showed them Susan, "she is an attorney, she worked hard in school and studied very hard, see what you can do if you study!" and I thought, these people dream the same dreams that everyone else does, this is not a dream of blood and hate but a dream of hope and love.
CP: Tell us about your first lesson in the misuse of power back in 1980 while at the Naval Academy in Annapolis?
CS: The Naval Academy is a wonderful place to teach you about leadership. The school teaches you at the beginning that this is what it will teach you. I saw a quote that I came to really understand from an upper Crossman, "they have people here I’d follow in to hell and there are people here I like to push in ". What I learnt during plebe year (first year), is that there are many people who use power to feel good about themselves, some of the worst upper classmen who were the most abusive had been abused themselves and used power to cover up their inadequacies. In other words it was done to me so I will do it to you. And I watched and realized it was not good, and didn’t make anything better, it just perpetuated a cycle. It didn’t make one person a better leader. I thought to myself ‘I would never do that.’ And as I have watched in this system, I don’t think there can every be a justification that they have done this so I will do that. Unfortunately, it is a justification I hear all too often when dealing with military commissions in Guantanamo Bay, something I myself don’t believe in.
CP: Several months ago you challenged the make-up of the panel presiding of the tribunals – why did you ask for five of the members to be replaced?
CS: You would think I was better off! I’m not. It appears good but it isn’t. It goes with being able to count. Under commission rules, you must get two thirds of the panel to vote guilty. When there are 5, 4 must vote for guilty, or 2 must vote for not guilty. When there are 4, 3 votes for guilty, and 2 votes for acquittal. When they are 3, you need 2 for guilty and 2 for acquittal. So statistically, all I did is make my odds worse of getting an acquittal. At the time when I challenged them, I thought there would be 5 on the panel. The commission see it, as if it is bad for the accused then that’s the way it is going to go. Every decision seems to come out with "what is best for the Government, that is what will be decided".
CP: What has been the impact of the removal of three of the prosecuting officers on the panel? Has this gone far enough to reduce the bias?
CS: The panel was flawed from the off set, this is not intended as a criticism from any of the officers on it. But, look at it from this standpoint - my wife is a professional pilot and I don’t claim that just because I have seen her fly and heard about flight, it doesn’t make me able to be a pilot. I don’t have the training or experience to do that. And so we cannot look at the complicated subject of international law and claim that any officer can do that. Yet this panel is required to make some of the most difficult and unprecedented legal decisions in modern history, to a situation that even the administration refers to as unprecedented. They have no legal training with which to be able to do this with, with the exception of one retired judge on the panel who is no longer licensed to actively practice U.S law in a Court Marshal.
CP: Tell us about the most recent development, the Robertson ruling earlier this month: what was your reaction to it and what are its implications?
CS: The ruling doesn’t say Hamdan goes home but what it says is that he must have a fair trial, that international law applies, that you cannot have a war and not have the Geneva Convention. That the US is bound by international law and we will follow the Geneva Convention and we will not strip people of its protections. It also says that whatever panel we have, Mr. Hamdan gets to present his defense, it is not presented for him. i.e. he gets to be present throughout and has the right to put on a defense. The judge understands what the administration does not, that it is the individual’s right to put on a defense.
CP: What was Salim's reaction?
CS: He was happy initially, and remains happy that the judge says he deserves a fair trial. But instead of the Government going ahead with the fair trial, because that’s the only way he gets out of Guantanamo, the administration rejected it and was going to appeal it and continue to hold him.
CP: What is the likelihood the Justice Department will win their appeal?
CS: I never handicap these things. I think they will write, I haven’t been surprised by the Supreme Court’s rulings in recent cases, because to me they stand for basic ideas of law and human rights, but others have been shocked by the decisions last summer. So we just have to see.
CP: To what extent do you think it will set the precedent for the other detainees?
CS: It depends. This case has all of the major elements in it. It presents judicial questions on the applicability of the Geneva Convention and other areas of international law and whether the administration is bound to apply them, it presents questions on whether the President can make up his own rules, without statue and can ignore congressional mandate on these questions. It asks as about what are fundamental human rights. Generally speaking, in U.S law, those fundamental questions are answered by the Supreme Court.
CP: What is the current situation? Have the trials come to a halt? What is the next stage for the defense?
CS: Mr. Hamdan's trial has been halted – two trials have already been halted, as they had removed members. They decided, without explanation, that Hamdan and Hicks could be tried without five members but the others would require five members on the panel, so would need to appoint more and they still haven’t done it.
