Outside the Beltway

Hamdan Lawyer’s Navy Career Could be Ending

James Joyner · Sunday, July 2, 2006 · 9 comments

LCDR Charles Swift, the Navy JAG who defended Salim Ahmed Hamdan and just won his client’s case before the U.S. Supreme Court, is apparently about to be put out of the Navy.

The LAT reported Friday:

The U.S. Navy lawyer who challenged the Bush administration’s efforts to try terrorism suspects at Guantanamo Bay, Cuba, walked a professional tightrope between fellow officers trying to gain speedy convictions and what he considered a moral imperative to buck the chain of command and vigorously defend his client. Lt. Cmdr. Charles Swift could have taken the easy route of arranging a plea bargain for Salim Ahmed Hamdan, the Yemeni alleged to have worked as a driver and bodyguard for Al Qaeda leader Osama bin Laden. But fearful of the dangerous precedent that could be set by denying international standards of justice to those swept up in the war on terrorism, Swift battled to get the rights and protections of the Geneva Convention for his client.

The Supreme Court ruled Thursday that President Bush had overstepped his war powers in sending Hamdan and nine others to face military tribunals, America’s first since World War II. “I feel like we all won, that the rule of law won, and that is essentially what we are all about,” Swift said of the high court’s validation of his three-year campaign on behalf of his 36-year-old client.

Swift was assigned to defend Hamdan by the Pentagon in November 2003 and initially was ordered by a superior officer to secure a plea bargain so there would be a timely conviction. “I had the unenviable task of going down to this guy from Yemen in the uniform of people who had been treating him badly and saying, ‘If you don’t make a deal you may never see me again,’ ” Swift recalled of his first meeting at the U.S. detention facility at Guantanamo with Hamdan and his decision to fight a process stacked against the defendant.

[…]

Colleagues attributed the high court ruling to what they considered to be Swift’s determination to protect the integrity of U.S. jurisprudence against a Pentagon bent on retribution for terrorism attacks on U.S. forces. “It took exceptional courage. He had to risk himself being alienated from the larger military establishment,” said David Scheffer, law professor and director of the Center for International Human Rights at Northwestern University. “He must have known when he took this on that he was risking his career, and sadly he may have done that within the U.S. Navy.”

Though Swift’s successful challenge of the tribunal’s legitimacy will probably open doors in the private sector and academia for the Navy lawyer, Scheffer said, Swift has reportedly been passed over for promotion. “It was a gutsy move, and he did it with J/www.outsidethebeltway.com/wordpress/wp-content/uploads/2006/07/LCDR_Swift.jpg” align=right hspace=5 alt=”Photo LCDR Charles Swift” /> Lt. Cmdr. Charles Swift — the Navy lawyer who beat the president of the United States in a pivotal Supreme Court battle over trying alleged terrorists — figures he’ll probably have to find a new job. Of course, it’s always risky to compare your boss to King George III. Swift made the analogy to the court, saying President Bush had overstepped his authority when he bypassed Congress and set up illegal military tribunals to try Guantanamo detainees such as Swift’s alleged al-Qaida client, Salim Ahmed Hamdan.

The justices agreed, ruling 5-3 Thursday in favor of dismantling the current tribunal system. Despite his spectacular success, with the assistance of attorneys from the Seattle firm Perkins Coie, Swift thinks his military career is coming to an end. The 44-year-old Judge Advocate General officer, who was recently named one of the 100 most influential lawyers in the country by The National Law Journal, was passed over for promotion last year as the high-profile case was making headlines around the world.

“I may be one of the most influential lawyers in America,” the Seattle University Law School graduate said, “but I won’t be in the military much longer. That irony did strike me.”

Swift’s future in the Navy now rests with another promotion board that is expected to render its decision in the next couple of weeks. Under the military’s system, officers need to be promoted at regularly scheduled intervals or their service careers are essentially over. “The way it works, the die was cast some months ago,” he said. “The decision has been made. I don’t know what it is yet.” But he thinks his chances are slim.

Asked if he believes he was passed over for promotion last year for political reasons, Swift would not speculate. “I don’t know,” he said. “I’m not going to worry about it. I didn’t volunteer for this. I got nominated for it. When I got it, I just decided to do the best I could.”

Swift has worked under two officers as a member of the small team of lawyers defending “enemy combatants” being held at Guantanamo Bay. Both of them spoke highly of Swift Friday and said they gave him very high ratings on his annual review, called a fitness report. “He’s doing a fantastic job,” said Swift’s current boss at the Office of Military Commissions (tribunals), Marine Col. Dwight Sullivan.

[…]

So the question is will Swift lay down his career because of his vigorous defense of a Yemeni tribesman who was Osama bin Laden’s driver in Afghanistan. Swift’s first supervisor at the Office of Commissions was Col. Will Gunn, who said Friday that he gave Swift two annual fitness reports and “I gave him very high ratings overall.”

Asked whether he thought politics might have played a role in Swift being bypassed for promotion, Gunn focused on Swift’s atypical career as a military lawyer. “Charlie has spent a lot of time as a litigator, a trial advocate. That’s really unusual in the JAG. You find that people in the more senior ranks have moved around and proved themselves in a variety of settings.” Most of Swift’s career has been spent in the courtroom. “While Charlie is a brilliant guy, a tenacious litigator, he does not have all the blocks checked like some other folks have,” Gunn said. He called it a “breadth-of-experience” issue.

So, nineteen paragraphs into a story with a headline that asserts Swift is being punished for his fearless derring do in speaking truth to power, we’re told by the boss whose ratings of Swift are likely to have the most impact on his chances for promotion the real reason he’s unlikely to make Commander: He hasn’t managed his career properly. The Navy doesn’t need people at command rank who have the same breadth of experience as a junior lieutenant. At that level, officers are expected to have served in a variety of assignments which have given them a broad understanding of their career field.

Swift hasn’t done that. Instead, he’s decided to continue to pursue assignments that allow him to do what he enjoys doing and is clearly quite good at: being a litigator. It might be that he’s so good at that role that the promotion board will decide he’s too valuable to the Navy to let go. But they don’t have the option of keeping him on as a LCDR: It’s either up or out.

I would note, too, that it’s not just the military that operates in this way. I know of professors denied tenure, and thus essentially fired, who won campus-wide “Teacher of the Year” honors. To students and the general public, that outcome seems outrageous. Yet tenure decisions revolve around arcane formulas weighing the full range of a professor’s contributions, including publications, conference presentations, campus and community service, and teaching. Teaching tends to be at or near the bottom of the list. Great lecturers are often lousy scholars and denied promotion over mediocre teachers who have more well-rounded CVs.

Further, as Andrew Olmstead points out, it’s not as if non-selection for promotion to Commander, especially for a JAG, is a form of retribution: “Looking at naval selection rates for staff ratings in 2005, JAG officers (Designation 2500) saw 25 of 40 officers in the primary zone, as Swift was last year, selected for promotion. That’s a selection rate of 62.5%, or not a lot better than flipping a coin.”

Of course, looking at facts isn’t as sexy as claiming “King George” is punishing officers who dare stand up to his evil power grab.

UPDATE: Some interesting background reading:

• Charles P. Pierce, “BEST & BRIGHTEST 2004: Charles Swift,” Esquire, Dec. 2004
• Phil Carter, LCDR Swift for the defense, Intel Dump, June 14, 2004.
• Jonathan Mahler, “Commander Swift Objects,” New York Times Sunday Magazine, June 13, 2004.