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It's the Constitution, Stupid by Nicholas M. Jackson The other day we learned that the US Navy is forcing Lt. Commander Charles Swift to leave the service after he reaches 20 years of service next spring. It seems this Navy JAG was passed over for promotion one time too many. They say he's not qualified for higher command. Swift, a 1984 graduate of the US Naval Academy and a 1994 graduate of the Seattle University School of Law, is admitted to practice before the Supreme Court of the United States, the Supreme Court of the State of North Carolina, and the Court of Appeals for the Armed Forces. He is the military-appointed defense lawyer for Guantanamo Bay detainee Salim Ahmed Hamdan. According to George W. Bush, Hamdan was Osama bin Laden's personal driver and bodyguard, a terrorist conspirator who didn't deserve either the protection of the Geneva Conventions or the right to trial before a regularly-established military tribunal. According to Lt. Commander Swift, President Bush's executive order creating military commissions at Guantanamo Bay violated the Geneva Conventions and the Uniform Code of Military Justice. Swift aggressively and brilliantly took Hamdan's case all the way to the US Supreme Court. And won. Charles Swift is not the only active duty military lawyer who has recently opposed his Commander in Chief. Last summer several current and former senior military lawyers testified before Congress about the need to continue Geneva Convention protections for detainees held during President Bush's war against terror. Why would active duty JAG officers so publicly oppose Bush's detainee policies? One clue might be the nature of the oath an US military officer takes upon appointment. This oath begins: "I, _____ (SSAN), having been appointed an officer in the _____ (Service) of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States . . ." Another clue might be the oaths of admission for attorneys that are typified by these first words: "I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of . . ." Notice how the first duty in either of these oaths is to the Constitution of the United States. This Constitution created the United States of America and is the oldest modern, national, codified constitution in the world. It has been emulated by many other nations in modern history. It is by virtue of the US Constitution that George W. Bush was sworn in as the President of the United States and under the same authority that the US Supreme Court ruled against Bush last summer in Hamdan v. Rumsfeld. In recent years President Bush's lawyers have been playing fast and loose with the Constitution. They have invented a new doctrine, called the "unitary executive" that, combined with the President's role as Commander in Chief, vastly diminishes the relative authority of both the legislative and judicial branches of the federal government. This doctrine also assists this President in unilaterally projecting military might to far-flung regions across the planet. President Bush has publicly stated that he expects to be a wartime president for the remainder of his term in office and expects his successor will also be a wartime president. Apparently, the unitary executive doctrine will be the standard for the foreseeable future. But the most noticeable feature to President Bush's claim for extraordinary power is how it manifests itself against those he says are enemies of the United States. In the first two months after September 11, 2001, federal law enforcement officials rounded up about 1,200 Arab and Muslim men found within the United State as part of then-Attorney General John Ashcroft's order for "aggressive detentions." Many of these detainees were eventually deported from the United States. Nobody is saying exactly how many were suspected of actual terrorism activity. It's a secret. For terrorism suspects captured outside of the United States, President Bush's legal advisors developed a rather novel concept: the United States was at war, but captured enemy warriors were not entitled to prisoner of war status. They could stand trial as criminals with their lives in the balance, but they could not have basic due process rights afforded accused criminals under the US Constitution. Nor could they exercise such human rights as are widely recognized under international law. Yet not one of these detainees has been convicted of an offense against the United States. It isn’t as if the President lacked the tools to bring terrorists to justice before he took office. Under 18 USC § 2332, the United States specifically has extraterritorial authority to prosecute foreigners who murder, conspire to murder, or inflict physical violence against US nationals abroad. This statute went into effect twenty years ago. And 18 USC § 2332a, which has been on the books since 1994, authorizes the United States to prosecute foreigners who attack US nationals abroad with weapons of mass destruction. Considering that § 2332, § 2332a and other similar laws operate counter to the usual presumption against extraterritoriality, the United States has possessed extraordinary tools for reaching across international borders and bringing international criminals to justice for quite some time. International criminals of all sorts, including terrorists and major drug traffickers, have been successfully captured abroad and prosecuted in US District Courts. Where classified information was involved in the prosecutions, such information has been reviewed by judges “in camera” and redacted evidence has been properly presented in open court. And the defendants in these types of cases had all the constitutional protections in their trials as are available to any other criminal defendant --- including habeas corpus. Somehow, detainees such as Salim Ahmed Hamdan, are such a threat to the very existence of the United States that they cannot be tried before a regular military tribunal or in a federal court. The newly-passed Military Commissions Act of 2006 is the latest clever piece of legislation from President Bush's lawyers. It creates slightly different military tribunals to replace those declared unconstitutional by the US Supreme Court. And it undoes almost everything Charles Swift won for his client in Hamdan v. Rumsfeld. This statute also makes sure that no other JAG lawyer will ever get a detainee before any ordinary federal court. Lt. Commander Charles Swift's military career is up in smoke, but his legal career continues with honors. Swift will be receiving the Distinguished Alumnus Award from Seattle University School of Law on November 2 and continues interviews and speaking engagements as permitted by other obligations. Hopefully, the US Supreme Court will feel obliged to strike down the Military Commissions Act of 2006 as unconstitutional. And hopefully the United States has enough lawyers such as Charles Swift to continue paying heed to their oaths to support the US Constitution. Far too many other lawyers have paid heed to billable hours and career advancement.
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