SAN DIEGO (AP) — The trial of a decorated Navy SEAL charged with killing an Islamic State prisoner in his care begins Monday after months of turmoil in one of the Navy's most prominent war crimes cases.
The court-martial of Special Operations Chief Edward Gallagher, which begins with jury selection, has included the removal of the lead prosecutor for tracking the defense team's emails and suggestions by President Trump that he may pardon the defendant.
Gallagher has pleaded not guilty to premeditated murder in the killing of the prisoner in his care and attempted murder in the shootings of two civilians in Iraq in 2017 in separate incidents. Gallagher says disgruntled platoon mates fabricated the allegations because they didn't like his tough leadership.
His attorneys asked the Navy judge to dismiss the case because they say investigators and prosecutors withheld evidence that could help the defense, and violated his rights to a fair trial by embedding tracking software in emails sent to them.
The judge, Capt. Aaron Rugh, ruled this month that the prosecution's effort to track defense emails to find a news leak cast doubt on Gallagher's ability to get a fair trial and violated his constitutional rights against illegal searches and the right to counsel, by interfering with attorney-client privilege.
Rugh, however, refused to dismiss the case. Instead, he said he was taking steps to remedy the interference. He released Gallagher from custody, removed the lead prosecutor and reduced the maximum penalty he faces if convicted of premeditated murder to life imprisonment with possibility of parole — instead of no parole.
The judge also is allowing the defense to reject two more potential jurors without cause than usual during jury selection.
Evidence at hearings last month showed an intelligence specialist from Naval Criminal Investigative Service conducted criminal background checks on three of Gallagher's civilian attorneys and a Navy Times journalist who has broken several stories based on documents that are only to be shared among lawyers in the case.
Prosecutors downplayed the effort, saying they only gathered data, such as internet protocol addresses, and did not snoop on the content of emails. The government said the investigation did not find the source of leaks.
Gallagher's family maintains he cannot get a fair trial.
"The court's ruling, recognizing a direct violation of Chief Gallagher's constitutional rights but not dismissing the case, sends a chilling message to every man and woman in uniform," his family said in a statement.
The prosecution also tracked emails of the attorneys of Gallagher's commanding officer, Lt. Jacob Portier, who faces charges of conduct unbecoming an officer after being accused of conducting Gallagher's re-enlistment ceremony next to the Islamic State militant's corpse.
The defense discovered the tracking code hidden in a suspicious logo of an American flag with a bald eagle perched on the scales of justice beneath the signature of lead prosecutor Cmdr. Christopher Czaplak.
Rugh removed Czaplak from the case because he said the potential for an investigation of his actions could present a conflict. He said it was not within his power to determine whether Czaplak engaged in misconduct.
The judge said the effort also harmed the public's perception of the military justice system, which has been criticized for being ineffective and has gained few war crime convictions. One well-known book about the system is titled, “Military Justice Is to Justice as Military Music Is to Music.”
Republicans in Congress have lobbied for Gallagher, claiming he's an innocent war hero being unfairly prosecuted. Trump, who intervened to move Gallagher to less restrictive confinement in March, said last month he is considering a pardon for several U.S. military members accused of war crimes.
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