Beating the Rap (Merry Christmas Edition)

The Air Force's case against Colonel Michael Murphy continues to unravel.

Murphy is the senior Judge Advocate General who was headed for flag rank until a background investigation revealed that he had been disbarred in two states as a civilian attorney. That led to the Colonel's dismissal as head of the Air Force Legal Operations Agency and criminal charges of conduct unbecoming an officer, larceny and failure to obey regulations.

But a funny thing happened on the way to the anticipated, slam-dunk conviction of Colonel Murphy. In September, the trial judge ruled that Murphy could not be punished, even if he was found guilty. Judge Stephen Henley determined that Murphy's lawyers could not present an adequate defense because the White House--where the Colonel worked from 2001-2005-- refused to release classified details of his duty in Iraq.

Without that information, Henley decided, Murphy's lawyers could not offer the standard "good airman" defense, comparing past examples of honorable service with accusations offered at courts-martial. Henley's ruling threatened to undermine the case against Colonel Murphy; thanks to the judge's decision, the disgraced JAG could be found guilty and still escape unpunished, his pension and other retirement benefits intact.

Now, the Air Force Court of Criminal Appeals has upheld Colonel Henley's decision. In a ruling released Monday, the service's highest appellate court determined that the judge was within his authority when he decided that Murphy cannot be punished--even if he is convicted. As Air Force Times summarized the ruling:

Chief Judge Col. James R. Wise presided over the case. In an 18-page decision, the court said a sentence of no punishment is an option of any case, so it is within Henley’s power to order that no punishment be given.

The court also said Murphy’s exemplary service to the White House Military Office, if the details were fully known, could lead a sentencing body to assign a sentence of no punishment.

And “because the government failed to submit the privileged information … it has significantly hampered [Murphy’s] right to have the sentencing body seriously consider a sentence of no punishment,” said the ruling.

While the Air Force hasn't released Judge Wise's complete ruling, that last sentence does a nice job of characterizing the legal quandary it has created. By holding the Colonel to the confidentiality agreement that he signed as a WHMO staffer, the organization has, in effect, thrown Murphy a legal lifeline, a "stay out of jail" card as some have called it.

As we've noted in recent posts, there are serious flaws in this reasoning. Over the years, the military has tried scores of officers and NCOs who held sensitive posts and the security clearances those jobs required. Despite obvious security concerns, those cases moved forward and most of the accused were convicted. There are no indications that any of their trials caused grave harm to national security.

In those proceedings, prosecutors, defense attorneys and military organizations worked together to ensure that the court was aware of honorable service by the defendants, without jeopardizing intelligence sources or covert operations. And, there's no reason that similar provisions can't be made for the trial of Colonel Murphy.

But the White House Military Office shows no sign of backing down, and there is little chance that the nation's highest military appellate court, or the U.S. Supreme Court, will overturn Judge Henley's ruling. Facing those barriers, Air Force prosecutors may well elect to drop the remaining charges against Murphy. Why go through with a trial when the Judge has already decided that the defendant can't be punished--even if the court finds him guilty?

That's exactly what Murphy's defense team is hoping for. At some point, they believe the Air Force will run out of appeals and throw in the towel, allowing their client to walk away a free man.

There is, of course, another alternative. President Bush, as the outgoing Commander-in-Chief, could overrule the White House Military Office, and order declassification of Murphy's service record in Iraq. That would remove the administrative barrier to the Colonel's planned defense, allowing lawyers to detail his Iraq service in open court--while ensuring adequate protection for the nation's secrets.

Unfortunately, Mr. Bush has demonstrated no interest in the case. He appears content to let Michael Murphy--a man he would have likely nominated for Brigadier General--ride off into the sunset, closing out a military career that was built on lies and deceit. It's entirely the wrong message to send to the troops, who have long believed that the military justice system fails to punish senior personnel, or those with the right connections.

And who can blame them? Among members of the armed forces, 2008 will be remembered (in part) as the year that a Navy officer was allowed to retire, despite her admitted role in a Washington, D.C. prostitution ring. And a few weeks ago, a jury at Fort Bragg acquitted an Army Staff Sergeant who threatened his commander, just weeks before the Captain (and another officer) died in a fragging incident in Iraq.

Now, it appears those travesties will be followed by Colonel Murphy's own escape from justice--another supposedly "airtight" case that somehow came unraveled. But there is one important difference. In the Murphy saga, the unraveling begins at 1600 Pennsylania Avenue.