A Return of the Murphy Defense?

Military law analysts will be keeping a close eye on the case of Air Force Chief Master Sergeant William Gurney. Last November, In From the Cold was one of the first media outlets to report that Gurney had been fired as Command Chief Master Sergeant for Air Force Material Command (AFMC), headquartered at Wright-Patterson AFB, Ohio. As one of only 12 command-level chiefs in the service, Gurney became one of the most senior enlisted members to lose his job in recent years.

At the time of his dismissal, there were reports that Gurney had (allegedly) been involved in inappropriate relationships with female subordinates. Now, those allegations have become the basis for legal action. In a press release issued yesterday, the command announced that Chief Gurney is facing various charges under the Uniform Code of Military Justice, stemming from the purported relationships. Specific counts include:

- Seven specifications of violation of Article 92, Failure to Obey an Order or Regulation and Dereliction of Duty.

- Two specifications of violation of Article 93, Maltreatment.

- Two specifications of violation of Article 120, Indecent Conduct and Wrongful Sexual Contact.

- Seven specifications of violation of Article 134, Adultery and Misuse of Official Position.

According to the statement, agents from the Air Force Office of Special Investigations began a probe into Gurney's conduct last November, after a junior female airman came forward with allegations of harassment. General Donald Hoffman, the AFMC Commander, relieved Chief Gurney from his position in late November, after the investigation began.

Hoffman also asked another organization, Air Mobility Command, for the administration of military justice in the case. General Hoffman made the request because he was Gurney's immediate supervisor at AFMC.

At this point, it's impossible to accurately predict the outcome of Chief Gurney's case. In the past, senior officers and NCOs accused of sexual misconduct have been given administrative punishment and allowed to retire. But with the USAF's renewed emphasis on accountability, Chief Master Sergeant Gurney is facing the very real prospect of a court-martial, conviction, and even jail time.

But Gurney may have a legal ace up his sleeve, based another, recent Air Force case. Earlier this week, the service announced that Colonel Michael Murphy, a former senior JAG officer, will be retired on 1 April, in the grade of First Lieutenant. Murphy faced multiple charges at court-martial last year, after it was revealed that he had been disbarred as a civilian attorney and practiced military law--without a license--for more than two decades.

While Colonel Murphy was still convicted, he still escaped punishment. Before Murphy's day in court, a military judge ruled that he could not be punished (even if convicted), because the defense team could not present the "good airman defense," demonstrating the Colonel's past, honorable service. The ruling stemmed from the White House's refusal to divulge details of Murphy's classified service in the White House Military Office. Without that information, the judge ruled, Colonel Murphy could receive an adequate defense.

How does that help Chief Gurney? Before assuming his post at AFMC, Gurney spent most of his career in the intelligence career field, including stints as the Command Chief Master Sergeant for the 67th Information Warfare Wing and its successor, the 67th Network Warfare Wing. Over the past decade or so, that unit has been involved in some of the most sensitive computer warfare and information operations campaigns conducted by DoD. In his role as a senior leader, Gurney almost certainly had some knowledge of those efforts, and assisted wing commanders in managing the personnel who conducted those campaigns.

During his long tenure in the spook world, Gurney was aware of (and probably "read into") various SAR/SAP programs relating to some of our most sensitive assets and capabilities. Given that reality, it's easy to envision the Chief's legal team asking for details of those efforts, so they can be used in presenting the "good airman" defense. That would put the Air Force in a bind; releasing the information would--potentially--jeopardize key intelligence programs in the IO realm. But without the data, Gurney's defense team could make the same argument as Colonel Murphy's attorneys.

And we know how that turned out. Call it the "Murphy Defense," the disgraced JAG's most lasting contribution to military law.