Charles Swift recounts the challenges he faced in defending the widow of Omar Mateen, who killed 49 at Orlando’s Pulse nightclub in 2016. Swift won a full acquittal for the widow despite government misconduct.
Charles Swift is director of the Dallas-based Constitutional Law Center for Muslims in America. He led the defense team in the month-long Orlando trial of Noor Salman, the widow of Pulse nightclub shooter Omar Mateen.
Swift has an enviable record of success in securing justice for unpopular clients. As a Navy judge advocate general, Swift was a member of the defense bar at Guantánamo Bay, where his advocacy won freedom for a Yemeni detainee in a precedent-setting Supreme Court ruling.
Following the Pulse shooting, Salman was charged with aiding and abetting, and obstruction of justice. In his conversation about the trial with Peter B. Collins, Swift details major misconduct by the FBI and prosecutors, who introduced into the record Salman’s “confession” which they knew was riddled with falsehoods.
Swift says that the prosecution strategy was to put Mateen on trial posthumously, in the effort to prove that his wife helped him scope out targets for his deadly intentions. But this led to major revisions in the “official” narrative: contrary to reports published immediately after the shooting, Mateen was never a patron of Pulse; in fact, he had never been to that location until the night of June 12, 2016.
Swift explains how Salman’s cell phone data cast doubt on the government’s claim that she was at the club; this was one of many false claims included in the “confession” produced after hours of interrogation that the prosecution submitted at trial. Swift was able to disprove almost half of the statements in the prosecution document.
Just as the defense was about to rest, prosecutors notified the Swift team that Seddique Khan, father of the shooter, had been a paid FBI informant for over 11 years. Swift says that his investigation and trial tactics would’ve been different if the government had properly shared this information, and that it’s a likely “Brady” violation. (From Supreme Court ruling in Brady v. Maryland: “suppression by the prosecution of evidence favorable to a defendant who has requested it violates due process.”)
Swift deplores the obvious double standard: no penalties for egregious government misconduct, but when the defense was delayed in delivering a psychological evaluation of Salman, it faced sanctions from the court.
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| Peter B. Collins: | Welcome to another edition of Radio WhoWhatWhy. In San Francisco, I’m Peter B. Collins. |
| At the end of March, a jury in Orlando Florida acquitted Noor Salman. She is the widow of Omar Mateen, the accused Orlando Pulse nightclub shooter. It was a remarkable case, with incidents of gross government misconduct, and the attorney who defended Noor Salman joins me today. Charles D. Swift is the executive director of the Constitutional Law Center for Muslims in America. He’s based in Dallas, and prior to that, he served in the Navy as a Judge Advocate General. He was assigned to Guantanamo, where he represented Salim Hamdan, and that was the rather remarkable case that went all the way to the US Supreme Court and required changes in the military tribunals at Guantanamo. Mr. Swift, thanks for being with me today. | |
| Charles D. Swift: | You’re welcome. It’s a pleasure to join you. |
| Peter B. Collins: | And you have a distinction here because you won one of only two acquittals of the almost 183 cases that have gone to trial on so-called domestic terrorism charges since 9/11. |
| Charles D. Swift: | Well, it is a distinct case in that respect. I think it also showed what we were up against and why the government, I think, proceeded even though they didn’t have the facts for it. |
| Peter B. Collins: | Now, in your opinion, was Omar Mateen himself really on trial and was his widow simply a proxy because the community wanted someone to take responsibility for this crime? |
| Charles D. Swift: | Well, in part is … yes, Omar Mateen was on trial. That was actually necessary in the case. To answer the first part of the question. Then I’ll go to the second part. |
| Miss Salman was charged with aiding and abetting. And aiding and abetting requires the government to prove the underlying crime, in this case, material support of terrorism toward ISIS by the attack on The Pulse. | |
| So they did have an awful lot of the case focused on Omar Mateen and the government did their job by proving his guilt. Where they fell apart was in proving her guilt. And their temptations in the fact that Omar Mateen was dead, certainly in my view, drove the government to approaching a very weak case, hoping that the taint of Omar Mateen would just spill over onto his wife and a jury would forget about holding her accountable for what she’d actually done rather than just simply finding someone who would be accountable for The Pulse in a court of law. | |
| Peter B. Collins: | And, Mr. Swift, like many people, I followed the news accounts of The Pulse event and the investigation into Omar Mateen and it’s fair to say the Noor Salman trial significantly changed the narrative because news accounts had indicated that Omar Mateen had been a patron of The Pulse nightclub. That appears to be completely false. The accusation that he had cased the place, in advance, appears to be unsupported by any evidence and so this was a major shift in what most people believe was the narrative of some of those events. |
| Charles D. Swift: | It is and it shouldn’t be lost now on your listeners that this wasn’t something that was discovered only months, a year later after The Pulse shooting or during or just prior to the trial. |
