Up Or Out

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Lt. Cmdr. Charles Swift, the US Navy defense lawyer who argued the Hamdan decision in front of the US Supreme Court, has been passed over for promotion and will leave the service after 20 years. The usual suspects who cannot tell a Canadian uniform from an American one are whining about the injustice. The Seattle Times strongly implies that there was a revenge motive in the decision.

NEWARK, N.J. — The Navy lawyer who took the Guantánamo case of Osama bin Laden's driver to the U.S. Supreme Court — and won — has been passed over for promotion by the Pentagon and must soon leave the military.

Lt. Cmdr. Charles Swift, 44, said last week he received word he had been denied a promotion to full-blown commander this summer, "about two weeks after" the Supreme Court sided against the White House and with his client, a Yemeni captive at the U.S. Navy base in southeast Cuba.

Under the military's "up-or-out" promotion system, Swift will retire in March or April, closing a 20-year career of military service.

A Pentagon appointee, Swift embraced the alleged al-Qaida's sympathizer's defense with a classic defense lawyer's zeal, casting his captive client as an innocent victim in the dungeon of King George, a startling analogy for the attorney whose commander-in-chief is President (George) Bush.

"It was a pleasure to serve," said Swift, who added that he would defend Salim Hamdan again, even if he knew he would have to leave the Navy earlier than he wanted.

"All I ever wanted was to make a difference — and in that sense, I think my career and personal satisfaction has been beyond my dreams," he said.

Swift, a Seattle University Law School graduate, also said he will continue to defend Hamdan as a civilian. The Seattle law firm of Perkins Coie, which provided pro-bono legal work in Hamdan's habeas corpus petition, has agreed to support Swift's defense of Hamdan in civilian life, he said.


In the opinion of Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, Swift was "a no-brainer for promotion," given his devotion to the Navy, the law and his client.

But, he said, Swift is part of a long line of Navy defense lawyers "of tremendous distinction" who were not made full commander and "had their careers terminated prematurely."

"He brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love."

Swift's supervisor, the Pentagon's chief defense counsel for Military Commissions, said the career Navy officer had served with distinction.

"Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, a former American Civil Liberties Union attorney, calling it "quite a coincidence" that the Navy promotion board passed on promoting Swift "within two weeks of the Supreme Court opinion."

We simply do not have the facts here. Could someone on the promotion board have been negatively influenced by the Hamdan decision? Sure. Anything is possible. However, it would be wise to keep in mind that the "up or out" policy has some strict rules. At Swift's level only 50% of officers make the cut at all. Swift was passed over by the board a year earlier. The failure rate for getting promotion the second time if passed over a year earlier is 98%.

It most likely was not malice, but just the way the system operates. I have known several good, solid career officers who got caught in this exact same system and are civilians now.

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13 Responses to Up Or Out

  1. MrGone says:

    Yea, that makes more sense buddy. No one in this administration would ever act vindictively re the opposoition. BTW What flavor is that kool-aid you’re drinking? I might like some myself.

  2. Gaius says:

    Spoken like someone who has no knowledge of the military whatsoever.

  3. biwah says:

    And the promotion rate for lawyers who has argued landmark cases before the Supreme Court, and won – what is that percentage I wonder?

    Clearly not Navy material.

  4. Gaius says:

    Go read up on the system. If you understand the way the military thinks about a lot of things, you would not necessarily ascribe malicious intent. Because Swift had already been passed over, his was an enormously uphill battle no matter what he accomplished. Nor do you or I know why he was passed over the first time. It may have been for a good reason we don’t understand.

  5. biwah says:

    Gaius, is your point that the military, including the promotion process, are free of politics? If not, what is your point? It’s an extremely strong circumstantial case that that Swift was denied promotion for political reasons directly related to Hamdan. Call it retribution or whatever you like – there is one heck of a motive, and motive is extremely relevant.

    More likely, it’s obviously political, and no one is surprised, including Swift himself.