CP: The CSRTs (Combatant Status Review Tribunals) are continuing in defiance of June’s Supreme Court ruling – could you enlighten readers as to how this process works? Do you consider it a fair system?
CS: Well I am not going to talk about it in general but in Mr. Hamdan’s case. Mr. Hamdan went to CSRT, it was in no way fair. Prior to CSRT, Mr. Hamdan asked if I would represent him and this made sense, as I had been working on his case. But the Government would not permit this logical extension. Suddenly Mr. Hamdan was on trial in the CSRT, at the same time. They argued this didn’t relate to his trial by the military commission but they could use anything they got at the CSRT against Mr. Hamdan in his trial. They said if we can use anything you say against you but you don’t get to have your lawyer there. Third, Mr. Hamdan requested I be a witness for him, as I had done significant investigations. Here the tribunal couldn’t really come up with a reason why I shouldn’t be, but after repeated requests of advance notice so I could get down there, they gave me less than 24hrs and would not wait for me to get there, making it impossible for me to attend. Lastly, I wanted to communicate with Mr. Hamdan and after being assured that our communication would not be monitored, they monitored our communications and turned them over to the tribunal. Mr. Hamdan's tribunal was a farce of justice.
CP: What handicaps do you suffer when defending a Guantanamo Bay detainee and how have these affected your work?
CS: Well there is the normal handicap - you have a monstrous crime and an aching desire to punish someone - that is extremely dangerous. Then you remove the protections that prevent injustice in situations where defendants are extremely unpopular. Here we have a situation where the Government called the people in Guntanamno Bay "the worst of the worst", engaged in a continuous propaganda war, setting out their guilt. This makes justice in the best circumstances, difficult. Then far from having the best circumstances, the Government has utilized a system that is bereft of even the most fundamental protections in our justice systems. I cannot see how anything good can come out of it.
CP: You’ve been described as having ‘the most controversial job in one of the most controversial aspects of the war on terror’ – what has been the response of the American public and the military to your fierce and vigorous defense of the “worst of a very bad lot… devoted to killing millions of Americans”?
CS: Certainly conservative talk show hosts have been very negative. But friends of mine have been incredibly positive. I was recently at my 20 year reunion, and one of my class mates had just become Office Command with the United States Corps. He had fought in Iraq and Afghanistan. He said to me, "the rule of law, we invented it, keep going". A couple of those go a long way to drowning out criticism.
CP: Did you ever feel like just dropping the case?
CS: No.
CP: In light of your position and knowledge of Salim and cases like his, how accurate do you believe is Rumsfeld’s claim that the detainees are “among the most dangerous, best-trained vicious killers on the face of the earth”?
CS: I don’t know about the other detainees but I can tell you about Mr. Hamdan. Mr. Hamdan knows about as much about guns as the average kid on the street of Yemen, that is, guns are part of the Yemeni society but I would hardly call him ‘well trained’. In fact I think he is probably most likely to shoot his own foot off then shoot anyone else! ‘Vicious’ is about as far from describing someone who would do housework with his wife. He is one of the most gentle souls I have ever met. One of the most remarkable things is he does not hate, while many others would. I find the Secretary of State’s description so inaccurate in Mr. Hamdans case.
CP: You say that there is no international precedent for the way the Pentagon is using conspiracy charges. Elaborate.
CS: Conspiracy not part of the laws of war, it has never been utilized to punish minor players. It is only used rarely as a theory of liability to hold people at the top who did not get their hands dirty, responsible. Salim is charged with conspiracy. It is unusual as it is unprecedented but not unexpected. At Nuremberg, everyone rejected the idea of conspiracy as an independent crime except for prosecuting the highest levels of the Nazi Party. It was primarily an idea that this would be a theory to convict those who kept their hands clean. But it was never intended to be used on people like Hitler’s gardener and butler. Hitler’s body servants were not considered war criminals, although only if they participated in planning, but the fact that you work for an evil man, does not make you evil yourself. Yet this is the idea that has been extended here. The military commissions have taken on this unprecedented idea. e.g. if you sent money, even if you did not know what it was being used for, if you intended money to be sent to for example, Afghanistan for some charitable purpose, and that money actually was used for terrorism, you are guilty of a crime. Recently the United States argued on this hypothetical in the DC circuit court. The judge asked them "what if a little old lady in Switzerland - we picked Switzerland because the Swiss are famous for their neutrality - were to send some money to an organisation assisting al Qaeda, would she be a combatant." The answer was "yes". I think that is incredibly short sighted.