| The government actually knew almost all of this within days. When Loretta Lynch spoke then in the … US attorney general spoke to the community, she already knew because the FBI knew, that Omar Mateen hadn’t cased The Pulse. That there was nothing in his cell phone records. They had obtained the cellphone immediately and had immediately, within two days, conducted the overall diagnostic which brought those things into real question. | |
| A cell phone, for your listeners, is a personal tracking device. Whether you choose to use it or not, we’ve given up a lot of privacy in the electronic age. And there are a ton of cameras as well around almost any metropolitan area, which combined with cellphones, can give you a very good idea of where people are, what they’re doing. And the government had devoted extraordinary amount of resources immediately to this. That’s to be expected. One would criticize them if they didn’t. | |
| What one… Ask the next question though is, having known all this, why didn’t you tell the public? | |
| Loretta Lynch promised the LGBT community that she would give them answers. There were no answers forthcoming afterwards. The reason, I believe, is because it did not support the narrative the government wanted to portray if they were going to charge anyone. | |
| See, the government, on that very evening, had coerced, on the evening following the attack, had coerced Miss Salman into making statements that she was with him when he scouted The Pulse. That he’d showed her The Pulse’s website. That she knew The Pulse was the target. | |
| All of that was actually impossible because he hadn’t scouted The Pulse. He’d never been to The Pulse’s website and there was no … And his actions on that evening showed that The Pulse had been chosen at random after he projected his first target. | |
| So, everything that she supposedly knew was impossible and the government, of course, was aware that they had in fact, coerced a confession. That was not good news if you wanted to charge Miss Salman. So the government allowed a misperception to continue in the press. They just let people talk and they liked what they were saying and it fit the narrative they wanted even if it didn’t fit the facts. | |
| Peter B. Collins: | Equally, if not more significant, is that the FBI submitted false testimony and deceived the judge in the case for at least a year. |
| Charles D. Swift: | Absolutely. You know, during this entire part on it is that the FBI and all known parts on it, they submitted when holding her that she had in fact scouted The Pulse. This was a representation they made in San Francisco. They being the US government. Based on the a proffer of what the evidence would show. |
| The government knew that the evidence wouldn’t show that. The government tried to walk it back at subsequent hearings by saying she stated it. Which they had coerced but they don’t give any context that “well, we know that’s false.” They play a careful semantic game in each part to try and put guilt on Miss Salman because the truth, as the jury found, largely exonerates her. The government didn’t like that narrative. It wasn’t helpful to them. So they played the game on this part and they had significant abilities to do it. | |
| When they would say, “Okay, well, all of this is classified because we’re investigating national security.” So the media doesn’t get access to it. | |
| When I received the discovery material, well it’s all protected. You can’t talk about it in the public. You’ve received this information in a way that you can’t talk about it. | |
| So they left the public with a misperception about the case. Their hope is what I call cognitive dissonance that if … Well I don’t call it cognitive dissonance, others refer to this phenomenon, is that once you get a narrative, Omar Mateen attacked The Pulse nightclub because he was a fundamentalist Muslim who hated gay people and his wife knew about it and helped him. That’s the narrative. Okay? | |
| Now what happened, but once that narrative is in place, you have the real problem that people, once they’ve accepted it, don’t want to accept facts to the contrary. | |
| The gay community in Orlando, members of it accepted the facts they were told. They sat in the trial, they saw what had happened. Other members, however, who had spent less time in the trial continued to rail against it because it didn’t fit the narrative. It didn’t make it less tragic, it didn’t make it … It’s a senseless, horrible tragic act of which the LGBT community was the victim and suffered. It just wasn’t perpetrated on the narrative… | |
| Peter B. Collins: | Now… |
| Charles D. Swift: | …that they’d embraced. |
| But they didn’t want to give it up. And the government used that idea to try to exploit the situation to get a conviction. | |
| Peter B. Collins: | And to what extent did the government use this statement? And I understand from news accounts, that during the trial, you put up a summary of Noor Salman’s alleged FBI confession or statement, and that over time you redlined the false elements, and that by the end basically half of it was provably false. |
| To what extent was this, in your view, an intent to entrap her, if you had decided to put Noor Salman on the stand? | |
| Charles D. Swift: | Well, if I decided to … Entrapped to me is a weaker word, in the part is that they wanted to say, “Well you said this, so you said that, you’re lying now, or you were lying to them,” in that process. |
| The choice to put Miss Salman on the stand, I start every case with the idea that my client’s going to testify. And then I work very, very hard. Because my defense is not what I think up. My defense is what my client tells me happened. And then I work very, very hard to see if I can tell that story without them testifying. Because if I can get it from third parties or from the evidence, it’s stronger because, you know, they have a motive to lie. Miss Salman wasn’t lying, as I proved. But, as we set out in the court, but you start on that. | |