  6. Gaius says:

    No, most likely your conclusions come from your politics, not from any knowledge or insight into the system. Just your feeling that you know what really happened.

    You don’t. Neither do I. But I think I probably know a little more about how the military works, based on your argument.

  7. biwah says:

    After reading up, I think I see your point Gaius. Not sure what officer level Swift was on. The article does not mention him getting passed over previously, but if you say he was, his odds were slim to begin with.

    I would still maintain that his getting passed over is remarkable, given his work in Hamdi and his resulting stature. What are the criteria anyway? You are right that the facts are incomplete, but they are not so lacking that one cannot look at the circumstances and smell a (political) rat.

  8. biwah says:

    Our last two posts has crisscrossed. You would like to make this all about who knows the military better. Well congrats.

    But if Swift is not deemed an exceptionally able and experienced lawyer by the Navy, the #1 explanation (though not the only) is that there is a political motive against giving him a promotion, and the wider authority that accompanies it.

  9. s. sommer says:

    Guess there is only so much room at the top.. a real pity, to have the Navy losing someone of so much obvious talent. I can understand their policy when it comes to populating the fighting forces & their field leadership, but what would a top attorney bring to them but terrific experience? Seems that if they have some sort of “quota” in the attorney dept, it would FAVOR experience but evidently NOT.

    Does this mean that they dumped someone like him so that they could keep beginners instead? Oh, well. Bet he will do well in private practice, but if he was willing to serve his country & settle for the low pay, seems that patriotism is not being appreciated. And, isn’t our military a bit too small right now, anyway?? Shouldn’t we be building more ships, in particular??

  10. Gaius says:

    The system has been a source of complaints since it was put in place. It is not perfect. But as I understand it, officers are graded on past performance, present performance and future expected performance. The system at Swifts level mandates that 50% will be washed out. Once you have been passed over once, you have an enormous uphill battle. Is it fair? That’s hard to say from the outside. Will damn good people get washed out? Yup. I know several who did.

    It is very important here not to automatically say it was bad motives – the situation was already very, very unfavorable for Swift to begin with – he knew it. He’s been in the system for a while now.

    The system, s. sommers, was designed to not clog the upper ranks with people who were ossified. It may also wash good people out. But it keeps it from being bound by seniority only. The system has been in place since after WWII and was put in place for that reason.

    Don’t assume it was political, it may not have been at all. Or it may have had to do with Navy politics, not civilian. Or it may have been something in the past or a lack the board thought they saw for the future.

    Swift did his job, he did exactly what an advocate is supposed to do.

  11. BubbaB says:

    Another point I haven’t seen: Maybe knowing that he only had a 2% chance of making the next rank after having been passed over, he decided, what the heck, he was going to go out with a bang.

    And the argument that he argued a “landmark” Supreme Court case? I hate to point this out, but, generally, ALL SCOTUS cases are landmarks. The SCOTUS won’t take a case if it will just add to the status quo. A lot of cases are not taken, or are referred back to the last court that had issued a verdict.

    I also get the impression that there are a significant number of military lawyers, especially in the upper ranks, that have argued cases before the SCOTUS. There are always one or several military cases in pretty much every SCOTUS session. And each case has at least one, usually several, military lawyers… Do the math.

  12. HellaciousHelen says:

    An important point to remember was that when he was passed over for the first time he was already at work on the case, so the argument that he only had a 2% chance because he was already passed over once doesn’t matter, since the first review (still only 50% chance) was really the deciding one anyway. By 2004 (his first review) he already knew he was on his way out. He didn’t step up the case because he knew he was out, he had already stepped up the case because he is a model american. The promotion or lack thereof didn’t affect his ethical stance.
    so, political bias or no, the navy did lose a great lawyer in 2004 when they made the decision not to promote, but america did not.

  13. Gaius says:

    And we do not know – nor really should we – why he was passed over. The decision is based on past, present and future and we don’t know where some factor was seen.

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