In our estimation, Air Force lawyers got it half-right in their arguments Friday before the service's Court of Criminal Appeals in Washington, D.C.
As we noted last week, the arguments were connected to the courts-martial of Colonel Michael Murphy, the former Commander of the Air Force Legal Operations Agency. He faces multiple counts of conduct unbecoming an officer, failure to obey a general regulation and larceny, after it was discovered that he served as a JAG for more than 20 years without a law license.
But even if he is convicted, Murphy may never spend a day in prison, or suffer any other penalties. In September, the trial judge ruled that Colonel Murphy could not be punished, because defense lawyers have been denied information on his classified duties as a member of the White House Military Office. Murphy served with that organization before assuming command of the legal operations office in 2005.
Without information from the White House, the judge ruled, Murphy's lawyers could not present the "good airman" defense at sentencing, which might reduce (or mitigate) potential sanctions.
In their arguments last Friday, Air Force prosecutors argued that the trial judge, Army Colonel Stephen Henley abused his authority and failed to consider less drastic alternatives. They also claimed the judge's ruling set a dangerous precedent, suggesting personnel with classified backgrounds could be "immune" from prosecution.
We understand that attorneys often present the "worst case" in their arguments. But it's silly to say that individuals with security clearances--or those who serve in sensitive billets--are immune from prosecution. More than a few former intel types and snake eaters have wound up in Leavenworth, proving that you can successfully prosecute military members with covert backgrounds. As a result, we don't think the "immune from prosecution" argument will carry much weight with the Chief Appeals Court Judge, Colonel James Wise.
On the other hand, we believe the prosecution team is on solid ground in stating that Judge Henley overstepped his bounds. With a 20+ military career behind him, Murphy and his legal team can cite countless examples of his past, "exemplary" service in mounting the "good airman" defense.
With only a limited knowledge of the appeals court and its rulings, we can't say how Judge Wise will rule in this matter. But it is relatively rare for an appellate court to reverse a trial judge, in both the civilian and military justice systems. That's why we'd be surprised to see Judge Wise to overturn the decision of his Army colleague.
But this is one case where a reversal appears to be in order. Allowing Murphy to go unpunished --and retire with a full pension--would set the worst possible precedence.