Charles Swift is the Director of Constitutional Law Center for Muslims in America. He was named by National Law Review as one of the top 100 legal minds in the nation. He is a retired Lieutenant Commander in the U.S. Navy, Judge Advocate General’s Corps. Charles is most known for winning the U.S. Supreme Court case Hamdan v. Rumsfield for his client, Salim Ahmed Hamdan. Following his military career, Charles was a visiting professor and head of the Humanitarian Law Clinic at Emory University School of Law in Atlanta, Georgia, before leaving to enter private practice in Seattle.
Charles has been a regular contributor on the topics of military law and terrorism for national news programs including MSNBC, CNBC, CNN, NPR, and Fox News. He has received numerous awards for his advocacy, including recognition as a Distinguished Alumnus at Seattle University School of Law, ACLU’s Roger Baldwin Medal for Distinguished Service, and was runner-up for Lawyer of the Year in 2005 as well as being named one of the 100 Most Influential Lawyers in 2006 by the National Law Journal.
Amina: 10 years ago, you achieved a landmark judgement for a Gitmo detainee. And yet, there are still members in Gitmo suffering and continuing the illegal detention. Do you see a hope that, Gitmo be ever closed and all detainees will see the light of freedom?
Charles: Yes I do , actually. Hamdan v. Rumsfeld stood for was a person that can’t change the rules that govern international armed conflict , that he can’t change the rules that govern the detention of the prisoners. Now Guantanamo bay has been founded on the idea that we are at war , but it is never accepted metaphysical war on terrorism. The justices great skepticism to that , now one forgets on Guantanamo bay that we have been at war in afghanistan now for 15 years.
The Guantanamo detainees as far as I am aware of now, were from taken in the context of that conflict and now it may seem extraordinarily unfair and a lot of them are still held without a real, quite unquestionable basis. The underlying justification for Guantanamo bay is the fact that we are still at war and you can hold prisoners during time of war. The courts have accepted , even in the original case, they said that , they held Hamdi, which the case was proceeded by, was that they could hold a detainee during time of war, that was well established , was war in Afghanistan and the united state participation in Afghanistan though not really at the level it was still continues. However I believe that their would be a very strong argument when that war ends and it will end and it is winding down now, US participation that the authority for US continues to hold prisoners in Guantanamo bay, absent convictions for war crimes, you could be held past the war , be tried for war crime of if you are convicted of a war crime but to hold without trial will go away at that point.
Hamdan did not free people , what Hamdan said was you have to follow the rules. Now in some instances , they have followed the rules , following the rules has gotten a lot of guys out. It hasn’t gotten everybody out and it remains difficult but I think that what’s clear whatever the current administration may say their ability under the supreme court’s past rulings is that they can’t change the rules for putting someone there.
Amina: With Donald Trump questioning Judges and making decisions such as travel ban, which outright appears to be against American Constitution. Do you think, it’s time for American Lawyers in numbers to stand-up for those who aren’t receiving injustice rather than few examples?
Charles: I think that what you are seeing is a revival on, is a legal system comes to life when they understand that there is a threat to the system and I think that the current administration is having the same impact inside the legal community that the bush administration did with Guantanamo bay. When we started Guantanamo bay there were very few. The height of Guantanamo bay , I used to say , you couldn’t be a cool kid on wall street firm if you didn’t have at least 2 Guantanamo clients. So the level of representation of the Guantanamo clients is unparalleled in american history.
Mr. Hamdan’s defence, if you put it all together was the most expensive defence in american history for an individual. His defence if you valued out, everybody gave their time for free, so it’s not that it was paid for by him but if you valued it out, we estimated that it was between 10 and 15 million dollars for an individual. I will tell you that at CLCMA, the day after the election of the current administration, we got more calls than we had ever gotten but they weren’t from Muslims, they were from lawyers who want to help.
I suspect as they did immediately on the travel ban in other places where the courts are threatened, where the rule of law is threatened , the lawyers stand up for it. I am heartened by that and confident by it and my mentor colleague and friend Neal Katyal, who is currently representing the state of Hawaii famously said “We just want to be for the status quo”, if we are not changing anything, courts don’t like to change anything, if you work for the status quo, we are likely to win and in this case maintaining religious liberties is the status quo.
Amina: After defending so many high profile cases in your career span, What suggestion do you want to give to the aspiring Muslim legal professionals in dealing with pressure from the Government, Media and Alright activists?
Charles: My advice to anyone who goes into this is, there are three things that are necessary to success.
- Know their limitations and make friends, no one beats the world alone , you got to make friends and I may have achieved the success I did was not by myself , I achieved it with partnerships with Neal Katyal, Linda Marino, Josh and many people. So network, network and network.
- Know what you care about: For me I have never argued and my personal hero is the great lawyer Michael tiger and Michael Tiger said, ”Never take a case you don’t believe in”. So pick what you believe in.
- What you can’t worry about is what is this gonna do for me. Because a lawyer represents people, they don’t represent themselves. You want your representation to speak well of you but your representation is not for your benefit, it’s for the benefit of the client.
If you remember that and if you believe in the case and you network and you makes friends , you can’t help but be a success.
Amina: Recently in an extra-judicial attack in Yemen, a young girl, an American Citizen was killed. Do you think, such cases can be taken up legally? Both the current President Trump and past president Obama have approved such extra-judicial killings of American Citizens.
Charles: Yes, they have and they are troubling and it’s a question in the area. Today the courts have been unwilling to enter into that area of presidential power.
The courts, and this is in the status quo, the difficult question , whether this is a better addressed political question, I am well aware of the — you are referring to and I don’t believe that the individual was a target I also believe that the rate was poorly planned and that poor planning , before we put out a lot of things, poor planning , this is a personal opinion on a political part to point out. The collateral damages are far more than we believe. In my experience in places like Yemen and places like Afghanistan , the mountains of high Pakistan etc.
Any insurgency and we are fighting in the insurgencies there is about hearts and minds. In the end the only way you can win an insurgency is for the other side to stop fighting, because there would be unlimited number of people to fight you.
The way we win is they stop fighting. When you kill innocent children in the process no matter what your intent was, no matter how pure it was. It’s difficult to get the other side to stop fighting.
I am heartened by the security, the new chief of security who came in , I am heartened by some of the people who came in and particularly I want to give credit where credit is due and the Trump administration’s national security adviser is world’s away from where we were and that is a extraordinary step in the right direction that he is a fantastic military officer, I know personally. I have great faith that he would have been much more sceptical and I know that his reputation in Iraq was to absolutely minimise collateral damage. He took every damage report as personal and really looked through it, you can’t stop it.
I do believe that the united states if we are going to be respected have to carefully look at collateral damage , I think we have to be willing to own up to it, I think we have to recognize it as a tragedy and I think we have to take some level of responsibility for it. I don’t know if that is legally required but I do know that if you want to win it is my favourite quote comes from Henry V, he is hanging one of the , troops in church and the army is not particularly happy, but Henry explains why he is punishing his own soldiers for crime. He says, “ when two sides play for a country the softer goes the quicker”. He explains why you obey the rules , not just because they are the rules, I believe we obey the rules because we are Americans, I also believe that obeying the rules helps us win.