Breaking: New Chief Prosecutor Tapped For Military Commissions At Guantanamo
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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 discernible 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 U.S. mainland.