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 Guantánamo (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 protégée 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 Guantánamo 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.
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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.