Swift justice on military commissions

Several career military officers say it’s unlikely Lt. Cmdr. Charles Swift, a Navy war crimes lawyer, was passed over for promotion – and thus forced out of the service – just because he took on a tough war crimes case in 2003 and opposed the Bush administration’s plans for prosecuting Salim Hamdan, once a driver for Osama Bin Laden.
I wrote about Swift – a North Carolina native – because it reminded me of the World War II case when another Tar Heel officer essentially bucked his president. Then-Col. Kenneth Royall, a Goldsboro native, represented eight Nazi saboteurs who came ashore on Long Island and were bent on mayhem. They were quickly caught, and President Roosevelt wanted them tried quickly and put to death. He ordered Royall and several other lawyers to stay away from civilian courts.
But Royall thought the president didn’t have the authority to convene secret courts and appealed to the U.S. District Court, and eventually the Supreme Court. That court ruled Roosevelt did have the authority to order a secret tribunal, though the court did recognize that constitutional safeguards for those charged “are not to be disregarded.” (Royall later became Secretary of War and then Secretary of the Army.)
Swift, who grew up in Franklin, bucked his president, in effect, by challenging the military tribunals to try Guantanamo detainees. The Supreme Court ruled against Bush and in Swift’s favor on a 5-3 vote this summer – but two weeks later the Navy advised Swift that he was being passed over for promotion for the second time. Being passed over twice means you leave the service. It also sent a distinct message, many analysts believe.
The news media took it to mean the Navy was punishing Swift by halting his career. The New York Times, The Miami Herald and many others saw a direct connection between the two events, as did I. The Herald quoted Eugene Fidell, president of the national institute of Military Justice, as calling Swift “a no-brainer for promotion” to full commander. The Cato Institute, a libertarian think-tank, noted that Swift had been named one of American’s top 100 lawyers by the National Law Journal and observed, “It is a bit peculiar for the Navy not to retain and promote Swift.”
Not so, wrote retired Army Lt. Col. Stephen Honaker and Air Force Col. Morris Davis, chief prosecutor in the Office of Military Commissions at the Department of Defense, in separate e-mails.
Both noted that the promotion of officers to the level of commander in the Navy turn on a number of factors, including whether officers have had experience in combat situations and whether they have had other levels of experience required for the job.
It’s a highly competitive process, and excellent officers often get passed over for higher rank. And Honaker noted that Swift himself doesn’t believe retribution was involved. In a recent interview with National Public Radio, Swift said, “In taking the Hamdan case, I took myself out of the normal progression path.” That meant he didn’t get all the experience an officer would need for the next step up. The NPR interview with Nina Totenberg is on the web.
Swift will go on to a job in a prestigious law firm where, no doubt, he will earn more than he ever could in the Navy. He understands that much of this conflict is about the rule of law. On “Hardball” with Chris Matthews, this is what Swift said about taking what appears to be an unpopular stance involving the nation’s enemies: “It’s not whether they deserve it or not. It’s how we conduct ourselves. It has to do where if we say that our opponent can cause us not to follow the rules anymore, then we’ve lost who we are.”
Sen. Lindsey Graham of South Carolina was in Raleigh the other day to talk about the new law governing military interrogations and trials, and said much the same about taking an unpopular stance: “Because it’s about us, not about them... We’re about to show the world in a couple of months how we’re different.... You will be part of a country that has chosen to give rights and privileges to a group of people who would give you none. That makes us stronger, not weaker.”