Hamdan lawyer fired for excessive competence

The JAG lawyer who won the Hamdan case has just been passed over for promotion: in effect, fired. Hardball? Plenty. Rule of law? Not so much.

Lt. Cmdr. Charles Swift, the JAG lawyer who fought the Hamdan case up to the Supreme Court and won, has just been fired.

Technically, he was “passed over for promotion.” But under the military “time in grade” rules (aka “up or out”) that means he will have to leave the Navy.

1. His boss says “he has obviously done an exceptional job, a really extraordinary job.” So he’s not being booted for incompetence. Rather the reverse.

2. The comparison with totalitarian systems makes itself. The right to a lawyer isn’t worth much if the lawyer gets fired if he does too good a job.

3. Swift isn’t really very badly damaged personally. His Navy career is shot, but he’s famous, and he also will have his 20 years in by the time he is actually shown the door, so he gets to collect retired pay. But the warning to JAG lawyers with less time in and defending less spectacular cases is clear: if you do your job too well, it will cost you, big-time.

4. Hardball? You bet. Rule of law? Not so much.

5. This obviously makes mincemeat of the claim that the military justice system can handle trials of those accused of terrorism fairly.

6. Everyone up the chain of command, right up to the Commander-in-Chief, looks bad.

7. The conservative law professoriate was mostly pretty quiet about torture and arbitrary detention. I wonder whether this direct assault on the profession they teach will get them roused?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

16 thoughts on “Hamdan lawyer fired for excessive competence”

  1. So, from an article that quotes only two supporters of his, neither of whom having anything to do with promotion review boards, you jump to the conclusion that his being passed over was payback? Great knee-jerk criticism there. Jump to conclusions. Assume the worst of those you dislike.
    Do you have any idea what the odds of a Lt Cmdr being selected for promotion is? Hint: not great. Probably a lot tougher than what it takes for some hack college professor to receive tenure. I would ask you for the evidence that this guy was better qualified than all of the other Lt Cmdrs who were selected for promotion… or for the smoking gun memo from Karl Rove ordering an end to this guy's career… but I know you don't have any.
    But go ahead and slime those you disagree with. It's gotten your side pretty close to taking control of Congress… and as your side has proven over and over again, principle matters much less than having power….

  2. Do you have any idea what the odds of a Lt Cmdr being selected for promotion is?
    Gee, I didn't think the selections were random. I though they were merit-based, and the chance of getting a promotion if you do an "exceptional..extraordinary job" was excellent.
    Guess not.

  3. Bernard,
    I don't know the odds here–I just don't. If someone has them, they'd be helpful.
    I do know that the promotions at about the 20-year mark in the Navy and the Army (to Rear Admiral/Brigadier General) are extremely hard to get (maybe 10% are promoted), and everyone is "exceptional".

  4. Andrew Olmsted suggests the fraction promoted is about 5/8, which he views as small, as part of his argument that Swift's being passed over wasn't political.

  5. Lieutenant Commander is the Navy's equivalent of Major, O-4. Screening for Commander (O-5, Army/AF equivalent Lt. Col.) isn't *that* rigorous. An 'exceptional' JAG officer would ordinarly make the screen.
    If we were talking about promotion to Captain (Naval type, O-6), then yeah, the screening critera are quite a bit tougher.
    Yeah, it looks like payback.

  6. Payback or not, the message is quite clear: we CAN ruin YOUR career if we so desire. Now, just how dedicated to the law ARE you??

  7. Thank you, Bargain CounterTenor.
    I was thinking of the promotions to O-5 (Bird Colonel) and, especially, O-6 (Brigadier General); this being "only" O-4 makes it much more suspect.

  8. "I wonder whether this direct assault on the profession they teach will get them roused?"
    Another simple answer to a simple question.

  9. Well, I don't know what specific criteria the Navy uses, but if you are a lawyer in the JAG corp, and you win a Supreme Court Case, tearing Ivy League pukes from the DOJ and the freaking Soliciter General's office several new ones, doesn't that make the grade? What more could a lawyer possibly accomplish? This guy did not win because he was lucky, he won because he was good, damn good. Take a look at the court records that are available on Hamdan. Plus, this guy KNEW he was risking his career by dong this ,and he did it anyway. Not only was he good, he had the stones to stand up and do what he thought was right, risking his career in the process. And you're seriously telling me he wasn't promotable?

  10. No, he wasn't promotable. He passed the character test with flying colors, which, under the current DoD rules, means that he failed it.

  11. What hebisner said.
    Even if it was just a bog-standard case, he won in the Supreme Court, and that's promotion material or there is no such thing as merit-based promotion. But it wasn't a bog-standard case — it was the most politically charged case that JAG had handled in years, and he went up against what are supposed to be the best lawyers in government service, in front of a Court politically predisposed to side against his position, and he won. Hands down. The guy should skip a grade, if there was any justice.

  12. Sam:
    O-6 is Navy Captain/Colonel
    O-5 is Commander/Lt. Colonel
    O-4 is Lt. Commander/Major
    Moving to O-5 isn't nearly has hard as moving to O-6, and nothing like as hard as moving to flag or star rank.

  13. Is there any evidence here at all? Or just unsubstantiated and not particularly well-founded suspicion? Is there any reason to think this moved up the chain of command at all? (Or is the suggestion that the chain of command should have preemptively ordered an irregular promotion?)
    Mark, if this makes mincemeat of the claim that the military justice system can handle trials of suspected al Qaeda, then you're going to need to take that up with your party, aren't you? I mean, I thought the hard-line Democrat position was precisely that the ordinary court martial procedures should be granted. Is it really now your position that al Qaeda should be given better treatment and more rights than our men and women in service?

  14. No, Thomas, it's his position that the military should be cleaning up their act in general — as applied both to detainees AND to "our men and women in service", since a military with no commitment to elementary rules of justice is a recipe for disaster in general. (This isn't the first time I have been forced to the conclusion that you take Stupid Pills, but it's the most spectacular.)

  15. Bruce, if that's the point then it's quite obviously ridiculously overstated. Mark hasn't anything here but suspicion, and the sort of conclusion you'd draw would require a bit more than that.

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