LIEUTENANT COMMANDER CHARLES D. SWIFT, JAGC, USN
SENATE COMMITTEE ON JUDICIARY
SUPREME COURT DECISION ON DETAINEES:
"HAMDAN v. RUMSFELD"
11 JULY 2006
name is Charles D. Swift. I am a Lieutenant Commander in the Judge
Advocate General's Corps, United States Navy, and I am the detailed
defense counsel in the military commission case of United States v.
Salim Ahmed Hamdan. I thank the Committee for inviting me to testify
today as you begin the vitally important process of determining the
necessity of a legislative response to the Supreme Court's opinion in
Hamdan v. Rumsfeld.
Critical to that consideration is the
question of whether military commissions can ever actually deliver the
full and fair trials promised by the President's order. Based on the
past five years the inescapable conclusion is that the commission
consistently failed to meet the President's mandate for full and fair
trials. This isn't simply the view of a defense counsel who litigated
in the commission system. It is also the view of some of the commission
prosecutors. One of those prosecutors, Air Force Captain John Carr,
wrote that in his experience, the commission system was "a half hearted
and disorganized effort by a skeleton group of relatively inexperienced
attorneys to prosecute fairly low-level accused in a process that
appears to be rigged." (E-mail from Captain John Carr to Colonel Fred
Borch, attached at Tab A) Another prosecutor, Air Force Major Robert
Preston, lamented that "writing a motion saying that the process will
be full and fair when you don't really believe it is kind of hard --
particularly when you want to call yourself an officer and a lawyer."
(E-mail from Major Robert Preston to Colonel Fred Borch, attached at
Tab A) The commission system, as these prosecutors concluded, was
incapable of holding a fair trial.
Those of us who litigated
cases in Guantanamo recognized that the military commission system was
flawed in both design and execution. The military commission system's
procedures were simply inadequate to ensure that trials produced
accurate results. The system's many shortcomings included the
The military commission system had inadequate rules
to ensure that the Defense would receive exculpatory evidence in the
government's possession. Providing the defense with exculpatory
evidence in the government's possession promotes not only a tribunal's
fairness, but also the accuracy of its results. That is why the Supreme
Court has held that an "individual prosecutor has a duty to learn of
any favorable evidence known to the others acting on the government's
behalf in the case, including the police." Kyles v. Whitley, 514 U.S.
419, 438 (1995). Yet in the military commission system, the Prosecution
had no obligation to give the Defense exculpatory evidence in the
possession of other government agencies. This was significant because,
according to one former military commission prosecutor, government
agencies intended to deliberately exploit this gap in discovery
obligations to keep the defense from obtaining exculpatory evidence.
Commission prosecutor Captain John Carr wrote to the commission
system's Chief Prosecutor, "In our meeting with [a government agency],
they told us that the exculpatory information, if it existed, would be
in the 10% that we will not get with our agreed upon searches. I again
brought up the problem that this presents to us in the car on the way
back from the meeting, and you told me that the rules were written in
such a way as to not require that we conduct such thorough searches,
and that we weren't going to worry about it." (E-mail from Captain John
Carr to Colonel Fred Borch, attached at Tab A)
Very simply, under
the military commission rules the Prosecution had no obligation to
disclose evidence from other government agencies suggesting the
defendant was innocent.
The military commission system's lax
evidence admissibility standard allowed the Prosecution to obtain a
conviction through the use of rank hearsay, including unsworn written
statements and law enforcement agents' summaries of interviews. During
the commission discovery process, it became apparent that major
portions of the Prosecution's cases would consist of calling law
enforcement agents to the stand who would then testify about what they
heard from various witnesses they interviewed. The defendants would
have no ability to cross-examine the actual witnesses against them,
because those witnesses would never be called. Instead only the
government's agents would be called.
This procedure contrasts
sharply with the guidance of Justice Scalia's opinion for the Supreme
Court in Crawford v. Washington, which noted that the Confrontation
Clause was adopted in response to arguments that "[n]othing can be more
essential than the cross examining [of] witnesses, and generally before
the triers of the facts in question. . . . [W]ritten evidence . . .
[is] almost useless; it must be frequently taken ex parte, and but very
seldom leads to the proper discovery of truth." The dissenting Justices
in Hamdan were incorrect in maintaining that "Petitioner . . . may
confront witnesses against him." The Defense could confront only those
witnesses the Prosecution chose to present. In practice, this meant
little or no confrontation right at all.
commission system had no rule preventing the admissibility of
statements obtained by coercion. As Chief Justice Roberts recently
wrote for the Supreme Court, "We require exclusion of coerced
confessions both because we disapprove of such coercion and because
such confessions tend to be unreliable." Yet military commissions had
no rule excluding such unreliable evidence unless the coercion rose to
the level of torture. Even the prohibition against statements obtained
by torture -- belatedly adopted on March 24, 2006 and announced the day
before the Supreme Court's oral argument in the Hamdan case -- fails to
provide a standard of proof or allocate who has the burden of proof to
establish that statements were the product of torture. Perhaps the most
glaring problem was that, as a practical matter, the rule barred
tortured testimony only when it was torture in the eyes of the
prosecution -- and there was no provision at all guaranteeing to the
defense any sort of discovery about coercion to obtain testimony.
