New military lawyer for Salim Hamdan condemns Military Commissions at Guantánamo

In the Miami Herald, veteran Gitmo-watcher Carol Rosenberg is the first to report on the appointment of a successor to Navy Lt. Cmdr. Charles Swift, the Judge Advocate’s General (JAG) lawyer, who fought a long, principled, and career-destroying battle to defend his client, Salim Hamdan, a 36-year old Yemeni who had been one of Osama bin Laden’s drivers in Afghanistan, from prosecution in the morally repugnant and legally corrupt system of Military Commissions that the administration has tried to establish at Guantánamo (for the latest blow to the regime, see here).

In an excellent profile in Vanity Fair in March, Swift outlined to Marie Brenner the egregious flaws in the Military Commissions system, as he had identified them during his first visit with Hamdan in 2004: “no right to habeas corpus, no attorney-client privilege, forced guilty pleas for charges never made public, secret and coerced evidence, juries and presiding officers picked by executive fiat, clients represented even if they declined legal counsel.”

He also succinctly described the administration’s reasons for setting up the Commissions, and explained why, with civilian lawyer Neal Katyal, he had taken Hamdan’s case to the Supreme Court, securing a momentous, if ephemeral victory in June 2006 –- before the subsequent passing of the Military Commissions Act –- in which the highest court in the land had ruled that the Commissions were illegal under long-established US laws, the Geneva Conventions, and the Uniform Code of Military Justice.

“The whole purpose of setting up Guantánamo Bay is for torture,” Swift said. “Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively –- what some people call torture. Guantánamo and the military commissions are implements for breaking the law.” For his pains, Swift was deliberately passed over for promotion, and was forced to retire last week “under an up-or-out Pentagon system.” He has now taken a teaching post at the Emory University School of Law in Atlanta, although, as Rosenberg reports, he “will continue to lead the Hamdan defense team as a civilian.”

Charles Swift celebrates victory in Hamdan v. Rumsfeld, June 2006.

Hamdan’s replacement is 38-year old Army Major Thomas Roughneen, “a former New Jersey prosecutor who served in Iraq during the US invasion.” With Swift, Roughneen recently met Hamdan for “more than 35 hours” at Guantánamo, and explained that he immediately “told his client about his 2003 service in US-occupied Iraq – as a US Army officer engaged in nation-building.” “I didn’t think he should learn from anyone else,” Roughneen explained. “There’s obviously a lot to overcome for a guy like me, who has been to Iraq, to convince Salim that I’m worth trusting.”

As Rosenberg noted, however, Roughneen has willingly “join[ed] a fraternity of military and civilian lawyers who have argued that President Bush’s post-9/11 war court [the Military Commissions] deny a captive fundamental US legal principles guaranteed in US civilian and military courts.” From the start, he has expressed his opposition to the system, explaining that he is “confident” that it will “collapse under high court scrutiny,” and adding, “It’s like the Titanic. You know someday the ship is going to sink. God almighty, let’s get there already.”

In the meantime, as Rosenberg describes it, Roughneen and Hamdan “have a common goal: to get [Hamdan] freed from Guantánamo and home to his native Yemen.” She added that, for the New Jersey native, who graduated from Seton Hall Law School in 1995, “his new assignment is a natural fit –- for an American soldier who has both prosecuted rapes, murders and car-jackings in New Jersey’s Essex County and promoted democracy in northern Iraq,” and Roughneen himself explained, “I think it is overreaching –- after a crime, after arrest –- to create a whole new court with new rules of evidence and new crimes.”

“The King is dead; long live the King,” seems an appropriate conclusion. If the Military Commissions are ever resuscitated, zombie-like, to insult 231 years of American law once more, it’s good to know that another hard-working and principled American is ready to stand up to resist the depredations of an administration whose notions of criminal justice owe more to Joseph Stalin than to George Washington.

For more on the Military Commissions, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.