| I think the government’s whole set up of the part was that they wanted to ride the prejudice against her and then say, “Hey, I know we didn’t prove that but you should convict her anyway because this was a really horrible attack.” | |
| They knew that they … The first four days, or three days and half days of the trial, we’re seeing horrific photos of bodies on the ground, blood everywhere. This was, it is incredibly gory. Hearing from victims and how they had suffered during this attack. And they’d hoped that sympathy would, for those victims, would call for finding someone, anyone, guilty for this because somebody needs to be punished. Rather than go to the simple … And we were ready to stipulate that this was a terrorist attack. We offered that in the very beginning. We said, “We’re not here to defend Omar Mateen.” | |
| Omar Mateen is not my kind of client. I would never represent him. I’m in a fortunate position where I get to choose who I represent. And he would not have fallen into the realm of people that I would want to defend. I just don’t feel I’m well suited to it. But he, in that context, we were very willing to stipulate to those things. | |
| The government nevertheless said, “No, no, no. We have to prove them.” | |
| And their hope was that the jury would be so incensed by the blood and the gore that they would not apply reason when it came to Miss Salman. That hope was destroyed in the second week of trial in this process, despite the fact that we were trying the case less than a mile and a half from where everything had happened. It was an extraordinary environment. | |
| The Orlando media themselves, the national media which had not been tracking the case quite as closely in conversations, was like, “Where’s the case against Miss Salman?” | |
| The Orlando media was not worried to give that up. They continued to press. It had to be, “We need justice. We need justice. We need someone to pay.” | |
| And because she was Muslim, because she was married to him, because she’d been there, she’s the eligible stand-in. The wife will stand in for the husband and pay. And the government was seeking life imprisonment. The same sentence they could’ve gotten for Omar Mateen under 2339B. You know, that part was … Ironically he would not have been eligible for the death penalty had he survived under the statute which they could try him for. The State of Florida could’ve tried him for the death penalty but, for murder of 49 people. Although one has real questions on the fairness of the death penalty, there are some cases that probably fall into, unless there was an absolute abolishment of the penalty, one that would fall in. | |
| The government here wanted to take the forefront, take this case, and try it under 2339B and do this. | |
| Now, there was another motive for the government doing this beyond just appeasing the community. Omar Mateen was someone who had been on the FBI’s radar. Much like the Parkland shooter should’ve been on the FBI’s radar. | |
| Omar Mateen was someone who’d been turned in for making terrorist type statements. He’d been recorded making those statements. He’d been interviewed by the FBI about those statements. He’d lied to the FBI about those statements and he subsequently admitted that he lied about those statements. | |
| Peter B. Collins: | And Mr. Swift, if I may just inject a little context here. Omar Mateen was a security guard for a firm that had a contract with the Port St. Lucie courthouse. |
| Charles D. Swift: | That’s right. |
| Peter B. Collins: | And he worked alongside sheriff’s deputies who I presume secured the courtrooms and worked as bailiffs and that sort of thing and there were personality conflicts between Mateen and some of these sheriff’s deputies and as I understand it, he then, to get them to back off, claimed that he had connections to terrorist groups. Is that accurate? |
| Charles D. Swift: | Yeah, that’s one version of it. In either version, we’re accurate on the part that he had contact … That he was in the employment part on it. He later claimed that he made those comments to get them to back off. That they were superfluous and part of it, there is certainly is a reasonable interpretation given that his claims were absolutely false. Nevertheless, when the FBI interviewed him, there was concern level on him certainly because he was angry. If nothing else, he was angry at the sheriff’s department et cetera, and all of this had a detrimental effect on him. Despite the FBI’s choice not to charge him for the false statements that he’d made to them. In this context, one doesn’t get the ability to deny making the statements at all, which is what he did originally. It’s certainly for the president of the United States, while his lawyers aren’t excited about him being interviewed by the special counsel. Lying to the government, even if it is … The actual conduct isn’t a crime, or you were justified in it, doesn’t matter. You lie, you lie, and it’s punishable under the US code. |
| So the government could’ve taken that option. They chose not to in this case and they dropped him from continued observation. He suffered because he was removed from that detail and put on a gate guard for a golf community instead. He remained an armed security guard but he was moved. He subsequently was denied entry into the law enforcement academy. Right before the attack. | |
| What becomes clear is that Omar Mateen was motivated, not out of Islamic fundamentalism, but out of what he felt … And this is true of almost all mass shooters. Some perceived unfairness. | |