Both the Presiding Officers, who performed the judicial function in
the military commission system, and the military commission panel
members, who served as jurors, were selected by the Appointing
Authority -- the same official who approved the charges against the
defendant. One of the military commission prosecutors, Air Force
Captain John Carr, wrote that the Chief Prosecutor told him "the
military panel will be handpicked and will not acquit these detainees."
(E-mail from Captain John Carr to Colonel Fred Borch, attached at Tab
A) For the position of Chief Presiding Officer, the Appointing
Authority picked a long-time friend who had retired from the Army five
years previously, had not practiced law since his retirement, and had
never been an active member of any bar.
Authority -- the same individual who approved the charges and appointed
the commission's members and its presiding officer -- also performed a
judicial role. Any interlocutory appeals were resolved by the
Appointing Authority. So any ruling by the commission that would result
in dismissal of the charges was forwarded to the Appointing Authority
for his review. Thus, the same official who had begun the prosecution
by approving the charges was allowed to overrule any determination that
the charges should not go forward.
The Review Panel, which was
supposed to serve as the appellate body of the military commission
system, was not impartial. One member -- William T. Coleman, Jr. --
attended a meeting in July 2003 during which the prosecution discussed
its efforts and strategy and a discussion was held as to various legal
authorities relevant to military commissions. (Exhibit 11 to
Declaration of Christine S. Ricci, pages 47-50, Vaughn Index, NIMJ v.
Department of Justice, No. 1:04CV00312 (RBW), attached at Tab B)
The Defense had no right to call witnesses. The parties' ability to
obtain witnesses to testify at military commission hearings was
unequal. The Prosecution could obtain whatever witnesses it wished
unilaterally, but the Defense was required to ask the Prosecution for
permission to obtain any witnesses it wished to call. The Defense was
required to give its opposing counsel a synopsis of the witness's
expected testimony along with an explanation of how the testimony
supported the Defense case. This resulted in the equivalent of a poker
game in which the Prosecution's cards were dealt face down while the
Defense cards were dealt face up. The advantage to the Prosecution was
palpable. Additionally, while the Defense could seek the Presiding
Officer's review of the Prosecution's denial of a witness request, in
practice the Presiding Officers denied literally every Defense witness
request on which they ruled. In all ten commission cases, in only a
single case and then only in one instance has the Defense been
permitted to call a witness. That witness -- the only witness to ever
testify at a military commission proceeding in Guantanamo -- was allowed
to testify under a pseudonym despite the fact that the same witness had
previously provided a sworn affidavit concerning the same subject
matter in which he identified himself in open Federal proceedings.
Again, the Hamdan dissent was incorrect in claiming that "Petitioner .
. . may subpoena his own witnesses, if reasonably available." In fact,
the Defense had no ability to issue subpoenas and, with only one
exception, no success in obtaining witnesses through the Prosecution or
the Presiding Officer.
Almost all of the documents that the
defense counsel did receive through the discovery process could not be
shared with the client. Most of the documents the defense received were
"Protected Information" because the Prosecution made the discretionary
decision to stamp them "For Official Use Only" or "Law Enforcement
Sensitive." Protective orders in commission cases also severely limited
the defense counsel's ability to discuss prosecution witnesses'
identifies with the defendant. Preventing the defense counsel from
discussing virtually all of the Prosecution's evidence with the
defendant made effective case preparation almost impossible.
The commission system not only prevented the defendant from preparing
for trial by reviewing the evidence with his defense counsel, but also
allowed the defendant to be excluded from portions of his own trial.
Any civilian defense counsel representing the accused could also be
excluded from closed sessions. In two commission cases -- United States
v. Hamdan and United States v. Hicks -- the defendant was removed from
his own trial during voir dire. When a defendant or civilian defense
counsel was excluded, commission rules prevented the military defense
counsel from sharing with them what occurred during the closed session.
In the history of Anglo-American jurisprudence, including that of
military justice, I have only learned of one incident during the Civil
War where this is documented to have occurred. In that case the Judge
Advocate General of the Army summarily reversed the decision.
