A Navy judge on Friday, June 7, denied a request by defense attorneys to dismiss the charges against Navy SEAL Edward “Eddie” Gallagher, accused in a series of war crimes including killing a teen ISIS fighter in 2017, but ruled that Gallagher could not be sentenced to life in prison without the possibility of parole.
Navy Judge Aaron Rugh ruled that the court-martial will start June 17 in San Diego, and that Gallagher will remain free from pretrial confinement.
As he decided on Monday, a new prosecutor will take over but because of the “strain of pre-trial publicity,” the judge granted the defense two peremptory challenges.
“The court has now recognized that Eddie Gallagher was victimized by a government campaign of illegal conduct,” Tim Parlatore, Gallagher’s lead attorney, wrote in a statement. “Conducting surveillance of defense attorneys, journalists and private citizens in violation of the Fourth, Fifth and Sixth Amendments of the U.S. Constitution was not only an attack on the Bill of Rights and a grave danger to the civil liberties of all Americans but an affront to traditional notions of justice.
“The court not dismissing this case sends a chilling message to every man and woman in uniform,” he added. “If the government can illegally leak to taint a jury pool, suppress exculpatory evidence, intimidate witnesses and spy on defense counsel and cumulatively these are not grounds for dismissal –what is?”
In his decision, Rugh found that email spying on the part of the Naval Criminal Investigation Service created a crisis in the public’s perception of the fairness of Gallagher’s case.
“The court determines that the NCIS intrusion placed an intolerable strain on the public’s perception of the military justice system because ‘an objective, disinterested observer, fully informed of all of the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding,’” he wrote in his ruling.
“Applying its broad discretion in crafting a remedy to remove the taint of unlawful command influence, the court directs that the court-martial is prohibited from adjudging a sentence that includes confinement to life without eligibility for parole,” he added.
The decision follows two prior moves by Rugh that Gallagher’s lead defense attorney, Tim Parlatore, had thought were a good sign the trial would be dismissed.
On Thursday, Rugh granted a request from Parlatore to move the start of the trial from June 10 to June 17.
On Monday, Rugh removed Cmdr. Chris Czaplak as prosecutor in the case after he established that Czaplak had been involved in spying on the defense. At the time, Rugh ruled that the threat of investigation into alleged prosecutorial misconduct against Czaplak could be seen as a conflict of interest.
Earlier, on May 30, the judge freed Gallagher from custody citing interference by prosecutors.
Parlatore had requested the dismissal, accusing prosecutors of a “rogue, relentless, and unlawful cyber campaign” that was used to find the source of news leaks discovered in January. He said that behavior may have violated attorney-client privilege and would hurt Gallagher’s chance for a fair trial.
“The Navy remains committed to an impartial military justice system that provides due process and fundamental fairness,” Brian O’Rourke, spokesman for the Navy Region Southwest, said Friday. “Chief Petty Officer Gallagher is presumed to be innocent, and the Navy will safeguard his right to a fair trial.”
Gallagher’s defense team also made motions to consider whether there has been undue command influence in the case from officials in Washington, D.C.
“If the U.S. Navy wants to show service members that it has any sense of justice, they will step in and make this right for the Gallagher family,” Parlatore wrote. “If they won’t, we will. We’ll take the legal fight to trial, we’ll get an acquittal, and then we’ll take the legal fight to every courtroom, every bar association until every individual responsible for this twisted and corrupt prosecution is held accountable under the law.”
Parlatore and Marc Mukasey, a member of President Donald Trump’s legal team, discovered evidence in recent weeks that showed Czaplak had attached tracking devices to emails that were sent to at least 13 attorneys and the editor of the Navy Times. Czaplak admitted to the tracking but downplayed the technology’s capabilities.
Gallagher, a Special Warfare Operations Chief, was arrested Sept. 11 while being treated at Camp Pendleton’s Intrepid Spirit Center. The 19-year Navy veteran is accused of premeditated murder in the fatal stabbing of a 15-year-old ISIS fighter. At the time, he was serving as a medic with Naval Special Warfare Group One based out of San Diego.
Two other charges — one accusing Gallagher of posing with the corpse of the teen while filming an enlistment video and one accusing him of flying a drone over the teen’s corpse — were thrown out during a Feb. 4 hearing.
Gallagher also is charged with shooting a man in June 2017 and a woman in July of that year, both civilians classified as “noncombatants,” according to charge sheets.
On Jan. 4, Gallagher was arraigned on charges of premeditated murder and assault with a deadly weapon. He pleaded “not guilty” to all war crimes he is accused of committing during his 2017 deployment in Iraq.
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© 2019 The Orange County Register (Santa Ana, Calif.)
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