Guantanamo defense lawyer forced to retire by Navy

By Carol Rosenberg

McClatchy Newspapers

NEWARK, N.J. - The Navy lawyer who took the Guantanamo case of Osama bin Laden's driver to the U.S. Supreme Court - and won - has been passed over for promotion by the Pentagon and must soon leave the military.

Lt. Cmdr. Charles Swift, 44, said last week he received word that he had been denied a promotion to full-blown Navy commander this summer - "about two weeks after" the Supreme Court sided against the White House and with his client, a Yemeni captive at the U.S. Navy base in southeast Cuba.

Under the military's "up or out" promotion system, Swift will retire in March or April, closing out a 20-year career of military service.

A Pentagon appointee, Swift embraced the alleged al-Qaida's sympathizer's defense with a classic defense lawyer's zeal - casting his captive client as an innocent victim in the dungeon of King George, a startling analogy for the attorney whose commander-in-chief is President George Bush.

He wore Navy whites to his client's war-crimes tribunal at Guantanamo, dress blues to challenge the administration on the steps of the Supreme Court and turned up last week at a symposium at Seton Hall Law School in more sober, workaday khakis.

"It was a pleasure to serve," said Swift, who added that he would defend Salim Hamdan all over again, even if he knew he would have to leave the Navy earlier than he wanted.

"All I ever wanted was to make a difference - and in that sense I think my career and personal satisfaction has been beyond my dreams," he said.

Swift, a University of Seattle Law School graduate, also said he will continue to defend Hamdan as a civilian. The Seattle law firm of Perkins Coie, which provided pro bono legal work in Hamdan's habeas corpus petition, has agreed to support Swift's defense of Hamdan in civilian life, he said.

Hamdan, 36, who has only a fourth-grade education, was captured along the border between Pakistan and Afghanistan while fleeing the U.S. invasion of Afghanistan, launched in reprisal for the Sept. 11, 2001, terrorist attacks. He admits to working as bin Laden's $200-a-month driver on a Kandahar farm, but said he never joined al-Qaida and never fought anyone.

Still at Guantanamo as an "enemy combatant," Hamdan halted his war-crimes trial by challenging the format's constitutionality through civilian courts. The justices ruled in June that President Bush overstepped his constitutional authority by creating ad hoc military tribunals for prisoners at Guantanamo Bay, Cuba, sending the Pentagon back to the drawing board for the trials.

In the end, it developed a system very similar to those struck down, setting the stage for a likely new challenge this session.

In the opinion of Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, Swift was "a no-brainer for promotion," given his devotion to the Navy, the law and his client.

But, he said, Swift is part of a long line of Navy defense lawyers "of tremendous distinction" who were not made full commander and "had their careers terminated prematurely."

"He brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love."

In June, the prestigious National Law Journal listed Swift among the nation's top 100 lawyers, with such legal luminaries as former Bush administration Solicitor General Theodore Olson, 66; Stanford Law constitutional law expert Kathleen Sullivan, 50, and former Bush campaign recount attorney Fred H. Bartlit, 73.

Navy Lt. Cmdr. Jeffrey D. Gordon, Pentagon spokesman on Guantanamo topics, did not respond to a query about the up-or-out system by which Navy lieutenant commanders are retired if they don't get promoted.

Perhaps ironically, one of Swift's first challenges on behalf of Hamdan as a civilian will be over whether he has the right to represent him in federal court. Under legislation approved by the House and Senate last month, Guantanamo detainees lose their right to file traditional habeas corpus petitions.

Swift last saw his controversial client last month at Guantanamo. "He's depressed," the lawyer said.

Swift said the Yemeni is now held in "Tango Block" at the U.S. detention center, in the company of ethnic Muslim Uighurs, who await resettlement elsewhere rather than repatriation to their native China.

"He now has Chinese roommates," meaning cellblock neighbors, said Swift, "which he's not particularly thrilled about."

Swift's supervisor, the Pentagon's chief defense counsel for Military Commissions, said the career Navy officer had served with distinction.

"Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, a former American Civil Liberties Union attorney, calling it "quite a coincidence" that the Navy promotion board passed on promoting Swift "within two weeks of the Supreme Court opinion."