| Whether we look at the Parkland shooter, Valentine’s Day was what set him off in his perception that … At least that’s what’s believed at this point, this perception that he had been wronged at this school on Valentine’s Day. He was angry with them and he attacked. These motives don’t … They can be fairly trivial. Going all the way back to the original shootings in Colorado. These things can motivate people to do the unthinkable. | |
| But it wasn’t Islamic radicalization per se that had pushed Omar Mateen into this. He actually fit the pattern of a school shooter et cetera. | |
| The FBI … Or the other type mass shooters. The FBI didn’t look for that because that’s not what was on their radar. On their radar was, okay is he being a radicalized? And they needed to keep that narrative. To keep the narrative, they needed to blame somebody else other than themselves, is my belief. That’s absolutely my belief. | |
| Peter B. Collins: | And Mr. Swift, this is the perfect point to introduce what you learned very late in the trial. |
| Charles D. Swift: | Yes. |
| Peter B. Collins: | On Saturday night, you got an email from the prosecution side acknowledging that Omar Mateen’s father, Sadiq Mateen, had been a paid FBI informant for over 11 years. |
| Charles D Swift: | That is correct. |
| Peter B. Collins: | And this had to come as a shock to you. And let me first ask, is this first and foremost a Brady violation? Did the prosecution, unethically, suppress information that should’ve been shared with your defense team? |
| Charles D. Swift: | Yeah. We believed it was and we filed a motion on it. The court disagreed though commentators who have looked at it since, in the legal community, law professors, respected counsel et cetera, who talk about rulings in courts, have almost universally agreed that it was a Brady violation. |
| Brady v. Maryland is the Supreme Court decision. Well you have to turn … The government has to turn over evidence that’s potentially favorable. In our view, there were two parts in it because it gave the FBI a very strong motive to blame someone else. | |
| Omar Mateen had as much contact, in one sense with his father, as he had with his wife. And he certainly confided far more in his father than he did in his wife. His wife was somebody he cheated on. Somebody he had contempt and little respect. Though she loved him, he utilized that to exploit her. | |
| His father on the other hand was in a position of some level of influence in his life and he had had contacts with him. | |
| Apart from being a paid informant, we also learned that his father had been subsequently placed under investigation for payments he’d made and statements he’d made prior to the attack on The Pulse. | |
| Peter B. Collins: | These were related to groups in Pakistan and Afghanistan, correct? |
| Charles D. Swift: | Yes. |
| Peter B. Collins: | Mm-hmm (affirmative). Okay. |
| Charles D. Swift: | Well actually the payments were to groups in Turkey- |
| Peter B. Collins: | Oh. |
| Charles D. Swift: | Were to Turkey and to Afghanistan. Turkey’s notable, not that Turkey is a hotbed in and of itself, but it’s the gateway to ISIS. |
| Peter B. Collin: | Mm-hmm (affirmative). |
| Charles D. Swift: | And ISIS’s most significant presence outside of Syria and Iraq, to which the gateway is, everyone agrees, is Turkey. The other gateway … The other significant presence of ISIS is now in Afghanistan. |
| So, if you’re looking at ISIS and you’re looking at money payments and you’re looking at things you can’t explain and you’re looking at somebody who is now interested in them, and if you were even pursuing the radicalization theory, all of this would tend to go that, his wife’s not part of this, his father is. Which to us was exculpatory on the process and the government should have turned it over. | |
| Peter B. Collins: | How would your case have been different had you known of Sadiq Mateen’s relationship with the FBI before the trial began? |
| Charles D. Swift: | Well, a couple of things. A, he wouldn’t have been on our witness list, he was. B, on the part of that, he was also on the government’s witness list, interestingly enough. And under a separate case, they had to turn this over if they called him. The government only turned this over because they realized under Giglio, which is a separate case, that they needed to get the information about a witness that would expose bias. On the part that’s a progeny of Brady. |
| Their part on it was, this was an exculpatory, in the part. But our case would have differed in the part is, one of things, and it’s hard for me to say exactly how, but it would’ve been different in the sense that what we did in the Salman case, is investigate. | |
| All the things that we’ve learned were either buried in more than a 100,000 pages of documents. There was more than a terabyte of total data turned over to us. All of it, generally unlabeled. Think of it as your … 100,000 pages is a lot. Think about your office filled with pages of … Stacking up to the ceiling on a box and you have to go through all of that. And you have to find in it, you have to redo the investigation of which they give you nothing other than the pages. | |
| In addition, we hired a private investigator who was a former FBI agent and we set out diligently to find and investigate people and to find out what was going on. | |
| But Omar Mateen’s father was not ever a subject of that investigation because we didn’t know that he would be relevant to it. We certainly would’ve done a lot more on it and pursued areas that we looked at and said at the time, “Oh well, he called his father a whole lot. Big deal. He is his son. Why do you care? Oh, his father was outside the country right before the attack. Big deal. Why do you care? What was he doing there? I don’t care.” Because there’s no reason to investigate that, at that point. You have limited time and limited resources. Had I known for certain that he was an undercover operative for the FBI, there’s a whole lot of questions that I’d be asking on whether this guy is going rogue. Others have, in this process. | |