CP: What do you believe should be done with the detainees?
CS: "The detainees" is way too broad a question. I continually say whoever takes on that position is engaged in incredible over simplification. For Mr. Hamdan, he is a civilian. If he is alleged to have committed a crime of terrorism, he should be tried by a civilian court. If the Military Commission are able to show that he is a combatant, then he should be tried by Court Marshal. And I define a war crime as one committed during a war and that in Mr. Hamdans case means a crime committed between October 7th 2001 and November 24th, when he was captured.
CP: Do you believe Guantanamo is valuable as an intelligence-gathering operation in spite of the fact that much information is extracted under duress?
CS:I have no way of knowing. In Mr. Hamdans case, it played no role in the co operation he gave. But had I been investigating Osama Bin Laden and terrorist activity, if you watch ‘Colombo’, the first thing you do is ask household staff. But if you want to get accurate information, you interview them somewhere where they are comfortable. Mr. Hamdan was never surprised that they wanted to talk to him, and was always willing to co-operate. But in the course of this interrogation, they used coercion and intimidation.
CP: Have you a message for our readers?
CS: I hope your readers will continue to monitor this situation and Mr. Hamdans case. I think his case is extremely important, not just for him and his family, but important for the precedent it will set. And continued support of Mr. Hamdan, not just that it supports and innocent man and his family, supports the rule of law in general. Those are things worth fighting for.
CP: Finally, could you comment on our site?
CS: I knew who you were long before because I read you and I think you do one of the best jobs out there in showing the diversity that is Guantanamo Bay.
CP: Lnt Cmd Swift, thank you for taking the time to speak to us.
December 14, 2004
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CAGEPRISONERS.COM: Could you start by introducing yourself to our readers?
CHARLES SWIFT: My name is Lieutenant Commander Charlie Swift. I am a judge, attorney and naval officer in the Judge Advocate General’s court in the United States Navy. I have been on active service for the U.S Navy for a little over 17 years now. The first 7 years I spent as surface worker officer after I graduated from the Naval Academy. I left active service in 1991 to attend law school at Seattle University. Then, I returned to active service in 1994 and have been Judge Advocate since then.
CP: How did you land the job as defense counsel at the military tribunals?
CS: I was nominated by the Judge Advocate General of the U.S navy. They put out a call, asking each of the Judge Advocates to nominated people. Judge advocate is a position that goes back to the inception of the military and was created at the time the navy and the army were created. Congress dictated that every military service would have at least one lawyer and those were the Judge Advocates. The Judge Advocate General for the navy nominated me, and then after a series of interviews by Col. Gunn who is the chief counsel for the military commissions, I was selected by him.
CP: What was your reaction when you got the job?
CS: I was surprised. My commanding office was in Jacksonville, Florida when 9/11 happened. When the President issued his presidential order that created military commissions in November 2001, I was approached a couple of weeks after and asked if I was willing to be a defense counsel for it. I was in the middle of a trial at the time, and I off-handedly said "sure, of course". I didn’t even know what a military commission was at that time. I didn’t hear anything about it so I believed that was it, and I was about to go to Graduate School - I was selected for post graduate education beyond Law School and I got a call from the assistant to the Judge Advocate General, asking if I was still willing to do it. And after talking with my spouse and thinking about it for a little while, I said "yes, I am still willing to do it." Shortly thereafter, I was interviewed by Col. Gunn and then offered the position. But to be quite frank, I was on my way to Graduate School and it came out of the blue.
CP: Can you describe the early weeks and months working on the case?
CS: When I first got here, in March 2003, we were told the trials were going to begin almost immediately. That turned out not to be true. The first day I got here was representative of it. I arrived here in the morning, met with Col. Gunn and then at 12 noon, he came back down and told us all to go home. Apparently, we weren’t supposed to be there. I asked if I could go back to Jacksonville Florida, and he said “no, stay in the area, I will call you”. Well I sat by my phone for two and a half weeks! Eventually, I got a call saying "come on in, you have been approved". I had my first meeting with the General Counsel for the Department of Defense. I was told, “thank you for coming; we don’t know if there will ever be commissions, but thanks for being here". It was sort of on and off that summer. We didn’t know whether there would be a commission or not. But we used the time well. I did not know much about military commissions when I arrived. I suspected they would be much like a court marshal. They aren’t. I used that period of time to begin intense study of the United States system and previous commissions in the U.S history and international law and how it would relate to military commissions . I also made important contacts with people in the academic world, NGO's such as the International Commission for the Red Cross, Human Rights First. Also with experts on the Arab world. I didn’t know who I would be representing but I knew I didn’t know much about the Arab world, and so I set about studying the Arab world
CP: Tell us about the military system in place for the Guantanamo detainees? What role has the US Defense Department played in shaping the system? Why do you believe that the detainees held before the military tribunals will not get a fair trial?