Those few rules that did exist to govern commission proceedings were
subject to constant revision. The rules could, and did, change after
cases had already begun. Additionally, the power to make new rules was
subdelegated all the way down to the Presiding Officers. The result was
equivalent to allowing U.S. district court judges to make up new
Federal Rules of Criminal Procedure and apply them to cases that had
already started. The Presiding Officers on occasion abused this
authority by adopting new rules that not only aggrandized their own
power, but also prejudged matters that the parties were litigating
before them by promulgating rules that codified the Prosecution's
The system for assigning several defense
counsel from the same office to represent alleged co-conspirators
violated some defense counsel's state bar ethical rules. The
Pennsylvania Bar Association advised the military defense counsel in
one military commission case that she had "a disqualifying conflict of
interest" due to the office's representation of multiple alleged
co-conspirators. (Advisory opinion of Pennsylvania Bar Association,
attached at Tab C)
Even if the handpicked commission panel were
to review all of the evidence and acquit the defendant, the defendant
could nevertheless remain incarcerated. Secretary of Defense Rumsfeld
stated, "Even in a case where an enemy combatant might be acquitted,
the United States would be irresponsible not to continue to detain them
until the conflict is over." If a detainee can be held indefinitely
with or without a guilty verdict at a military commission, then why
When then-White House Counsel Alberto Gonzales
promoted the concept of military commissions in a November 30, 2001 New
York Times op-ed piece, he argued, "They can dispense justice swiftly,
close to where our forces may be fighting, without years of pretrial
proceedings or post-trial appeals." Almost five years later, not a
single military commission has been completed. The ten that began were
convened 8,000 miles from where our forces are fighting in Afghanistan.
By contrast, during the same period the Army alone has held 373
courts-martial on the battlefields of Iraq and Afghanistan. These
proceedings accomplished every one of the objectives laid out by the
Attorney General in his op-ed.
In his dissent, Justice Thomas
echoed the proponents of commissions and criticized Justice Stevens for
ignoring the reality of the battlefield. Such criticism is unjustified.
The court-martial was developed for both use on the battlefield and the
protection of information vital to national security without
compromising the essential substantive safeguards necessary for a fair
trial. Judge Robertson, who issued the injunction requiring the use of
courts-martial, and Justice Stevens and Justice Kennedy, who authored
the opinions upholding Judge Robertson's opinion, are all former
service members well acquainted with the realities of the battlefield.
The reality of the battlefield is that our service members are best
served by scrupulously following the laws of war, even when our enemies
do not. Following the law of war protects our military in the field,
enhances our national reputation at home and abroad, and promotes the
growth of the rule of law and democracy that in the end are our
strongest weapons against terrorism.
To illustrate the potential
damage to our national reputation posed by quick-fix legislation in the
wake of the Supreme Court's decision, consider the following: Suppose
that in order to protect our troops from false allegations of the
murder of civilians by our enemies, military commanders invoked the
historic requirement that the crime of murder cannot be prosecuted
unless the prosecution can produce a body. A military prosecutor
seeking justice for the victims and believing that the rule conflicts
with both the modern law of war and the Uniform Code of Military
Justice appeals the order all the way to the Supreme Court, ultimately
prevailing. The decision is hailed around the world as evidence that
the United States stands first and foremost for the rule of law. Under
these circumstances, attempting to circumvent such a decision without
proof that the existing rules were inadequate would not make sense.
Hastily adopting legislation that revives the discredited commission
system would similarly detract from our nation's reputation as the
leading proponent of human rights in the world.
and eight months ago, following the publication of the President's
unilateral decision adopting Military Commissions, my co-counsel
Professor Neal Katyal warned this committee that they would fail to
produce convictions and eventually be struck down by the Supreme Court.
Not only was Professor Katyal's legal analysis correct, but the
practical benefits of commissions extolled by it proponents have failed
to materialize. The commissions have completed not a single trial. No
one was even indicted for almost three years, and when indictments
finally came, a total of 10 have been made. Do we really want to change
the entire legal regime -- exposing us to untold criticism around the
world for abrogating the Geneva Conventions -- for 10 trials? Perhaps
such a regime change makes sense if there is incontrovertible evidence
that the current one has failed. But, as five Justices of the Supreme
Court repeatedly emphasized in the Hamdan decision, the existing
court-martial system provides a battle-tested way to try terrorists
today. Before junking an existing system, we should give that system a
try - particularly when making any changes will inevitably result in
yet more litigation and uncertainty.
Trials that comply with
the Uniform Code of Justice will cure all of the abuses I have
identified for this committee. If on the other hand we again elect to
stray from the tried and true path laid out in the Uniform Code of
Military Justice that the Supreme Court returned us to, not only will
these abuses continue, but I fear that we will find ourselves right
back where we started yet again. Except this time, the situation will
have deteriorated to the point that trials are no longer even possible.
It is time for the American people to have their day in court. It is
time to use courts-martial.