| I don’t know that he had or he hadn’t. He may have been absolutely on point. We don’t know on that. | |
| Peter B. Collins: | And certainly- |
| Charles D. Swift: | We certainly would’ve investigated it. I don’t mean to insinuate that he did, that he had in fact done those things. What I’m pointing out is that we didn’t get the opportunity to investigate it. At that stage, the question is, Brady doesn’t say, “Oh well, we don’t think it is. It says could this lead to discoverable information?” And our view on it was absolutely it could. And so we looked at withholding it. |
| Also though is, let’s step back and understand why the government might not want to talk about it. It’s embarrassing. At a very minimum, that’s what it is. | |
| Peter B. Collins: | Yes. |
| Charles D. Swift: | It’s embarrassing. Because the government has maintained to the Islamic, American Islamic community, and to civil libertarians, when we dispute the informant program, whether it’s actually valuable, does it actually do anything? Is putting people into mosques to create hate and discontent, is that helping? |
| The government comes back again and again and says, “It is absolutely necessary. This is the only thing that keeps America safe.” | |
| Okay, let me get this straight. Let me just understand here. The worst mass shooting at the time, the worst terrorist attack since 9/11 and the guy’s father was an informant. Who are you protecting again? What attacks are you actually stopping with this program? | |
| And it’s not like they were estranged. They lived blocks from each other and talked on an almost daily basis. His father’s the one who got him out of it. So, huh? | |
| Peter B. Collins: | Now, now please- |
| Charles D. Swift: | All of this, all of this- |
| Peter B. Collins: | Mr. Swift, please expand on that a moment because that’s what I wanted to ask you about. |
| Charles D. Swift: | Sure. |
| Peter B. Collins: | Did his father … We know that Omar Mateen had at least two contacts with the FBI prior to the events at The Pulse and that the father, as an informant, may have been able to straighten things out for the younger Mateen. |
| Charles D. Swift: | It’s almost … You know, that one I’m not at all, I don’t have the same reservations. I think his father did. In fact, the reports are very clear that they had conversations with his father, that the intelligence people who were evaluating Omar already had his father as part of it and that fits a pattern. The FBI doesn’t want to look at things that aren’t going … The questions that come up. They love the program and they’re not going to do anything to jeopardize the program. |
| Here they had somebody who was in it, and I presume they believed was valuable. So his wishes certainly played quite a big part of it, certainly the FBI … Omar Mateen learned was motivated to go in and apologize and give an explanation rather than to continue to deny these after he talked to his father. His father had talked to the FBI prior to that. So he sent him in. He wrote a letter of apology. He did all of these sort of — | |
| — the normal person who didn’t have an informant for a father would not get to do. They took all of that and closed the case. They even told his — “Hey look, these aren’t substantiated, there’s no problem with him. You have the sheriff’s deputies are upset but it’s not a problem to re-assign this guy and continue to allow him to have a weapon and continue to allow these sort of things.” | |
| That in my experience is atypical of such an investigation in the part. The only thing I can attribute to the atypical nature of it, that … And I’ve been doing this now for, since Hamdan, I’ve had only one of these types of cases at all times in my legal career since. But I’ve had a lot of the cases where we’re in the pre-investigative stage, or in the investigative stage rather than the indictment stage, and I know how difficult it is to get out of the room when the government believes you lied. It’s almost impossible. It is difficult and again, I refer to you to why the president’s attorneys are not excited about him going in and doing an interview. I have to say, if I were on that team I would be absolutely terrified of it. Because I go, “Okay, these interviews, if they go bad, they go real bad. And when the FBI’s thought that you lied to them or the justice department feels that you lied to them, they come after you.” That’s just the basic way it is. | |
| Peter B. Collins: | But what about- |
| Charles D. Swift: | It is better to keep your mouth shut. |
| Peter B. Collins: | What about when the FBI lies to a federal judge? What happens? |
| Charles D. Swift: | Almost nothing. There is the Hatch Act. Whether Salman pursues that or not, will be up to her and it’s not something that I ordinarily do. But one of the things that for prosecutors and the FBI is, there is no real consequences for these violations. |
| The FBI, in part, doesn’t take significant hits to … Nobody gets sanctioned. Nobody will, after it’s over, do we come back and say, “You did bad.” | |
| No one comes into it. They go, “Well, that’s okay. Yeah.” But in the history of these types of things, there have not been significant sanctions brought down on prosecution in any team. That’s not just the terrorism cases. | |
| Peter B. Collins: | Yeah. |
| Charles D. Swift: | That’s almost every case. |
| Peter B. Collins: | Right. |
| Charles D. Swift: | On the part. Whether it was the late Senator Ted Stevens where the government hid, lied constantly in his trial, resulting in a conviction. You may think what you want of Senator Stevens’s politics. He wasn’t guilty of the crime. Period. End of story. I can say that without reservation. And the government’s conduct was abominable. In trying to get a scalp, yet they faced no sanctions for it apart from losing his conviction. |