CS: Unlike other military commissions in the part, these aren’t per se military they are only military in the sense that they are being staffed by military officers but they were not created by military officers. The military commission instead of being run by the military is being run by the Department of Defense which is the civilian portion of the U.S military. The order was written by the President, who also created them. The next set of orders has been written by the Secretary of Defense and his General Counsel, and the person who is in charge of administering them is a civilian appointed by the Secretary of Defense. So they are basically civilian controlled instruments. Historically, military commissions were about like trying like. I.e. one military tried the other military. That in fact helped with their fairness. When you are in the military and you are trying someone on the other side, you realise what goes around comes around and you can hardly complain when the same thing is done to you or your fellow soldiers or sailors because it is about the understanding we have in our relations. The same understanding did not play into this system. So this was one of the fundamental differences this had from past military commissions.
Why do I believe the detainees will not receive a fair trial? It comes down to several things. The first and most important is the system is set up to protect the Government, not the individual. That is, in every single balance that has gone, absolute discretion is given to the Government. It is better in this system to find an innocent man guilty than hurt the Government. The U.S justice system is founded on the absolute opposite principle, that is, it is better to let ten guilty people go, than punish one innocent man. This system turns that on its head, and it is demonstrated repeatedly in the process. One of my favorite cartoons about it shows the Former Attorney General testifying before Congress. And it says "terrorists should be tried by military commission" and the question is "how do you know they are terrorist until there is a trial?" And he says "why else would they be before military commission?" And the other guy says “isn’t that such an illogic?!” And of course, that is how it is. The first thing the administration says is these people are 'unlawful combatants', that is why we can try them before military commission. Well, another word for 'unlawful combatants' is criminal. So they are presumed guilty. Also instead of the individual having the right to defend himself, this system gives the individual, limited to no right to defend himself. They can be excluded from significant portions of their trial, they are not allowed to defend themselves against the evidence against them, the punishments are indeterminate i.e. they are whatever we feel like giving you, no set statutes on who deserves the death penalty or how long you would get - it is solely discretionary. All of these things violate international law and U.S statute. The system doesn’t adhere to the basic ideas of either international or U.S justice so it is difficult to come up with the idea of how it could be a fair trial. This system is supposedly good enough for everyone except American citizens. If it good enough for everyone else, why isn’t it good enough for American citizens?
CP: Can you tell us about Neal Katyal’s role in challenging the system?
CS: Neal Katyal is my co-counsel in this. Professor Katyal is a former clerk in the Supreme Court. He is a very distinguished graduate of Yale University and currently a professor at Georgetown University. Prior to that, he was special counsel at the Department of Justice advising the National Security Administration. He specializes in Presidential power and international criminal law. Professor Katyal and I are an interesting alliance of people who you would normally think would support the Government. In fact you would be right 90% of the time, or more than that. Neither of us have been advocates for significant changes and both of us have believed in significant executive powers but we also believe that there are limits. Professor Katyal along with Professor Tribe at Harvard wrote an article early on, about the military commissions, questioning their constitutionality. Professor Katyal was one of the first people I made contact with after getting here. He was very helpful. Subsequently, when the landmark case of al Odah and Rasul went before the Supreme Court, Katyal acted as attorney for the brief that all the defense counsel filed in that case. It was a joint effort although I would say Professor Katyal is a brilliant writer and he helped us put our thoughts in the most persuasive manner possible. After that I asked Mr. Katyal to help file on Mr. Hamdan’s behalf. At that time Mr. Hamdan was being held in solitary confinement without charge and the Government said that they would keep him there forever until he decided to plead guilty. We viewed that as a violation of his rights and Professor Katyal, assisted me. When I found myself alone down in Guantanmo Bay before the commission, he went to give his time to assist me down there.
CP: What was the Pentagon’s response to Katyal’s brief (i.e. Supreme Court brief) and what was its impact generally?
