Charles Swift *Live* on CNN yesterday-transcript

LEMON: OK, so if and when these suspects go to trial, they'll be tried in a revamped military justice system that's barely up and running. That's because the Supreme Court struck down the use of military tribunals to try terror suspects back in 2006, saying it was unconstitutional.

Now that precedent-setting case was successfully represented by my guest here, Charles Swift, who defended Osama bin Laden's driver. He's an Emory University law professor and a former naval attorney. And he joins us now.

First of all, we were talking about the charges here. Even with the charges, even with the death penalty, you don't think the defense has enough resources to even try this case?

CHARLES SWIFT, FORMER NAVAL ATTORNEY: It's not even close.

LEMON: Why not?

SWIFT: Right now they have four active duty defense attorneys that I'm aware of, all of whom have other cases. It has long been a saying in the United States that death is different. None of the people assigned to the Office of the Chief Defense Counsel are qualified in either the military, federal or state system in the death penalty. The standard is two attorneys who are defended, not three or four defendants per attorney. And so they don't have the resources.

LEMON: So, OK, even -- then why go -- why go for this? Because if you're going to charge someone with the death penalty, isn't the bar even a bit higher?

SWIFT: It's -- much higher. LEMON: OK.

SWIFT: And the process -- and this has been evident in United States courts since the '70s. The largest flaw that remains in death penalty cases today is not the constitutionality of the death penalty, but the defense that takes place during it. The government seems to almost intentionally insure that there is not sufficient assets to put on a credible defense.

LEMON: OK. Well let's get back to what the government's saying. It is saying that the charges lay out a long-term, sophisticated plan by the al Qaeda organization to attack the U.S. If the government didn't have an idea, or didn't think that it could win this case, then why would it proceed with death penalty charges for these -- ?

SWIFT: I don't dispute that they think they can win.

LEMON: OK.

SWIFT: What I dispute in the process is that they have failed to include an essential element, an essential element that was put forth in the Hamdan case.

LEMON: Right.

SWIFT: Is that it has to comport with due process. That means the individuals have to have an adequate representation. They also seek to avoid (ph), and this is illustrated by the Hamdan case back in the commissions last week. In Hamdan, down in the commissions, we argued that we ought to be able to talk to many of these same defendants about Mr. Hamdan's role, which was -- he says was non- existent.

The government said we could not even talk to these individuals under any circumstances because they might talk about their interrogation roles. Now that raises a question; how will a defense attorney ever represent these people if they're not allowed to talk to them about the interrogations?

LEMON: That's my next question. Doesn't this open up a whole -- another can of worms about the interrogation process and certain things, waterboarding, that we've been talking about a lot here in the news, that the government may not want brought to light?

SWIFT: Absolutely. And if we use -- we move beyond the torture discussion to the question of using this in a trial where life and death is at stake. If we use waterboarded testimony in that trial, to my knowledge -- and I've studied it fairly extensively, maybe someone can find a different (INAUDIBLE), the last precedent for using that kind of testimony was the Spanish Inquisition. We would then put ourselves in an incredibly unenviable position which is further compromised by the fact that we destroyed the tapes of the interrogations themselves.

LEMON: OK. So -- we -- I said in the intro that tribunals were declared unconstitutional and they were ruled out back in 2006. So then does that leave the government in the position of not being set up to handle these types of cases?

SWIFT: Well Congress gave them a way to do it with the Military Commissions Act, but they continue not to follow the spirit or the letter of the commissions act. This process, to work, has to make sure that both sides, as Alberto Gonzales himself admitted at one point, are represented fully and fairly by competent attorneys who do the best -- who put forth the arguments here. Right now, the government has rigged it to where only one side will have those attorneys.

LEMON: OK, real quickly, then what would you have the government do? How would you have handled this cases? What would you have charged these men with?

SWIFT: There's two ways to handle it. They could have taken it back to a court-martial system, which had trust, or into federal court. At a minimum, they need to make sure the playing field is level by bringing in the federal public defenders at this point. The military does not have the assets to do these cases. And that's been shown again and again, that the most they can come up with, out of active duty attorneys, is four attorneys.

LEMON: But isn't -- and I want to let you go, but this is sort of damned if you do, damned if you don't in this case?

SWIFT: Well if you go into -- I have absolute faith in our system of justice that we can convict an admitted mastermind without using torture to do it. It's the fact that we keep trying to do it that's destroying us, not the fact that somebody like Larry Fitzgerald couldn't get into a courtroom in the United States and convict these people. I believe they could. But the administration won't allow that argument to take place.

LEMON: All right. Charles Swift, I could sit here all day and talk with you, because it's very interesting. You know so much about this. Thank you for joining us today here in the CNN NEWSROOM.

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