| In other words, the incentive to cheat is high. At worst, you lose a conviction you probably wouldn’t get. Absent cheating. | |
| If you do cheat and you get caught, nothing happens. You know the part … So it literally comes out on the part that goes, “If you ain’t cheating, you ain’t trying.” | |
| As opposed to defense counsel. On the other hand, we sit in sanctions. I’ll give you the example on this very trial. In this very trial, we were given … Remember those 100,000 pages? Okay, we were supposed to digest all of that and have our experts’ reports due in less than three months. Understanding. Now we went into high gear. One of the critical experts was a doctor named Dr. Frumkin. And his schedule allowed him to evaluate Miss Salman because we wanted to see, why would she confess falsely and one of the things … A lot of psychological testing revealed why she did that. And he went through his testing and what not and we anticipated that we would have the report in. Okay? | |
| So, Dr. Frumkin completes his reports, I get the report and he says, “Hey, I absolutely have these opinions. She is susceptible to coercion. These sort of things, a couple of the tests I think need to be rerun because she was overly compliant on the test. In other words, she was absolutely on it. She went ahead and answered every question yes. She shouldn’t have done that. She tends to, if it’s suggested, answer affirmatively. We’ll give her some other instructions and expand the test question part so that we can get valid results. Okay? I tell the government, I need to rerun it.” | |
| The government complains and says, “Well this report is preliminary because they haven’t completed final testing.” Nothing in the final testing changed it. | |
| The judge hauls me in for sanctions for misrepresenting that I would have the report due on the 30th of July, even though I had furnished a complete report. He had indicated that these were his opinions, that he might modify them if further testing. This was … Yeah I was going to be held in contempt. I had to beg and plead and had to hire another attorney to say, “Hey, this guy operated in absolute good faith. He believed he had it. He was told by the expert he would have it. He put forward the expert’s report as written. He didn’t try and alter it and nothing substantially changes and it doesn’t affect the timeline.” | |
| Nevertheless, the judge is on me. Let’s look at the other hand on this. On how this is played. | |
| The government tells a court in San Francisco that the Mateens, that Omar Mateen and his wife scouted The Pulse. They know that is a lie at the time they do it. Then they will get up and say that they told the magistrate court judge that. They further play around with the judge, on the part. They withhold the … Oh yeah, the text messages between them are actually far more exculpatory than they’ve been held in the media. | |
| But we won’t tell the magistrate that, we’ll let only the ones that are in the media be considered. They withhold, they lie, they play a game to get her in jail because they understand that the possibility of conviction goes up dramatically if you’re incarcerated prior to trial. You can’t work with your attorneys nearly as easily. | |
| The government knows who are there. Determined now you wouldn’t be in jail if you didn’t do something. You know, it’s a huge part on having somebody found in it and they wanted to make sure that she was in jail. Even though they had known where she was every single day after The Pulse because she and her family told them. Voluntarily. | |
| But they nevertheless wanted her in jail. Because it would help their case and they talked about those things. | |
| Now, where is the contempt sanctions hearing, for the government? There isn’t one, is the answer. There isn’t one because one does not do that to prosecutors. Prosecutors live in their own world and in part on it … For those of us who do this, it is … I don’t care what the rules are. Like anybody playing in a basketball game, I never argue about fouls, as long as you’re calling it the same way. As long as when I … If it’s a touch foul when I do it, then it’s a touch foul when they do it. If we’re calling it rough, okay. Just call it the same way both sides, I don’t care. I just want to know, you know on these parts on it, that if I’m expected to have absolute candor and we can question on candor. What I absolutely believe to be the case, substantially complied with, and I’m not being candid, and force me to spend money, my own money to represent myself during the course of this hearing and yet the government’s absolute parts … Government’s statements go unnoticed or un-noted. The government may get criticized but they don’t get sanctioned, is something that needs to change in this, because if the rules don’t change we’re going to continue to have cases like Salman. | |
| Peter B. Collins: | Mr Swift, this is the reason that I wanted to give you an opportunity to address these matters because I’m deeply offended at the double standard that is so clearly evident here. |
| Charles D. Swift: | It is a double standard on the part. And let’s understand, in part of the thing is, a defense counsel, constitutionally, the criminal case, is supposed to … We’re supposed to advocate on behalf of our client. That’s what we’re supposed to do. You are to take on guilty clients and if the government hasn’t proven it, in this case, I didn’t have to. But if the government hasn’t proven it, you’re to argue that they should be acquitted even if you know they’re guilty. That’s the standard for a defense counsel. Because that’s what the right to counsel under the sixth amendment … And there’s the Supreme Court has said often, and repeatedly, the sixth amendment doesn’t mean only innocent people get counsel. And counsel means you argue for them. |
