Last month the Supreme Court ruled that President Bush’s military tribunals at Guantanamo were illegal – a violation of the United States’ Uniform Code of Military Justice (UCMJ) and the Geneva Conventions1. The case, Hamdan v. Rumsfeld, was brought by Lt. Cmdr. Charles Swift of the Navy Justice Advocate General’s (JAG) Corps. Swift recalled joining the JAG Corps twelve years ago2:
The guy who gave me the job said he wanted fighters, We [in the JAG Corps] all believe that if the system is to work, you can’t think about whether this case or that case will make someone happy or not.
In 2002, the Bush government set up the prison camp at Guantanamo Bay, Cuba, to hold and interrogate persons captured in Afghanistan outside the purview of U.S. courts3. Rumsfeld issued rules allowing some torture of prisoners there, and later the practice spread to Iraq. The JAG’s of each military branch warned Rumsfeld against adoption of the torture rules4. The Army JAG, Maj. Gen. Thomas Romig, said that it would lower international standards, “putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades.”
In July 2003, Bush began the tribunal process. Swift told the story to the Senate Judiciary Committee5:
The plan was to begin Commissions with guilty pleas. … a request to detail Military Counsel to Mosem Begg of Great Britain and for David Hicks of Australia believed to be likely candidates for guilty pleas was made.
I watched as diplomatic talks between Great Britain and the United States attempted to reconcile the Commission procedures with what Great Britain considered to be the minimum standards of due process for criminal justice required by the Anglo Saxon tradition and international law for a criminal proceeding.
Ultimately, the Department of Defense released the British detainees rather than accede to Britain’s demands concerning the commissions.
As talks with Britain were reaching an impasse, it was decided to skip the British defendants and move on in an attempt to demonstrate the legitimacy of Commissions. Still determined to begin the commission with guilty pleas, Mr. Hamdan was substituted for Mr. Begg on the belief that he too would agree to plead guilty. On or about December 12th, 2003, Mr. Hamdan was moved into “pre-commission segregation,” and held in solitary confinement in Camp Echo. … I was subsequently detailed to represent Mr. Hamdan on December 17, 2003.
At the onset of my representation of Mr. Hamdan, I was deeply troubled by the fact that to ensure that Mr. Hamdan would plead guilty as planned, the Chief Prosecutor’s request came with a critical condition that the Defense Counsel was for the limited purpose of “negotiating a guilty plea” to an unspecified offense and that Mr. Hamdan’s access to counsel was conditioned on his willingness to negotiate such a plea.
… During the initial period of his pretrial confinement, Mr. Hamdan was held in isolation for more than seven months in violation of the Geneva Convention. Mr. Hamdan’s cell lacked both natural light and ventilation. For approximately the first 60 days of that pretrial detention, Mr. Hamdan was only permitted only a half-hour of exercise and then only at night. … Federal courts have found that solitary confinement for even a handful of days to constitute violations of the Constitution, let alone seven months. …
Despite Attorney General Ashcroft’s assurances to Senator Edwards that the President’s Military Order would not be used to detain a person for an unlimited period of time, General Hemingway rejected Mr. Hamdan’s request for a speedy trial, finding that he had no right to a speedy trial and could be held indefinitely.
At Mr. Hamdan’s request and out of belief that I had no other options left in April 2004, I filed and have maintained since, a petition for Writ of Mandamus and or Habeas Corpus challenging both the lawfulness of procedures and the jurisdiction of the proceeding. …
Among the many problems with the tribunals that Swift pointed out to the Senators was:
… the military commission rules permit the introduction of tortured testimony without notice of how it was obtained.
Swift summed up:
The Military Commission process … is an exercise in futility. It tries to reinvent a vibrant system of law, the American court-martial, without considering its fundamental features: balancing of rights of defense and prosecution, and compliance with international law and the United States Constitution.
Swift warned that Bush was seeking the power to arrest any American citizen and throw him to a kangaroo court6:
Mr. Bush and his lawyers have made it clear that he wants a precedent [from this case] that says the president, as commander in chief, can arrest any person in the world and then put that person on trial before a military tribunal (or commission).
They’ve made it very clear that these powers can be exercised against American citizens right here at home. The president talks about the global war on terror and his lawyers have gone into court frequently saying the United States is a battlefield in this war.
I love the military. I love my career and I’m proud of it. … One thing that has been a great revelation for me is that you may love the military, but it doesn’t necessarily love you.
After the Supreme Court ruling against Bush’s tribunals, Swift remarked9:
… [the Court’s decision] actually makes us much stronger in this struggle against terrorism. … We’re in a much stronger position because our values match our actions and our words.
Charles Swift talks to reporters outside Supreme Court after ruling. (AP)