Salim Hamdan's Tribunal and the Strength of the Constitution

Salim Hamdan's military tribunal, which came to a close with his unexpectedly light sentencing this week, may never draw comparisons to Nurememberg -- that great, if flawed, monument to the rule of law -- but in my mind it will always stand as something just as important: A symbol of the strength of America's values and the durability of our Constitution.

To defend this admittedly grandiose claim, I should probably start at the beginning.

Four-and-a-half years ago I went down to Washington to profile Hamdan's newly assigned defense lawyer, a JAG lawyer named Lieutenant Commander Charles Swift. A gift from the magazine gods, Swift was a blue-eyed, barrel-chested Navy officer who spoke not in sentences but in stories. Between mouthfuls of fried prawns at a Chinese restaurant at a strip mall in northern Virginia, he told me that he was dead serious about providing a vigorous defense for Hamdan.

I was, I'm embarrassed to say in hindsight, a little surprised. Like the government, which had expected Swift to persuade his client to plead guilty to whatever charges were ultimately brought against him, it had never occurred to me that a member of our own military -- whose headquarters had, after all, been one of the targets of the 9/11 attacks -- would be inclined to put up much of a fight on behalf of an accused terrorist.

But I was wrong. Swift was so serious, in fact, about defending Hamdan that he recruited a young constitutional law professor, Neal Katyal, to help file a lawsuit on Hamdan's behalf, arguing that the military tribunal in which he was to be tried was illegal. And I started working on a book about their case.

Since then, that these two men -- one a Naval Academy screw-up and the other a child of Indian immigrants -- held the rights of an accused terrorist as dearly as they held their own has often made me question my own complacent notion of patriotism. Swift lost both his career and his marriage thanks to the case. Katyal risked a rising legal career, in addition to going tens of thousands of dollars into personal debt. What other country would inspire such sacrifice, and would allow such a public challenge to its president?

After years of being knocked around by the courts, these two lawyers, eventually joined by a passel of law students and Perkins Coie, a Seattle firm that would devote thousands of pro-bono hours to the case, miraculously convinced the Supreme Court to hear Hamdan v. Rumsfeld, their suit claiming that the military commissions were illegal and unconstitutional.

On June 29, 2006, the justices handed down their verdict. Katyal and Swift had won, and the justices' sweeping decision in Hamdan was instantly recognized as one of the Court's most important rulings on presidential power ever. Among other things, it compelled Congress to write fixed rules for all the tribunals guaranteeing defendants more due process rights (for instance, they could no longer be kicked out of the courtroom during their own trial).

This week's verdict and sentencing in Hamdan's legal trial are a reminder of that victory. For Swift, in particular, who stayed on as Hamdan's counsel even after he had been forced out of the military in part for defending him, I couldn't help but feel the corny swell of an orchestra when I read about the sentence. From my years of reporting on Swift, I knew how despairing his relationship with Hamdan had often been. As Hamdan's only contact with the world, Swift has literally kept him alive for years, talking him out of numerous hunger strikes, despite being fired repeatedly and blamed for everything from the food on Guantanamo to the conditions in which he was kept.

Through it all, he was still advocating for Hamdan's constitutional rights. And there he was on Guantanamo on Thursday when his client's tribunal finally came to a close, celebrating his lighter than expected sentence and denouncing the trials. He was now in civilian clothes. In almost any other country, he would have been in a prison jumpsuit.

Jonathan Mahler is the author of a new book about the Hamdan case -- The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power -- and a contributing writer to the New York Times Magazine.

Comments

[chucktrotter]

"The power of the executive to cast a man into prison, ... without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist."

Winston Churchill

[mulegino]

With respect to the constitutional and civil rights of Americans, "terrorist suspects" are the canary in the coal mine. Laws protecting the accused do not exist for the benefit of the most beloved of celebrities; they are in place to protect even the most vulnerable and despised.
An extra-constitutional star chamber, even if used against those thought least deserving of due process-is a slippery slope down which all of our cherished, God given rights may soon slide.
The Nuremberg tribunals, cloaked in the mythology of virtue and right as they may be- were certainly not showcases of due process or "American" justice.

[Ozarks]

Why was Swift characterized as a "Naval Academy screw up". He at least carried on the "Honor Code" of USNA where he "held the rights of an accused terrorist as dearly as they held their own". McCain retained his USNA Honor Code will a POW and refused early release because he held other POW rights as dearly as his own. However now, McCain has descended to what I now consider a craven politician who you know is lying because his lips are moving.

[NotMcCain]

No, in a REAL court of justice (yes, think: Nuremberg) he would never even have been on trial at all.

After Hamdan serves the rest of his sentence, there is still no guarantee he will EVER be released (and if McCain becomes president, you can be sure that he won't be. Ever.).

If these prisoners go on trial, serve their sentences OR are acquitted--and then are still left to rot in prison for the rest of their lives--why should we be "proud" of that?

Nothing to brag about at all in this story. The man was convicted of...driving bin Laden around...and yet still has no idea if he will EVER see his family again, still doesn't know if he will EVER be free.

This is most definitely NOT an example of the principles of our Constitution at work. (And, of course, these people are imprisoned on foreign soil specifically so they can be DENIED those protections).

When people can't go free regardless of the outcome, you are looking at a "show trial". Sorry.

[marymansour]

A hearty salute to you, Lt. Commander Swift.

