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Breaking: New Chief Prosecutor Tapped For Military Commissions At Guantanamo

Capt. John Murphy led the prosecution of Salim Hamdan and is helping prosecute Omar Khadr, who was just 15 years old when he was captured.

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 (U.S. 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 U.S. 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 adviser 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.