Will Justice Prevail For JAG Blackballed After He Won Supreme Court Case?

By BURTON WEINSTEIN

The New York Times reported last month, under the heading "The Cost Of Doing Your Duty," that Lt. Commander Charles Swift was being terminated. Swift was the Navy career Judge Advocate who represented Salim Hamdon, accused of being a high ranking member of Al Qaeda.

Apparently the purpose of the defense was to get Mr. Hamdon to plead guilty before a military commission at Guantanamo Bay.

Every person sworn into the Armed Forces swears a contradictory oath. On the one hand, one swears to "uphold, protect and defend the Constitution of the United States ... from all enemies foreign and domestic." On the other hand, the oath requires obedience to one's superior officers.

When those two parts of the oath are in conflict, each individual is forced to make a crucial decision. Lt. Commander Swift chose to defend the Constitution. He successfully appealed to the United States Supreme Court, which struck down the tribunals as unconstitutional and ruled that they violated American laws as well as the Geneva Convention.

The Navy ended Lt. Commander Swift's career by passing him over for promotion, which compelled him to retire. It appeared obvious to everyone reading The Times that the termination of Lt. Commander Swift's career was in retaliation for doing his duty: defending the Constitution and winning the case.

On Oct. 18, 2006, Major General Charles J. Dunlap, Jr., Deputy Judge Advocate General of the Air Force, wrote a letter to The Times defending the Navy's position. He asserted that the decision to terminate Lt. Commander Swift's career was possibly based on an assessment of his potential rather than on the excellent way he carried out his sworn duty.

A great newspaper editor, William Allen White, once said, "The greatest enemy of communications is the illusion of it." By the same token, the greatest enemy of military justice is the illusion of it.

By coincidence, the weekend of Oct. 14/15, 2006 was the Yale Law School Reunion. A panel discussion dealing with separation of powers and implications of Guantanomo took place on the afternoon of Oct. 14.

One of the participants was Stephen G. Calabresi, a professor of law at Northwestern. He is also a leading spokesman for the Federalist Society and a very tough advocate of maximum executive power.

At the seminar on Guantanomo someone pointed out that there was a right of direct appeal from the High Court of Military Justice to the United States Supreme Court. This person asked if that aspect of civilian control over the military gave constitutional justification for the Senate Judiciary Committee -- chaired by navy veteran Arlen Spector, R- Pa., a member of the class of '56 which was having its 50th reunion -- to hold hearings to determine if the termination of Lt. Commander Swift's career was in retaliation for his taking the constitutional case to the Supreme Court and winning it.

In fairness to everyone, it is important to know if what happened to the career of Lt. Commander Swift was the equivalent of telling public defenders that their careers would be ruined if they got an acquittal at a high profile case or that failure to obey an order to betray the interest of a client was the equivalent of insubordination.

It is also very important to know if, in fact, there were other valid reasons for the failure to promote Lt. Commander Swift.

The Judiciary Committee could and should inquire as to whether access to justice in the military can be terminated at the whim of commanding officers. "Command interference" is a basis for appeal under the Uniform Code of Military Justice.

If the judiciary committee establishes that retaliation was not the cause of the termination, a great service will have been done for military justice. If it is determined that the termination was in retaliation for treating law and order as being complimentary rather than antagonistic, an even greater service to military justice can be done when Senator Patrick Lahey, D- Vt., chairs a Judiciary Committee which can propose a legislative remedy.

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Burton Weinstein, an Army veteran of the Korean War and a nationally-acclaimed civil rights litigator, represented Tracey Thurman in her battle against the Torrington, Ct., Police, who failed to protect her from an abusive husband. Their stunning $2.6 million federal verdict against the city cast a national spotlight on domestic violence, prompted new state laws and helped save many lives. After graduating from Yale Law School, Weinstein took odd jobs, including work as a stand-up comedian, before he secured a position with a firm. "My bio," Weinstein is fond of saying, "is reasonably accurate. As all lawyers know, the truth, the whole truth and nothing but the truth can be three different things."