CS: Well I would say Katyal's brief is all of our brief. Initially, the Department of Defense questioned whether the defense counsel could do it, and ultimately they gave us permission. I think they were surprised by it. And unfortunately, I cannot say they have been persuaded by it yet. The ideas we have put forward in international law and domestic law and the idea of limited presidential power in the area of justice and what is necessary to really hold a full and fair trial, they opposed and ignored at every turn. The impact was greater for us, in that it obtained some visibility and was essential in bringing forward extremely important issues of both Presidential power and international law to the attention to the courts and the public. The impact, we don’t know ultimately was that is going to be, but I think we were somewhat prophetic on the dangers of something like this military commission and when you abuse power nothing good comes out of it. The newspaper reports seem to echo some of those concerns on an almost daily basis.
CP: Tell us about your client, Salim Ahmad Hamdan, his background and the charges against him? How did he end up in Afghanistan?
CS: Salim is a Yemeni. He is 35 years old now, approximately. He was born in the Hadramount mountain of Yemen. When he was about 12 he lost all of his family and for an Arab that is unusual. He was basically an orphan on the streets. He eventually emigrated to Sana where he worked as a debob driver. Debobs are very tiny little buses, it was much like indentured servitude. Because the debob driver pays the debob owner every morning for the debob. Its one of those professions where you can work like crazy and end up in debt. So he was struggling to live. Eventually he was offered an opportunity to emigrate outside of Yemen. Most Yemenis try desperately to get out of Yemen to find a better job. If you don’t work for the Government it is very hard to make a living. It was not such a good opportunity, but Salim had no family and so he jumped at it. He went with a group of people who were going to Tajikistan. He went on as a driver for a group of people who were going to fight the left overs of the Communist Government there. This was the mid ‘90s. Ultimately the group did not make it to Tajikistan. Many of the people Salim was with ultimately started working with and pledging allegiance to Osama bin Laden and the organization al Qaeda who had moved to Afghanistan in 1995. Salim was not part of military wing, and not a fighter and kinda of the guy left over. He was offered a job. One of the secrets of Osama bin Laden’s success is that like any good politician he set out to set up agriculture and build roads to win favour with the local populace. So he needed workers to work on these civilian projects. So this is what Salim was hired into. Because he knew about cars, as a debob driver, he was his own mechanic and he had hustled his whole life, so he worked in the motor pool. Sometimes he drove, sometimes he worked on the cars. So he worked for bin Laden in this capacity. He is commonly referred to as Osama bin Laden’s driver - that wouldn’t be completely accurate. If I was asked was he Osama bin Laden's driver, would say yes, but not his only driver, just another guy who worked in the motor pool. His whole reason for doing this was very simple - he wanted to earn enough money to buy a vehicle and go back to Yemen. He figured if he could become the owner rather than the driver of the debob, he would earn a living. He had got married and had a family, and he wanted to achieve those things that are common the world over. He just picked a very bad employer. He was living with his family in Afghanistan when 9/11 happened. For Salim, 9/11 was a disaster, like for many millions of people around the world. He tried to flee, he didn’t want to be associated with bin Laden, and he had no desire to fight for him. They got to the border and noted that all the Arab men were being arrested, that is what they heard. Salim figured that if he could sell some his possessions, they could raise enough money to buy airplane tickets, or to buy their way over the border. Historically, that is how you got across the Pakistan border. So he sent his wife ahead, because women and children did not need such big bribes. Then he decided he would go back and sell some of his belongings but he was captured by forces that were hunting bounties for Arabs and eventually sold to the United States. His wife thought he was dead, theirs was a harrowing flight out of Afghanistan, she was 8 months pregnant with their second child, whom he has never seen.
CP: Describe your first meeting with Salim. What was your reaction to your new client? What are your impressions of him now?
CS: When I first met him he had been in solitary for 2 months. He is very polite and he was polite on that day. He was reserved and had difficulty being in solitary. Imagine you hadn’t spoken to anyone in two months, there is a sensory overload there, and that affected him somewhat. I would say from the onset he was friendly and polite and he desperately wanted help. Salim expressed that he had confusion, he kept saying "I had never been in the military so why am I being tried." He didn’t reject the idea that he should be tried, but he expected to be tried in a civilian court. I explained to him, they deemed he didn’t get one. Initially, he co operated with me because he felt he didn’t have a choice, but almost all my clients are like that. So, I set out to win his trust the same way I win my other clients’ trust, and I did this by telling him the truth and acting in a way that won his trust. Also the other thing that was a great benefit, was that I had an extremely good translator. Not just that he was extremely good in Arabic but he was a good and sympathetic man, and he was familiar with Yemen. He was able to reach out to Salim and reach him on a level of humanity. One of the things that had really been re-enforced to me in all of this - that for all of the differences, how similar we all are.