| On the other hand, a prosecutor’s job is to advance the truth. That’s their job. This system gives extraordinary discretion to prosecutors. Extraordinary. They can decide who they’re going to charge and who they’re not going to charge. Who they’re going to investigate and who they’re not going to investigate. | |
| Indictment, in and of itself … You know Miss Salman, thank God, is home with her child. But, for a year, she wasn’t. More than a year. 14 months. She was in jail. For 14 months of her life and her son’s life, they will never get back. They don’t get that back. It isn’t suddenly all made right on the end of the verdict. She suffered extraordinarily. Imagine being innocent and sitting in a cell knowing that you might spend the rest of your life there. What does that do to you? | |
| And in all of this, the government wasn’t pursuing the truth. They, in fact, what they didn’t like was the truth. And there’s another detail from the trial that really sets that out. | |
| Critical in this trial was something that would seem somewhat inconsequential. Miss Salman, on the evening in question, called her mother-in-law because her husband had told her that he was going out with Nemo. Nemo was a friend of his. On the part of Miss Salman … He actually didn’t live in Florida at the time, he’d moved to Maryland. But Miss Salman didn’t know that. Miss Salman believed it because it was a story he’d given many times. Omar Mateen had learned to use that excuse for why I’m not going to be home tonight. He had used that multiple times to … When he was stepping out on Miss Salman. When he was conducting infidelities, if he couldn’t explain an absence then I’m at dinner with Nemo. Nemo knew that. | |
| In the course of it, we discovered the existence of this cover story. The government knew about that, that Nemo was the go-to excuse for Mateen two days, again, two days as the investigation began because he told them. | |
| They subsequently found out that everything that he told them was true. Because, Nemo knew details that only he could’ve only learned from Omar Mateen. He wasn’t making this up. Omar Mateen had told him about the type of women. He told him where he’d met them. And those that when to do on the social media and they interviewed the women and they found out, you know what? He’s right. You know what the government did? Say, “Oh well we’ll give this up.” Nope. They charged it and then they did everything in their power, including a continued investigation of Nemo, to keep him off the stand. | |
| They argued at every stage that he shouldn’t testify. That the jury should never know that this was a false statement. That he had used this as an excuse. They did not want the jury to know the truth. Their part on it was … Here even the court became incensed that at some point he said, “What are you trying to do? Your investigation confirms that this is the truth and yet you argue against it.” It’s a relevant truth. And the government, from their viewpoint is, “Yeah but it’s not a helpful truth. It hurts our case and therefore the jury shouldn’t know about it.” | |
| That, now you know what? As a defense counsel I’ve done that. Okay? Sure. Done it it repeatedly. When I seek to suppress the search of my client’s home because it violated the constitution, I’m basically saying, “They may have found things I didn’t like.” I don’t try and suppress searches where they didn’t find anything. I highlight those searches. | |
| You know, when they found something I don’t like, “Yeah but the jury shouldn’t know about that constitution.” That’s inside the duty of the defense counsel. It’s not inside the duty of the prosecutor. | |
| The prosecutor’s role is to bring out the truth. The government here, instead of saying, “Hey, we’ll bring the truth out.” If the truth hurt them, they obscured it. If the truth would embarrass the FBI, they obscured it. If the truth would undermine their claims, they obscured it. And at every stage on it, they did not like the truth. And that to me was striking in this case. It’s been striking in several of the other cases that are acquittals. | |
| You know what all those cases have in common now? | |
| Peter B. Collins: | What’s that? |
| Charles D. Swift: | They all had dedicated defense teams either because the person could afford them or because some group took it up. |
| We had, into this case, between our fellows who are also practicing attorneys, myself, Linda Moreno, local counsel et cetera. | |
| Well over 2,000, closer to 3,000 hours working on this case. To get through all that material. To do all the investigations. To write all the motions. Basically that’s a year and a half of a high-billing attorney’s life. Year and a half. We were given seven months to get it done in. But a year and half. | |
| When one looks at it in that context, you take it on and go “wow”. The government, their belief was why? They won’t have the time. The only times that these come out, this is a real question on it is, if they had had let’s say, just appointed an attorney who had 25 other clients who had maybe 300 hours to give to this case. Would they have been successful? Would any of this come out? | |
| And that to me is extraordinarily bothersome because I know that that is actually the norm. | |
| Peter B. Collins: | And Mr Swift- |
| Charles D. Swift: | That’s the norm. In a federal case or a state case. That’s the norm. That Salman is atypical because of the resources that were devoted to it. Hamdan is atypical because of the resources devoted to it. |
| In part, at least, because I’d become convinced that the resources need to be devoted to it but I lie awake at night about the cases I turn down. | |
| Peter B. Collins: | I can understand. |