[curioustorquemada]

The quote "Naval Academy screw up" can mean only one thing.

Screen play for sale.

[ideasmatter]

Yes, I hold Lt. Commander Swift in great esteem as well, and feels that our nation owes him much more than it owes Bush, Cheney, Rumsfeld, or any of the lot. But with the claim that Mr. Mahler makes, that this could happen "only in America", or that this makes us somehow better than other nations, I strongly disagree. First there have been heroes like Swift in almost any country, people who fight for justice at great cost to themselves and their family, from Mandela, WWII resistance fighters in Europe, to Solzhenitsyn and Ghandi. Sorry, i find it rather jingoistic to make such grandiose statements about the US in what is in essence an extremely shameful episode for the military and for the country. And why does Mr. Mahler have to put down Commander Swift as a Naval Academy screw up, a statement for which he offers no evidence and that has no relevance?

I feel the American people owe it Commander Swift to restore his dignity and somehow reimburse him for his financial sacrifices, after expressing a deeply felt "Thank you".

[fightorleave2]

Of course, the world has many heroes. From the deposed Chief Justice, Iftikhar Chaudhry, in Pakistan to Aitzaz Ahsan, the leader of the lawyer's movement in Pakistan.

It is totally offensive to pretend only in America do people understand the notion of rights, etc.

It is also equally offensive to pretend that America is superior to other nations. Point in fact: Pakistan is about to impeach Musharaf, at least they say that they are, while in America the party in power refuses to hold corrupt, criminal leaders accountable. I have noted how ironic that Pakistan will impeach while America will allow Bush/Cheney to slink away.

[wfisher206]

You are right about both men. We owe them a huge debt. But they are not alone. There is a veritable army of pro bono lawyers defending GITMO detainees. Many of them come from our country's bluest ribbon law firms. Many have been mobilized by the Center for Constitutional Rights and other legal advocacy organizations.

You are also right about how few countries in the world would allow this to happen. We're not alone, but the number is small and shrinking.

[Rog49Thomas]

Well, one can also look at the glass as half empty.

Essentially, the Administration has stated that despite the verdict, they may continue to hold Mr. H indefinitely because he is an illegal enemy combatant.

Not sure how that squares with the Constitution - but perhaps I'm reading the "quaint and outdated" version.

Perhaps one "learned" associate justice from our own Supreme Court (sworn in during September 1986) could channel the Founding Fathers and set me straight.

[Geoffreys]

Yes. the Adminstration is saying they can hold Hamdan as long as they want and that enemy combatants blah, blah, blah...

But, 5 1/2 months from now, when Hamdan's sentence is up, there will be a new President ready to take his oath of office. If that is Obama - and if there is no Cheney led coup - the curren't Administration's opinions won't matter so much.

[Rog49Thomas]

Perhaps, we shall see.

But if rights are dependent on who is the current occupant of the Oval Office, then they are not rights.

They are "favors" granted by whoever sits in the sovereign's throne.

[brainuser]

Before the verdict, the jury was decried as hand-picked.

[Pagon]

On October 29, 2007, I posted my own tribute to Lt. Commander Swift on my web site.
http://stucohen.com/Swift-AmericanHero.htm
Swift is the kind of true patriot that renews my hope for the future of America. My congratulations and thanks go out to him.
I found nothing about him to indicate that he was "a Naval Academy screw-up" - or any other kind. The only reason he was "forced out of the military" was for defending Hamdan - not "in part for defending" Hamdan. His military record is full of accomplishments and awards - and no screw ups.
Marine Col. Dwight Sullivan, Chief Defense Counsel in the Office of Military Commissions, praised Swift's work as "really extraordinary" and said that the timing of the promotion decision was "quite a coincidence."
Some coincidence!
Read my page for the full story, including links to sources.
In case it matters to you, I am American born, and a veteran of the US Army.

[MahlerJonathan]

With all due respect, Stu, I have logged hundreds of hours with Swift -- and everyone else connected to the Hamdan story -- over the past few years, while working on a book about the case. Swift spent a good deal of his time at the Naval Academy on academic and disciplinary probation and was nearly "separated" on more than one occasion. Please see my newly released book, The Challenge: Hamdan v, Rumsfeld and the Fight over Presidential Power. (I also go into detail about the circumstances under which he was forced out of the military.)

[JerDogNebr]

I've been a criminal defense attorney for over 25 years and it is people like Lt Cmdr Swift and his co-counsel that make me proud to be an attorney. The public may think that it is individual brilliance that wins these important constitutional battles. The fact is that 99 times out of 100, it is just pure, dogged determination and the never giving up.

[outnow]

Hamdan didn't exactly get off lightly. It would have been much worse if these lawyers didn't rigorously defend their client's interests. Our country would have been that much further down the road to a totalitarian state. The case will go down in history with the Dred Scott Decision or the decision to inter the Japanese during WW II.

[PADDYWHACK]

I think the army,especially the lawyer and the jury have displayed true American values of the pre-Cheney variety.They are far better than their putative masters,it may make us feel good,but it will show the world that we are a self correcting democracy and not a fascist hellhole.

[lisakaz2]

Thank you for showing us just how much Booo$hCo wanted their show trial convictions -- enough to punish Mr. Swift for not playing along. And yet it is Mr. Swift who understand more about justice and being a patriot than these hacks to sought to ruin his life along with Hamdan. I hope both are blessed for their sufferings.