Military Justice, or the Power of Kings before the Magna Carta?

MEDIA NOTES: Navy Lawyer Discusses Hamdan, Guantanamo NPR Talk of the Nation 021507

Before this one slips away, I need to document the interview with Navy lawyer Charles Swift on Talk of the Nation. Swift was the JAG (Judge Advocate General) appointed to defend Salim Ahmed Hamdan, one of the detainees being held at Guantanamo Bay. The Hamdan case became a legal limbo compared with Alice in Wonderland, Kafka, and Catch-22 before it ended up in the U.S. Supreme Court. Ultimately, the Court ruled that the President’s suspension of the writ of habeas corpus -- based on a claim that military justice was whatever the Commander in Chief said it was at the time -- was unconstitutional.

“That’s the power of kings before the Magna Carta,” Swift said on NPR. “I believe the Supreme Court had never cognizanced the Commander in Chief with that kind of power.”

The passion of Swift’s Constitutional arguments impressed me deeply. Listen to his defense of the rule of law as the foundation of American values (at 24:00-26:40 in the NPR stream): “If we’re going to have a trial where the outcome is pre-ordained, and we can’t trust the federal courts to have a fair trial, and we can’t trust a federally-appointed judge to protect the United States’ interests and national security, do we still have our values? What happened?”