| Mr. Swift, as we wrap up here, I see from your description of this case, the outlines of a creeping police state, the kind of east German Stasi control that we abhor and that we see as the antithesis of the American system. | |
| What is your characterization of where we are in terms of a police state? | |
| Charles D. Swift: | Well you know, the police state. I am still a great believer in America. For all her faults, I love this country. I think that there are some things that need to change though, okay, and that we should look and change them. And there are three that I’ll go toward. |
| First, I would hope that all Americans … You know I talk to my colleagues, Linda Moreno is actually a member of a group of barristers and others overseas that do international, things like that and I’ve gotten to talk to some of them and they tell me that one of the healthiest things in a British jury is that seven out of 10 British subjects doubt the government’s truth at the onset. In any case. Doesn’t matter. Terrorism … They just doubt the government. They no longer trust them. That’s healthy by the way. | |
| Number two on the part is how … Justice Brandeis said it a long time ago, he said: “Sunshine is the best disinfectant.” I think for far too long under the guise of national security, we’ve given the FBI a free pass. That’s not to mean that the men and women of the FBI generally aren’t good people working toward a good result. But this law enforcement agency is unique in the lack of scrutiny for what it does. | |
| DA, nobody else gets away with what they get away with. Philadelphia police, the Seattle, the San Francisco police, they do not have … They are subject to scrutiny. And that prevents or corrects an awful lot of these abuses. | |
| So the next part is, we need to re-look at what is being done in the name, how much is hidden from us in the name of national security. | |
| Peter B. Collins: | And let me just add that the last time I checked, 150 out of 150 times, when the FBI investigated itself, it found no wrongdoing by the FBI. |
| Charles D. Swift: | Of course not. Part of that is the problem. Sunshine, any the public needs to see and be, there has to be independent review. |
| The FBI’s structural part inside the country, et cetera needs to be put out. | |
| The last one is a structural change. Inside the FBI. The missions of an intelligence agency and the missions of a law enforcement agency are not the same on the process. | |
| If the FBI is going to retain intelligence oversight or domestic intelligence, they need to split this off. That’s how it exists in Britain. That’s how it exists everywhere because of the competitions. | |
| Law enforcement cannot exist in a plain where what they do, they’re able to hide it and this inner play right now permits the FBI, structurally, hide. And difficult questions to be asked. | |
| Great Britain, France, perhaps all of these agencies split, the western democracy split this out, we uniquely do not. We need to revisit that idea. | |
| That was an idea that J. Edgar Hoover grabbed and then immediately abused. We protect … Nothing has changed. | |
| Ironically, the president of the United States now complains about it because he’s subject to it. That’s one of the rare places where I find myself in agreement with him. | |
| How does it feel? Because you are being subject to the same part that my clients are and it doesn’t feel very good, does it? | |
| That’s why he already may well be … I’ve not concluded at all. I have no idea. The American public likely has no idea too because they hide what they have. That part on it has to change. It has to. | |
| Otherwise, the agency’s power … If they can do that in that, in such a large stage, imagine what they can do on a small one. | |
| Peter B. Collins: | And Mr. Swift, one friendly amendment perhaps a fourth change, don’t we need to require the FBI to record interviews with subjects? |
| Charles D. Swift: | Oh absolutely. That’s one last part of it. This one is a structural part. The FBI again, in keeping … They need to get all of these things or changes to a part. The FBI should have. They should join what every other law enforcement agency does. And that is record anything that occurs in an interview room inside their buildings. |
| The modern law-enforcement does this. They do it to prevent abuses. It’s like putting … Here’s the thing. Police officers now in San Francisco and around the country wear body cams and recordings. They will tell you now that initially they were reluctant. Now they think it’s a great thing. | |
| When somebody’s guilty, boy is that good evidence. And it’s preventative. It no longer puts pressure to look the other way if somebody’s abusive. You know, there’s this huge … The silence of the cops. If you say, “Hey look, I didn’t like what he did.” You’re going to be ostracized. Now you don’t have to worry about it. It’s self-polices. The videotapes police. | |
| The FBI uniquely does not want … Let’s go to the overall culture of not wanting self-police, of policing mechanism of them. Who’s watching the watchers is always the question in a democracy. | |
| Peter B. Collins: | Charlie Swift, the attorney for Noora Salman who won a remarkable acquittal in the case trying to tie her to her husband’s involvement in The Pulse nightclub shooting. |
| Thank you very much for joining us today and thank you for your work on behalf of Muslims here in the United States. | |
| Charles D. Swift: | You’re very welcome and it’s a privilege to do the work, quite frankly. |
| Thank you. | |
| Peter B. Collins: | Thanks for listening to this radio WhoWhatWhy podcast. |
| I always appreciate your comments and feedback. You can email peter@peterbcollins.com. And please do what you can to support independent investigative journalism here at WhoWhatWhy. |
Related front page panorama photo credit: Adapted by WhoWhatWhy from Charles Swift (CLCMA) and FBI van (Kim F / Flickr – CC BY-NC 2.0).
