In a development that will only fuel suspicions that the Obama administration is indeed planning to revive
the Bush administration's much-criticized system of trials by Military
Commission at Guantanamo (as flagged up by defense secretary Robert
Gates in testimony before the Senate Appropriations Committee last
week), I have just learned that the Commissions' Chief Prosecutor, Col.
Lawrence Morris, is retiring from active duty, and will be replaced by
Capt. John Murphy (US Navy Reserve). No formal turnover date has been
announced, but it is expected that the transition will take place over
the next two months.
Col. Morris took over as Chief Prosecutor following the resignation,
in October 2007, of Col. Morris Davis, who later dealt what should have
been a mortal blow to what little credibility the trial system had
-- in the face of widespread condemnation by legal experts, the
government's own military defense attorneys, several former
prosecutors, and the US Supreme Court -- when he explained that he had
resigned specifically because he had been placed in a chain of command
under William J. Haynes II, the Pentagon's General Counsel.
While lambasting the Bush administration for politicizing the entire
process, Col. Davis singled out Haynes for particular criticism,
because he had been pushing for the Commissions to allow the use of
evidence obtained through torture, in spite of his own opposition. He
later prompted Haynes' sudden resignation, when he reported,
in February 2008, that, in a discussion with Haynes about the Nuremberg
Trials, in which Col. Davis had noted that there had been some
acquittals, which had "lent great credibility to the proceedings,"
Haynes had responded by saying, "Wait a minute, we can't have
acquittals. If we've been holding these guys for so long, how can we
explain letting them get off? We can't have acquittals. We've got to
have convictions."
Under Col. Morris, around two dozen cases
were put forward for trial, although his tenure was dogged by
controversy regarding the role played by Brig. Gen. Thomas Hartmann,
the legal advisor to retired judge Susan Crawford,
the Commission's Convening Authority. Crawford, a protegee of Dick
Cheney and a close friend of David Addington, Cheney's Chief of Staff
(who remains in her job, despite the change of administration) has the
final say on which cases will proceed to trial, and is supposed to
provide the entire process with objective oversight.
However, as I discussed in an article last October, "The Dark Heart of the Guantanamo Trials," it is difficult to have any faith in her objectivity given her close connections to Cheney and Addington
(the architects of the Commissions), and the fact that Col. Davis had
criticized her for overstepping her administrative role. "[She] had her
staff assessing evidence before the filing of charges, directing the
prosecution's pretrial preparation of cases (which began while I was on
medical leave), drafting charges against those who were accused and
assigning prosecutors to cases," Col. Davis explained, adding,
"Intermingling convening authority and prosecutor roles perpetuates the
perception of a rigged process stacked against the accused."
Last year, when Brig. Gen. Hartmann was repeatedly criticized by
judges in the Commissions for pro-prosecution bias (and was ultimately
removed from his post, although he was retained in another advisory
role), it was difficult to escape the conclusion that, although there
was a catalog of complaints about his abrasive personality, he had
effectively been a sacrificial shield, set up to prevent scrutiny of
the chain of command that led from Crawford to the Pentagon's Office of
Legal Counsel, and on to Cheney and Addington.
In accepting the job as Chief Prosecutor, Capt. Murphy must know
that he is taking on a job that is fraught with difficulties,
particularly after Lt. Col. Darrel Vandeveld, who resigned as a
prosecutor last September, delivered a blistering condemnation of the
Commissions after his departure, stating,
My ethical qualms about continuing to serve as a
prosecutor relate primarily to the procedures for affording defense
counsel discovery. I am highly concerned, to the point that I believe I
can no longer serve as a prosecutor at the Commissions, about the
slipshod, uncertain "procedure" for affording defense counsel
discovery. One would have thought ... six years since the Commissions had
their fitful start, that a functioning law office would have been set
up and procedures and policies not only put into effect, but refined.
Instead, what I found, and what I still find, is that discovery in even
the simplest of cases is incomplete or unreliable.
In a submission in a court case in January, Lt. Col. Vandeveld further explained
that the Commissions' prosecution department was in a "state of
disarray" and "lack[ed] any discernable organization." He stated that
he did not "expect that potential war crimes would be presented, at
least initially, in 'tidy little packages,'" such as those that would
be "assembled by civilian police agencies and prosecution offices," but
was dismayed to discover that
the evidence, such as it was, remained scattered
throughout an incomprehensible labyrinth of databases ... or strewn
throughout the prosecution offices in desk drawers, bookcases packed
with vaguely-labeled plastic containers, or even simply piled on the
tops of desks vacated by prosecutors who had departed the Commissions
for other assignments. I further discovered that most physical evidence
that had been collected had either disappeared or had been stored in
locations that no one with any tenure at, or institutional knowledge
of, the Commissions could identify with any degree of specificity or
certainty.
However, if Capt. Murphy's record is anything to do by, this may not
disturb him unduly. Last summer, he was the lead prosecutor in the trial of Salim Hamdan,
one of Osama bin Laden's drivers, when he pushed aggressively for the
military jury to hand down a 30-year sentence to Hamdan, urging that
his "penalty" should be something "so significant that it forecloses
any possibility that he reestablishes his ties with terrorists." In the
end, of course, Hamdan was given a sentence of just five and a half years, and, with deductions for time served, was sent home to Yemen in November, to serve out the last month of his sentence.
Undaunted by this failure, Capt. Murphy recently surfaced as part of the prosecution team in the case of Omar Khadr,
the Canadian who was just 15 years old when he was seized after a
firefight in Afghanistan in July 2002. As Khadr's case is one that,
outside of the Pentagon and the corridors of power in Canada, has
attracted universal condemnation -- primarily because of the Bush
administration's neglect and abuse of a juvenile, and because of well-chronicled attempts
by the prosecution to suppress evidence vital to his defense -- it may
well be that, as a result, Capt. Murphy will pursue an aggressive
agenda if the Obama administration decides to ignore all sensible
advice to the contrary, and proceeds to revive the Commissions, rather
than pursuing those cases worthy of trial (somewhere between 25 and 50,
according to the best estimates) in federal courts on the US mainland.