Amnesty Magazine
Summer 2004
Friendly Fire
A Military Lawyer Battles the Commissions"My loyalty is to defend the Constitution, not to follow orders," says a lawyer suing Bush, Rumsfeld, et al. over the fundamentally flawed military trials planned for six Guantánamo prisoners.
BY DAVID GOODMAN
F or the first time since World War II a military defense lawyer -- a Navy lieutenant commander -- is suing the government in federal court over a case to which he has been assigned. The lawsuit names as defendants President George Bush and Secretary of Defense Donald Rumsfeld, among others. It calls the military commissions proposed by Bush “an unprecedented, unconstitutional, and dangerously unchecked expansion of executive authority.”
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 In this Pentagon handout photo, U.S. Army military police escort a detainee to his cell in Camp X-Ray, Guantánamo. (© AFP/US Navy/Shane T. McCoy) |
In November 2001, when Bush announced sweeping new rules that allowed suspected terrorists to be detained indefinitely without charge and tried before military commissions, he likely did not expect that his own military would attack the policy. This legal “friendly fire” is one of the most surprising twists in the ongoing struggle over the rights of some 600 detainees being held on the U.S. naval base at Guantánamo Bay, Cuba.
Lt. Cmdr. Charles Swift, who filed the suit on April 7, is defense counsel for Salim Ahmed Hamdan, a 34?year old Yemeni man who is one of six Guantánamo detainees whom Bush designated as subject to trial by military commissions; only two of the six (but not Hamdan) have been charged so far. Swift filed the suit as a “next friend” -- a legal device used when an aggrieved person has no access to a court.
Swift’s lawsuit is a frontal assault on the entire system of military detentions, even going beyond two cases heard by the U.S. Supreme Court in April 2004. One of those suits challenges the Bush administration’s claim that U.S. courts do not have jurisdiction over the detainees because they are not being held on American soil. The second case contests Bush’s right to designate two U.S. citizens as “enemy combatants,” who can be held indefinitely without being charged or receiving a hearing. Swift’s suit, by contrast, challenges the constitutionality of the entire system of military detentions.
Key aspects of that system include: no independent judge, secret trials, indefinite detention without charges, unappealable verdicts, depriving detainees of POW protections by designating them “enemy combatants,” denying detainees any legal representation unless and until they are designated as subject to a commission, and denying detainees the right to know what they are charged with or how long they will be held.
Human rights advocates and civil libertarians have harshly criticized the rules of the military commission system. “[E]verybody deserves a hearing before they are incarcerated,” says Michael Ratner, head of the Center for Constitutional Rights, which is representing a number of Guantánamo detainees. “We don’t believe in executive detentions. They are anathema to a real justice system. This goes back to the Magna Carta, which says you can't be jailed by the king; you are entitled to a trial."
Swift, a graduate of the U.S. Naval Academy and a military attorney for nine years, was appointed counsel for Hamdan in March 2003. In an interview with Amnesty Magazine he discussed why he is challenging the commission system.
Amnesty Magazine: How did you become involved in defending Guantánamo
detainees?
Lt. Cmdr. Charles Swift: I was about to get my masters of law in litigation
when the judge advocate general called and asked if I would do this.
I wouldn’t say I volunteered, but I said I was willing. I did
that without reading the rules [and] I thought the commissions would
look largely like a court martial. But when I took a hard look at it,
this was an administrative proceeding with less due process than what
is afforded to someone who is about to lose their job. ...I was disturbed
by it.
AN: What is missing from these proceedings in terms of due process?
CS: Everything. The basis of the American judicial system is that it
is adversarial. In an adversarial system, we start with the assumption
that two sides are battling equally, and each is represented equally.
That’s not what we have here. Prosecution assets outweigh defense
assets by three or four to one. The “Appointing Authority,”
who is appointed by the Secretary of Defense to conduct the commissions,
functions as both the judge and the prosecutor. He decides who is going
to be charged, what the charges are, who is on the jury, what resources
and discovery the defense gets, and then he rules on the legality of
his own decisions.
In addition to these hurdles, my client’s participation in his trial can be limited because the government may exclude him from parts of his own hearing. Without his participation it will be impossible to confront evidence against him.
