GTMO Postscript: Prosecutor Goes After Defense, Press

Friday, May 07, 2010 at 10:49 am

GUANTANAMO BAY — As an addendum to my piece this morning, it’s worth noting an unexpected and unusual attack on the integrity of Omar Khadr’s attorneys and the press corps here that Navy Capt. John Murphy, the chief prosecutor of the military commissions, issued yesterday afternoon.

After Col. Patrick Parrish, the military judge presiding over Khadr’s case, gaveled this week’s proceedings in Khadr’s pre-trial hearing to a close, both teams of attorneys trudged to the aircraft hangar that’s been converted into the press’s work area for back-to-back news conferences. Defense counsel had briefed us every day after court ended, and so attorneys Kobie Flowers, Barry Coburn and Army Lt. Col. Jon Jackson didn’t surprise us when they commented on the big event of the day — testimony from “Interrogator #1” that he threatened Khadr with rape and even death in Bagram in 2002.

But it was the first time that Murphy and his team held a press conference during the past two weeks, and he came out swinging. “What you heard was a summation of their closing argument,” Murphy said, accusing Flowers, Coburn and Jackson of improperly trying Khadr’s case outside the courtroom and calling it a “violation of that ethic that applies to all of us” barring lawyers from “prejudicing a criminal proceeding.” When pressed on whether he would refer the defense lawyers to some professional body for sanction, Murphy demurred: “All I’m prepared to say is that from my observation, I saw comments on the merits of the case and the merits of the evidence, and that operates to prejudice the accused. That’s not something we’re going to do and we’re not going to do it.”

In his general comments about Khadr’s case, Murphy denied that Khadr’s youth — he was 15 years old when captured by U.S. forces in 2002 — made his prosecution problematic. He warned about the policy consequences of such an argument, asking, “Is al-Qaeda going to start recruiting 15- and 16-year-olds?

But he ended his press conference with a firm defense of keeping Interrogator #1′s identity private, even though identifying information had come out in open court; the interrogator in question pleaded guilty in his court martial on detainee abuse and cannot be re-deployed (re-deployment was an issue Murphy cited as grounds for non-disclosure); and the individual in question gave an on-the-record interview to Michelle Shephard of the Toronto Star in 2008 saying he wanted to clear his name.

“We think that protective order should be enforced,” he said, not singling out any reporter or publication. “In these proceedings, the access has been extraordinary. You see so much. … Our position is, and I hope it would be given a lot of thought, that publishing identities carries some risk and the judge recognizes that risk when he issues these protective orders.” Asked how the media could formally file a challenge to the order, Murphy replied, “I’m not going to become your lawyer.”

Less than an hour after the press conference concluded, four reporters were informed by the Office of the Secretary of Defense’s Public Affairs office — to be very clear, a different chain of command than the one to which Murphy answers through the Office of Military Commissions — that they would be banned from returning to the base for publishing Interrogator #1′s name. Parrish has not issued any ruling that any reporter has violated his protective order.

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Comment posted May 8, 2010 @ 2:48 pm

His lawyers have been successful to-date forcing delay after delay. The longer they drag out this process the more Millions of Canadian dollars they will demand as soon as Omar sets foot on Canadian soil. Apparently his team are ready to sue the Canadian taxpayer for tens of millions of dollars. The fact of the matter is that he should not be allowed in Canada, and his entire “family of terror” should be deported back to Pakistan as well. In my opinion, if it was born a terrorist, was trained as a terrorist, killed as a terrorist and still wants to be a terrorist – it’s a bloody terrorist.

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John Glad South Dakota
Comment posted May 10, 2010 @ 1:36 pm

Funny how the Military Commissions prosecution has suddenly found a sense of professional ethics. In 2008, under the Military Commissions 2.0, the Chief Prosecutor and others violated the Army's Rules for Professional Conduct for Lawyers (RPCL) at least twice: First, by claiming that Mohamed Jawad, since released, “confessed” to the charges against him, and second, by distributing “talking points” before the explosive testimony of LTC Darrel Vandeveld, seeking to discredit his subsequent testimony. Both actions are expressly prohibited by the RPCL (Army Regulation 27-1; found at, not only because they have the potential to taint or influence the fact-finders in the case (in Jawad's circumstances, the Military Commissions panel that had long been chosen to serve and undoubtedly followed the proceedings in the media), but also because, as the Jawad case exemplied, such “confessions” may later be suppressed, as the Military Judge in Jawad's case in fact did, finding that they were the product of torture. Thus the already-identified panel members in the Jawad case unlawfully heard from media reports, specifically the Washington Post, that Jawad had “confessed.” As to denouncing a witness before he or she testifies, not only is it a violation of the express provisions of the RPCL, it is utterly unseemly for prosecutors to do so. Clearly, CAPT Murphy, who was assigned to the commissions when the Chief Prosecutor he succeeded made these comments, had no objection then, and neither did the current Deputy Chief Prosecutor, who was assigned to Jawad's case and read the “talking points” regarding Vanderveld to the assembled media as if he were not a prosecutor whose sole and highest aim is to seek justice, but rather a military parrot, unaware of or uncaring about the RPCL or even fundamental fairness. If anyone thought that the latest incarnation of the Military Commissions would be an improvement based upon the changes in the law and the hastily-released Manual for Military Commissions, they've overlooked one singular flaw: the same people who failed badly, despite breaking practically every rule in the book, in the MC version 2.0, are still running the MC 3.0 burlesque. Oh, and the former Chief Prosecutor? His total failure has been rewarded, not censured, by the Army's creation of a high-paying civilian job in the Army's Office of the Judge Advocate General, without competition, without any announcement, without following any legal formalities regarding employment by the Department of the Army, and for good reason: he's evidently teaching trial advocacy, of all things. That's good news for anyone persecuted by the Army….

Jerome Thompson
Comment posted May 10, 2010 @ 1:39 pm

Army Regulation 27-26 is the RPCL, but you're right. These rightly-embattled jumble of incompetents will lash out at anyone or anything, completely without consequence by DoD or the Army.

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Comment posted June 3, 2010 @ 1:12 am

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