CP: Can you give us insight into the conditions in which he has been held in the past? Has he ever alleged mistreatment during his time in US custody?
CS: In Camp Echo, he was held in a solitary room which was about 15ft x 20ft, held in a steel cell in that room, which was about 5 ft x 10ft. The floor was plate steel and he was surrounded by expanding metal, like a cage. When I met him, it was extremely cold, because of the air conditioning. The guards were in and out of the room and they were in full gear so it probably felt hot to them, and it was hot outside, so they cranked up the air conditioning. He was extremely cold, he was depressed and he could not see the sun shine. When I met him, they didn’t let him exercise outdoors in daylight hours. So he did not see sun. He had limited outdoor exercise in a fairly small cage i.e. a 10ft x 20ft steel cage where he could walk. He was not eating, and lost a significant amount of weight. This largely stemmed out of depression, and he really had no appetite.
CP: What led to him being held in solitary?
CS: For a singular reason, because he was going to be tried by military commissions which is an issue in our case. It is our position that this started his right to a speedy trial. It became clear that regardless of whether the Government had the right to detain him or not, they had moved him to a different category.
CP: Have you been able to bring about any improvement in the conditions under which he is held?
CS: I have, finally. Initially by putting public pressure. They did allow him to exercise in the daytime for part of the week. They put a window in his cell, but he could not see out of it, like a slit window. A lot of that was offset by them removing the guards and putting a camera so that he was not just isolated from other detainees, but all humankind. During that time the biggest thing we did, was visit him constantly.
CP: How often are you able to meet with him and for how long?
CS: Initially there wasn’t a limit. Just practical considerations. We would go down at least twice a month for 3-5 days and meet with him 8 hours a day. Much of it was going over the volume of material of statements the Government said he had made and then a lot of the other time was just talking to him and helping him get through that period. It was just as important to keep his spirits up, as it was to get a legal defense going, otherwise we would not have much to defend, since he wouldn’t be with us mentally. Recently, the judge in the Federal Court case ordered he be returned to the general population and removed out of detention for military commission.
CP: You have been able to visit Salim's family in Yemen - what were your impressions from the meeting? How has his detention affected them?
CS: They are a very loving family. I spent 20 days with them - his wife, children, brother in law, mother in law. I wish my mother in law said as nice things about me as she did about him! I always try to think the best of people but they even exceeded my wildest expectations. Their hospitality was wonderful. I think Salim's family could best be summed up with this story. I went with a female counsel and on the next to last night before we were going to leave, Salim’s mother in law called together all the little girls in the house, there must have been about ten girls. This was a traditional family and I as a male didn’t really see the whole house and family. They bought all the little girls into the room and the mother in law showed them Susan, "she is an attorney, she worked hard in school and studied very hard, see what you can do if you study!" and I thought, these people dream the same dreams that everyone else does, this is not a dream of blood and hate but a dream of hope and love.
CP: Tell us about your first lesson in the misuse of power back in 1980 while at the Naval Academy in Annapolis?
CS: The Naval Academy is a wonderful place to teach you about leadership. The school teaches you at the beginning that this is what it will teach you. I saw a quote that I came to really understand from an upper Crossman, "they have people here I’d follow in to hell and there are people here I like to push in ". What I learnt during plebe year (first year), is that there are many people who use power to feel good about themselves, some of the worst upper classmen who were the most abusive had been abused themselves and used power to cover up their inadequacies. In other words it was done to me so I will do it to you. And I watched and realized it was not good, and didn’t make anything better, it just perpetuated a cycle. It didn’t make one person a better leader. I thought to myself ‘I would never do that.’ And as I have watched in this system, I don’t think there can every be a justification that they have done this so I will do that. Unfortunately, it is a justification I hear all too often when dealing with military commissions in Guantanamo Bay, something I myself don’t believe in.
CP: Several months ago you challenged the make-up of the panel presiding of the tribunals – why did you ask for five of the members to be replaced?
CS: You would think I was better off! I’m not. It appears good but it isn’t. It goes with being able to count. Under commission rules, you must get two thirds of the panel to vote guilty. When there are 5, 4 must vote for guilty, or 2 must vote for not guilty. When there are 4, 3 votes for guilty, and 2 votes for acquittal. When they are 3, you need 2 for guilty and 2 for acquittal. So statistically, all I did is make my odds worse of getting an acquittal. At the time when I challenged them, I thought there would be 5 on the panel. The commission see it, as if it is bad for the accused then that’s the way it is going to go. Every decision seems to come out with "what is best for the Government, that is what will be decided".
