Lawyer drummed out of Navy after doing his job sends the wrong message

Lt. Cmdr. Charles Swift won a Supreme Court victory as a Navy lawyer battling the best that the Bush administration had to put up against him.
It is difficult to underestimate the implications of that legal victory. It forced Congress to pass the Military Commissions Act, which President Bush signed with much fanfare. The act sets new standards governing the trial and treatment of detainees in the war on terrorism.
The implications for Lt. Cmdr. Swift's naval career also turned out to be huge. He is finished in the Navy. Swift, a lawyer so skilled that he was able to defeat Secretary of Defense Donald Rumsfeld's legal team, was not good enough to earn a promotion to full commander. The lawyer so dedicated to duty that he defended his client knowing that his career was in jeopardy, was found to be someone the Navy could happily do without.
There is a message there, and it is a frightening one, coming as it does at a time when the United States is attempting to hold itself up to the rest of the world as an example of how a free and open democracy is supposed to operate. It is a message that no matter what the rule of law may say about how the government can treat and prosecute detainees in the war against terror, the law is subject to easy subversion. As long as the government provides detainees with lawyers who now know that their careers are subject to ruin if they provide aggressive representation, the law is not worth the paper on which it is printed.
Swift, 44, was assigned to defend Salim Hamdan, a Yemeni who admits taking a job as Osama Bin Laden's 200-per-month driver but says he never joined al-Qaida. Hamdan was one of those detainees whom the government said were not entitled to protection under U.S. law or international law. The administration planned to use military tribunals modeled on a World War II panel that quickly tried and executed German saboteurs.
Victory in court
The Supreme Court ruled in Hamdan vs. Rumsfeld that President Bush overstepped his constitutional authority by creating ad hoc military tribunals for prisoners such as Hamdan, who is being held as an "enemy combatant" at Guantanamo Bay, Cuba.
After a contentious debate in Congress, the president got much of what he wanted in the Military Commissions Act, which almost guarantees the case is headed back to the Supreme Court. But Swift won't be Hamdan's military lawyer this time and will probably have to argue to be allowed to continue representing Hamdan as a civilian lawyer.
Under the military's "up or out" policy, career officers who are not promoted in a timely fashion must retire. Swift's denial of promotion means he'll be out of the Navy in March or April.
When he signed the Military Commissions Act Oct. 17, Bush said the commissions "will provide a fair trial, in which the accused are presumed innocent, have access to an attorney, and can hear all the evidence against them. These military commissions are lawful, they are fair, and they are necessary."
The penalty Lt. Cmdr. Swift has paid for being an honest advocate for his client raises a serious question about how fair these trials can be. Just how many more lawyers does the military have who are willing to commit professional suicide defending an accused terrorist?
And once there are no more men like Swift left in the ranks, how will fair be defined?