[The commission system] gives a show of legitimacy to something that is illegitimate. The commission doesn’t pass muster in three of the four tests of independence and impartiality: that the trial is independent and impartial, and that there is an independent and impartial judicial review process. Except for the independence of the panel, it is basically flawed from the beginning.
That being said, here’s the dilemma for me. There is a Yemeni saying that “You are caught between two fires.” If I fight the system, the end result is that my client may get no due process at all. Or if I accept the system, the failure of the process may doom him to 20 or 30 years in jail, because he has no guarantee of the independence and impartiality of a fair hearing. Which fire do you move toward?
Even if you accept the process, he’s not guaranteed to be released. He can be acquitted, but the Department of Defense can issue an order to continue his confinement. You win, but you don’t get out. It’s an interesting proposition.
AN: Tell me about your client, Salim Ahmed Hamdan.
CS: My client is 34 years old. He is married and has two gorgeous
kids. He originally came from Yemen. In 1995, he was in Afghanistan
en route to Tajikistan. He was going to Tajikistan to assist Muslim
fighters there. This was just after the collapse of the Soviet Union
and there were lots of little wars to gain control. Somewhere along
the road to Tajikistan, he decided he was not going to be a fighter
and would return to Yemen to seek work. On his way back to Yemen he
was offered a job in Afghanistan.
Seventy percent of Yemenis live below the poverty line. With that in mind, when he was told at a guest house in Kandahar that there was a job as a driver available, he was interested. On the way to interview for the job he finds out that the job is driving for Osama bin Laden. He knows bin Laden is a rich man, just the kind of guy you want a job with. This is still 1995. The job was initially to drive agricultural workers to bin Laden’s compound. There was no public transit in that area of Afghanistan, so he would drive and pick up the workers from town, then drive them back at the end of the day. Later he began to drive for Osama bin Laden’s family.
After the Northern Alliance began its offensive with U.S. support in October 2001, he decided to return to Yemen. He had just driven his pregnant wife and kid to the Pakistan border, and he was going to return the vehicle when he was captured by Afghan forces and turned over to American forces.
From the moment I met him, he has maintained his innocence. He denies that he ever joined the Taliban or Al Qaeda. He freely admits that he worked for Osama bin Laden, but he worked for him in his personal capacity, not as a terrorist.
My biggest difficulty, though, is to get this man a hearing. He has asked me repeatedly to ask for a civilian trial. He says, “I am a civilian. Why am I not tried in a civilian court?” He knows the difference between military and civilian.
AN: Your client has been in solitary confinement since December,
when you were appointed his lawyer. Tell us about the conditions.
CS: Camp Echo, where he is being held, is separate and apart from
Camp Delta, the main confinement facility on Guantánamo Bay.
Camp Echo is a series of huts that face inward. Each hut is basically
a 13x15 foot room, subdivided in half with a jail cell in one part and
a table to meet with counsel. The result is that authorities never have
to take him out of there. He says that every day in this jail is like
100 in another jail, because he’s alone. When they take him out,
they shackle him to the floor. Initially this was done in a complete
jacket that locked him almost immobile to the floor. He was chained
down to the chair. We made progress: First we negotiated to get his
hands free; then he was chained by the waist; now he is chained by the
ankle. I am not afraid of being harmed by my client.
AN: Do these conditions violate his human rights?
CS: I think prolonged solitary confinement is an abuse of anyone’s
human rights. Solitary is used as punishment in most Western jail systems.
You have no communication with other prisoners. For the first 70 days
my client was there, the only reading material he had was the Koran.
After repeated protest by me, he was given another book -- about medical
oddities of the Middle East. So I guess his reading material is now
about two?headed babies of the Middle East.
Can that have an effect? Absolutely. There is significant medical literature that solitary confinement is one of the most mentally damaging forms of punishment. This is especially true for persons from the Arab world because this is a social culture. You are literally never alone in Yemeni culture.
AN: Is this torture?
CS: [Pauses] That’s a word that is used for political purposes.