CP: What has been the impact of the removal of three of the prosecuting officers on the panel? Has this gone far enough to reduce the bias?
CS: The panel was flawed from the off set, this is not intended as a criticism from any of the officers on it. But, look at it from this standpoint - my wife is a professional pilot and I don’t claim that just because I have seen her fly and heard about flight, it doesn’t make me able to be a pilot. I don’t have the training or experience to do that. And so we cannot look at the complicated subject of international law and claim that any officer can do that. Yet this panel is required to make some of the most difficult and unprecedented legal decisions in modern history, to a situation that even the administration refers to as unprecedented. They have no legal training with which to be able to do this with, with the exception of one retired judge on the panel who is no longer licensed to actively practice U.S law in a Court Marshal.
CP: Tell us about the most recent development, the Robertson ruling earlier this month: what was your reaction to it and what are its implications?
CS: The ruling doesn’t say Hamdan goes home but what it says is that he must have a fair trial, that international law applies, that you cannot have a war and not have the Geneva Convention. That the US is bound by international law and we will follow the Geneva Convention and we will not strip people of its protections. It also says that whatever panel we have, Mr. Hamdan gets to present his defense, it is not presented for him. i.e. he gets to be present throughout and has the right to put on a defense. The judge understands what the administration does not, that it is the individual’s right to put on a defense.
CP: What was Salim's reaction?
CS: He was happy initially, and remains happy that the judge says he deserves a fair trial. But instead of the Government going ahead with the fair trial, because that’s the only way he gets out of Guantanamo, the administration rejected it and was going to appeal it and continue to hold him.
CP: What is the likelihood the Justice Department will win their appeal?
CS: I never handicap these things. I think they will write, I haven’t been surprised by the Supreme Court’s rulings in recent cases, because to me they stand for basic ideas of law and human rights, but others have been shocked by the decisions last summer. So we just have to see.
CP: To what extent do you think it will set the precedent for the other detainees?
CS: It depends. This case has all of the major elements in it. It presents judicial questions on the applicability of the Geneva Convention and other areas of international law and whether the administration is bound to apply them, it presents questions on whether the President can make up his own rules, without statue and can ignore congressional mandate on these questions. It asks as about what are fundamental human rights. Generally speaking, in U.S law, those fundamental questions are answered by the Supreme Court.
CP: What is the current situation? Have the trials come to a halt? What is the next stage for the defense?
CS: Mr. Hamdan's trial has been halted – two trials have already been halted, as they had removed members. They decided, without explanation, that Hamdan and Hicks could be tried without five members but the others would require five members on the panel, so would need to appoint more and they still haven’t done it.
CP: The CSRTs (Combatant Status Review Tribunals) are continuing in defiance of June’s Supreme Court ruling – could you enlighten readers as to how this process works? Do you consider it a fair system?
CS: Well I am not going to talk about it in general but in Mr. Hamdan’s case. Mr. Hamdan went to CSRT, it was in no way fair. Prior to CSRT, Mr. Hamdan asked if I would represent him and this made sense, as I had been working on his case. But the Government would not permit this logical extension. Suddenly Mr. Hamdan was on trial in the CSRT, at the same time. They argued this didn’t relate to his trial by the military commission but they could use anything they got at the CSRT against Mr. Hamdan in his trial. They said if we can use anything you say against you but you don’t get to have your lawyer there. Third, Mr. Hamdan requested I be a witness for him, as I had done significant investigations. Here the tribunal couldn’t really come up with a reason why I shouldn’t be, but after repeated requests of advance notice so I could get down there, they gave me less than 24hrs and would not wait for me to get there, making it impossible for me to attend. Lastly, I wanted to communicate with Mr. Hamdan and after being assured that our communication would not be monitored, they monitored our communications and turned them over to the tribunal. Mr. Hamdan's tribunal was a farce of justice.
CP: What handicaps do you suffer when defending a Guantanamo Bay detainee and how have these affected your work?
CS: Well there is the normal handicap - you have a monstrous crime and an aching desire to punish someone - that is extremely dangerous. Then you remove the protections that prevent injustice in situations where defendants are extremely unpopular. Here we have a situation where the Government called the people in Guntanamno Bay "the worst of the worst", engaged in a continuous propaganda war, setting out their guilt. This makes justice in the best circumstances, difficult. Then far from having the best circumstances, the Government has utilized a system that is bereft of even the most fundamental protections in our justice systems. I cannot see how anything good can come out of it.
