Was Lt. Cmdr. Charles Swift Too Zealous?

One of the nagging questions about the use of military tribunals has been the role of military defense counsel. If military lawyers report to Defense Secretary Donald Rumsfeld and President Bush (and they do), how can they zealously defend the legal rights of a person that the President has already declared an “enemy combatant” who must be punished for war crimes? Isn’t that a classic conflict of interest? The response has been that the defense counsel for these tribunals would not be under any “command influence.”

Lt. Cmdr. Charles Swift was among the first group of military lawyers that were assigned to represent prisoners facing war crimes charges at Guantanamo. As it happened, Swift’s client, Salim Hamdan, was selected to be the first prisoner that would go before the new military tribunals.

Swift promptly challenged the legality of the commission system–and took the case all the way to the Supreme Court and prevailed. Two weeks after his high court victory, the Navy informed Swift that under its “up-or-out” promotion system, he must leave the Navy.

It is a bit peculiar for the Navy not to retain and promote Swift. After all, Swift was recently named by the National Law Journal as among the nation’s top 100 lawyers. When the tribunals were first proposed, the argument was “we have to do this because otherwise Johnnie Cochran will enter the picture and muck everything up.” Now it seems the feds can’t have Charlie Swifts either.

Lt. Cmdr. Swift participated in a debate here at Cato on military tribunals last March. To view that debate, go here. Swift’s co-counsel in the Hamdan case was Georgetown University law professor Neal Katyal. And Prof. Katyal summarized his critique of the tribunal system in this article (pdf) in the Cato Supreme Court Review.