Guantanamo Defense Team Taking On System

What bothered Navy defense lawyer Charles Swift as he sat down with his new client, Salim Ahmed Salim Hamdan, was not the waist chains and leg cuffs criss-crossing Hamdan’s orange prison jumpsuit. Nor that Hamdan, who served as Osama bin Laden’s personal driver in Afghanistan, faced terrorism charges.

What bothered Lt. Cmdr. Swift was that his client -- along with five other prisoners in the U.S. detention center at Guantanamo Bay, Cuba -- had been selected to have his case heard before a special military tribunal that would operate outside the framework of American and international law.

Instead of facing regular criminal courts or the U.S. military’s own criminal justice system, each with its well-established rules and safeguards, these defendants were to face something new: a hastily revived military commission that had not been used for more than 50 years.

For Swift and the other military lawyers assigned to the six cases, the heart of their defense has become an all-out attack on the legitimacy of the tribunal, or commission, system itself.

“The system will not guarantee a fair trial,” Swift said in an interview. “What you seek is an independent and impartial hearing -- and this ain’t it.”

As they challenge the basic fairness of the tribunals, Swift and his colleagues are writing a new chapter in the relationship between the armed forces and lawyers in uniform.

Their clients are accused of taking part in a conspiracy to destroy the nation whose uniform the lawyers wear. And while Swift and the others are appointed by the Pentagon and still subject to the military chain of command that culminates with the president, they are in the unusual position of having to attack both their employer and their commander in chief.

They understand that they are making history. “When else are you going to get to the chance to be involved in a process that’s as monumental as this?” asked Army Maj. Mark Bridges, another member of the defense team. “What happens here will affect the future of war crimes prosecutions.”

So unusual is the lawyers’ position that a few months ago, Swift violated an explicit order from the president. When Bush revived the commissions following the Sept. 11 terrorist attacks on New York and the Pentagon, he prohibited military defense attorneys from going into regular federal courts on behalf of their clients.

Following Bush’s directive, Swift decided, would have prevented him from meeting his ethical obligation to give Hamdan the best possible defense. So Swift ignored the order and filed a lawsuit in U.S. district court in Seattle that attacked the tribunals as an “unprecedented, unconstitutional and dangerously unchecked expansion of executive authority.”

The outcome of Swift’s suit remains to be determined, but he and others on his team were buoyed last week when the Supreme Court ruled in other detainee cases that the war on terrorism did not give the president unlimited power to set aside normal legal rights and procedures.

The court has long made it clear, said Justice Sandra Day O’Connor, that “a state of war is not a blank check for the president.”

The administration argues that the special commissions are necessary, given the unique realities of the war on terrorism. “Different doesn’t mean unfair,” said Air Force Maj. John Smith, a lawyer and spokesman for the Office of Military Commissions. “The rules were designed to look at violations of the laws of war.”

Known collectively as the “Guantanamo Five,” Swift and his colleagues are led by Air Force Col. Will Gunn, 45, an imposing figure with many years of experience in military justice.

Under commission rules, Gunn is the Guantanamo defenders’ supervisor and may not take on cases himself. But he guides overall strategy and offers a layer of insulation between the case lawyers and Pentagon brass.

Even though the Pentagon picked both the prosecutors and the defense lawyers, critics said, the defense team is considered the best the military has to offer.

“All of these people are the pick of the litter,” said Eugene Fidell, head of the National Institute of Military Justice, an umbrella organization of lawyers who work in the military justice system. “They really are highly regarded.”

Reporting to Gunn are:

* Air Force Lt. Col. Sharon Shaffer, 40, who represents Ibrahim Ahmed Mahmoud al Qosi of Sudan, an alleged Al Qaeda financial manager, Bin Laden bodyguard and weapons smuggler. Shaffer has argued more than 200 cases in court and ruled in more than 160 cases as a military judge.

* Navy Lt. Cmdr. Philip Sundel, 40, an experienced prosecutor who helped set up the Rwanda war crimes tribunals. He represents Ali Hamza Ahamad Sulayman al Bahlul of Yemen, who is said to have been a Bin Laden bodyguard and a producer of Al Qaeda recruiting videos that encouraged the killing of Americans.

* Bridges, 37, assisting Sundel in Al Bahlul’s defense. He is the youngest of the defense attorneys.

* Marine Maj. Michael Mori, 38, often referred to within the team as simply “the Marine.” His colleagues suggest that the fiery and determined Mori is attacking the tribunal system much the way other Marines attack enemy beachheads.

His client, Australian David Hicks, is accused of attempted murder, aiding the enemy and conspiracy to commit war crimes. He allegedly attended Al Qaeda terror camps in Afghanistan and fought against coalition troops.

* Swift, 42, representing Hamdan. A Naval Academy graduate and perhaps the boldest of the defense lawyers, Swift earlier this month named Bush, Defense Secretary Donald H. Rumsfeld and the head of the Office of Military Commissions, John D. Altenburg Jr., in the Seattle lawsuit.

Swift’s challenge to some of the most powerful figures in the government may be in part because as he sees it, Hamdan is among the lowliest of the defendants.

When Swift interviewed him at Guantanamo, Hamdan had been in custody for more than two years -- most of the time with no charges filed against him -- and had been in isolation for several months. His client had trouble talking, Swift said; he was out of practice.

Although dubbed “Osama bin Laden’s chauffeur” by the government, Hamdan told Swift, “I never joined Al Qaeda. I am not in the military. I was just a civilian doing my job. What am I doing here?”

Prosecuting Hamdan, Swift said, was like indicting Martha Stewart’s chauffeur for insider trading.

The last time the American government resorted to military commissions was in 1942, when eight Nazi saboteurs were caught on the East Coast during the early months of U.S. entry into World War II. Brought before military tribunals, six were sentenced to death and executed within days of conviction, while the other two received long prison terms.

To Swift and his team, Bush’s revival of commissions by executive order in November 2001 looks like another wartime rush to justice.

“We’re going back and trying to use a standard of justice that was created at a time when society recognized the appropriateness of segregation,” Mori said. “We’ve evolved too far” to go back to that, he said.

Defense lawyers note that when the 1942 tribunals were convened, the Geneva Convention did not exist and the Defense Department had not developed the Uniform Code of Military Justice that was created to address shortcomings in the old system.

Bush asserted the right to establish the commissions and to choose which defendants would be tried before them, as well as the right to pick prosecutors, defense attorneys and judges for such trials.

Moreover, administration officials said, no court outside of the military would be allowed to review a military commission’s decisions -- a position the Supreme Court struck down last week.

In challenging the tribunals, defense lawyers are expected to focus on a broad array of rules and decisions that could deny their clients protections normally available to defendants. Among them are the detainees’ lack of prisoner-of-war status, which cuts them off from the protections of the Geneva Convention.

The lawyers may also challenge rules of evidence that allow a majority of the commission to overrule the presiding officer (there is no judge), secrecy regulations that can deny defendants access to the evidence against them, and a rule forbidding plea bargains and the dropping of charges without permission from the authority that approved the charges in the first place -- “like letting the pitcher call balls and strikes,” Mori said.

Said the defense team’s Gunn:

“I always had this notion and this belief that it is entirely possible that there are people at Guantanamo that shouldn’t be there. They’re people that are caught up that were at the wrong place at the wrong time.

“Even though we have a nation that’s hurting.” he said, “if they are in fact not the terrorists that they are claimed to be, then let that come out.”