What is my concern for my client and what is his concern? His mental
health. He has been placed in solitary confinement. Does he know when
that will end? No. Does he know when there will be charges? No. Does
he know there will ever be charges? No. He has only total uncertainty
about his future. Can that drive a man insane? Yes. Has that been cited
by the
International Committee of the Red Cross as a major issue at Guantánamo Bay? Yes. Can that cause lasting mental damage, as psychiatrists have written? Yes. If others choose to call that torture, so be it. To me, those labels don’t matter. The question is: What are the realities of it?
AN: Are the confessions coming out of Guantánamo detainees
reliable?
CS: There are posters everywhere around Guantánamo Bay that say,
“Freedom through cooperation.” You get better treatment,
better food, more privacy if you cooperate. So now, lying has a natural
benefit. There’s no harm to lying. You gain by “confessing.”
…It’s jailhouse stooges taken to the nth degree. You don’t
even feel the moral prohibition against hurting someone else by lying.
Can we put stock in this testimony in the way that we normally do? I
don’t think so.
AN: What is at stake in the fight over the rights of Guantánamo
detainees?
CS: America is a mix of every people in world. …Our territory
is not homogenous. What we are fixed by are our ideals. That’s
basically what America is. We are a set of principles. If we lose sight
of those principles, then we lose sight of America.
There is no extraordinary period of time that says you abandon your principles. A fundamental American principle is an independent judicial branch that makes fair and impartial decisions. And we should not abandon that.
AN: Has your experience on Guantánamo shaken your faith in
the American system?
CS: Not yet. I’m an idealistic pragmatist. I continue to believe
that instead of just being critical, my job is to get in here and change
it. Y But representing my clients here – it’s pretty difficult.
I don’t know that winning a trial will win him anything. This
is unparalleled for me.
How we deal with crises is what defines us. We are defined as a country in times like this. Do you know who defended the British in the Boston Massacre? John Adams, who later became president. Firing into a crowd in Boston and killing five people was a pretty significant act. Eight British soldiers and their commanding officer were put on trial, but they couldn’t get anyone to defend them. Finally Adams agreed to do it. All but two were acquitted, and the others …received a branding on the thumb. Adams later called his defending them the greatest service he’ done for his country. He said that to convict those people under these conditions would have been as grave a stain on our reputation as the witchcraft trials of Salem.
AN: Will the Guantánamo military commissions be fatally flawed?
CS: That’s impossible for me to say. It’s not off to
a good beginning. It lacks the guarantees of independence and impartiality
and the full ability to try cases. But I am also mindful that it is
only a beginning. Public insistence on the maintenance of justice --
and federal and judicial insistence on that, and the insistence of military
officials themselves on the maintenance of justice and on fair process
-- may yet win the day. I haven’t given up.
AN: Why is this being done?
CS: I can’t for the life of me figure that out. I can’t
see why courts martial wouldn’t solve this problem, if it is in
fact a military crime. Trying terrorists in court hasn’t been
a problem that courts couldn’t handle in the last 25 years. The
problem has been catching them.
AN: As a loyal soldier, how does it feel to be challenging the military
and the president in the way you are doing?
CS: Questioning the system is the height of loyalty. The American system
differs from other systems in that my loyalty is to defend the Constitution,
not to follow orders. Our loyalty is to fairness.
Where we find ourselves today is that the executive branch is both making all the calls and making all the rules. Our Constitution didn’t have faith in that. It divided that responsibility among three groups: the legislature to pass the laws for the country, the executive to enforce them, and the judiciary to apply them. This process of military commissions violates those principles.
I fully share with the president the idea that terrorists must never be allowed to bring down our love of freedom. I don’t think terrorists ever could. But if we’re not careful, maybe we will do it ourselves.
David Goodman is the author, with Amy Goodman, of The Exception to the Rulers: Exposing Oily Politicians, War Profiteers, and the Media That Love Them (Hypersion).
This article appeared in Amnesty Magazine,the quarterly magazine of Amnesty International USA. For copies of the original article, the full magazine, subscriptions ($12/yr), or membership to AIUSA including subscription ($25/yr) please: email now@aiusa.org; write to Amnesty Magazine, 322 8th Ave. New York, NY 10001; or call 212.633.4246. Text and photographs are copyright protected.