CP: You’ve been described as having ‘the most controversial job in one of the most controversial aspects of the war on terror’ – what has been the response of the American public and the military to your fierce and vigorous defense of the “worst of a very bad lot… devoted to killing millions of Americans”?
CS: Certainly conservative talk show hosts have been very negative. But friends of mine have been incredibly positive. I was recently at my 20 year reunion, and one of my class mates had just become Office Command with the United States Corps. He had fought in Iraq and Afghanistan. He said to me, "the rule of law, we invented it, keep going". A couple of those go a long way to drowning out criticism.
CP: Did you ever feel like just dropping the case?
CS: No.
CP: In light of your position and knowledge of Salim and cases like his, how accurate do you believe is Rumsfeld’s claim that the detainees are “among the most dangerous, best-trained vicious killers on the face of the earth”?
CS: I don’t know about the other detainees but I can tell you about Mr. Hamdan. Mr. Hamdan knows about as much about guns as the average kid on the street of Yemen, that is, guns are part of the Yemeni society but I would hardly call him ‘well trained’. In fact I think he is probably most likely to shoot his own foot off then shoot anyone else! ‘Vicious’ is about as far from describing someone who would do housework with his wife. He is one of the most gentle souls I have ever met. One of the most remarkable things is he does not hate, while many others would. I find the Secretary of State’s description so inaccurate in Mr. Hamdans case.
CP: You say that there is no international precedent for the way the Pentagon is using conspiracy charges. Elaborate.
CS: Conspiracy not part of the laws of war, it has never been utilized to punish minor players. It is only used rarely as a theory of liability to hold people at the top who did not get their hands dirty, responsible. Salim is charged with conspiracy. It is unusual as it is unprecedented but not unexpected. At Nuremberg, everyone rejected the idea of conspiracy as an independent crime except for prosecuting the highest levels of the Nazi Party. It was primarily an idea that this would be a theory to convict those who kept their hands clean. But it was never intended to be used on people like Hitler’s gardener and butler. Hitler’s body servants were not considered war criminals, although only if they participated in planning, but the fact that you work for an evil man, does not make you evil yourself. Yet this is the idea that has been extended here. The military commissions have taken on this unprecedented idea. e.g. if you sent money, even if you did not know what it was being used for, if you intended money to be sent to for example, Afghanistan for some charitable purpose, and that money actually was used for terrorism, you are guilty of a crime. Recently the United States argued on this hypothetical in the DC circuit court. The judge asked them "what if a little old lady in Switzerland - we picked Switzerland because the Swiss are famous for their neutrality - were to send some money to an organisation assisting al Qaeda, would she be a combatant." The answer was "yes". I think that is incredibly short sighted.
CP: What do you believe should be done with the detainees?
CS: "The detainees" is way too broad a question. I continually say whoever takes on that position is engaged in incredible over simplification. For Mr. Hamdan, he is a civilian. If he is alleged to have committed a crime of terrorism, he should be tried by a civilian court. If the Military Commission are able to show that he is a combatant, then he should be tried by Court Marshal. And I define a war crime as one committed during a war and that in Mr. Hamdans case means a crime committed between October 7th 2001 and November 24th, when he was captured.
CP: Do you believe Guantanamo is valuable as an intelligence-gathering operation in spite of the fact that much information is extracted under duress?
CS:I have no way of knowing. In Mr. Hamdans case, it played no role in the co operation he gave. But had I been investigating Osama Bin Laden and terrorist activity, if you watch ‘Colombo’, the first thing you do is ask household staff. But if you want to get accurate information, you interview them somewhere where they are comfortable. Mr. Hamdan was never surprised that they wanted to talk to him, and was always willing to co-operate. But in the course of this interrogation, they used coercion and intimidation.
CP: Have you a message for our readers?
CS: I hope your readers will continue to monitor this situation and Mr. Hamdans case. I think his case is extremely important, not just for him and his family, but important for the precedent it will set. And continued support of Mr. Hamdan, not just that it supports and innocent man and his family, supports the rule of law in general. Those are things worth fighting for.
CP: Finally, could you comment on our site?
CS: I knew who you were long before because I read you and I think you do one of the best jobs out there in showing the diversity that is Guantanamo Bay.
CP: Lnt Cmd Swift, thank you for taking the time to speak to us.
Get original here.