{"id":41262,"date":"2019-06-08T03:19:32","date_gmt":"2019-06-08T03:19:32","guid":{"rendered":"https:\/\/one.sightlinemg.com\/navytimes\/uncategorized\/2019\/06\/08\/navy-judge-wont-dismiss-seal-war-crimes-case-but-sanctions-prosecutors\/"},"modified":"2026-08-08T20:00:08","modified_gmt":"2026-08-08T20:00:08","slug":"navy-judge-wont-dismiss-seal-war-crimes-case-but-sanctions-prosecutors","status":"publish","type":"post","link":"https:\/\/one.sightlinemg.com\/navytimes\/news\/your-navy\/2019\/06\/08\/navy-judge-wont-dismiss-seal-war-crimes-case-but-sanctions-prosecutors\/","title":{"rendered":"Navy judge won\u2019t dismiss SEAL war crimes case but sanctions prosecutors"},"content":{"rendered":"\n

Special Warfare Operator Chief Edward \u201cEddie\u201d Gallagher is still going to trial on war crimes charges in 10 days but the judge overseeing his court-martial smacked the dwindling prosecution team with hefty sanctions after ruling they and federal agents violated his constitutional rights.<\/p>\n\n\n\n

In 21-page decision handed down Friday evening in San Diego, Navy Capt. Aaron Rugh found that a military prosecutor and senior Naval Criminal Investigative Service officials concocted a surveillance operation on defense attorneys, their experts and Navy Times designed to transmit HTML GET data to a law enforcement system for analysis.<\/p>\n\n\n\n

Rugh determined that scrutinizing the raw data, using only open source methods without a warrant or court order, \u201cmay have been able to reveal patterns in defense behavior resembling attorney work product” in a case where Gallagher, 40, has been charged with murdering a wounded Islamic State fighter and shooting at civilians in Iraq in 2017.<\/p>\n\n\n\n

Gallagher, 40, has insisted he\u2019s innocent and was framed by four disgruntled junior SEALs.<\/p>\n\n\n\n

Even before he issued his ruling, Rugh has watched the three-man prosecution team crack apart. On Monday, the judge booted<\/a> lead prosecutor Cmdr. Christopher Czaplak off the case for his alleged role in the surveillance operation with NCIS.<\/p>\n\n\n\n

He was replaced by Cmdr. Jeffrey Pietrzyk.<\/p>\n\n\n\n

The Marine Corps already had withdrawn Capt. Conor McMahon, leaving only Lt. Brian John from the original team that had toiled for eight months to put Gallagher behind bars for the rest of his life.<\/p>\n\n\n\n

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Special Warfare Operator Chief Edward \u201cEddie\u201d Gallagher in Iraq in 2017. (Photo provided)<\/figcaption><\/figure>\n\n\n\n

Although Czaplak and the NCIS officials appeared to halt their surveillance within three days because their plot was discovered, their operation violated Gallagher\u2019s Fourth Amendment rights against unreasonable searches and that \u201cconstituted a violation of a legal standard,” Rugh found.<\/p>\n\n\n\n

As Gallagher\u2019s legal team became mired in litigation over the surveillance operation, they also lost vital time needed to prepare for trial, sparked \u201cshort-term concerns regarding conflicts of interest between his counsel and the accused\u201d and temporarily robbed the SEAL of one attorney he chose because he had to leave to pursue another case,” Rugh determined.<\/p>\n\n\n\n

\u201cThese delays are wholly attributable to the government\u2019s action,\u201d the judge wrote.<\/p>\n\n\n\n

Most damning, the NCIS HTML GET \u201cintrusion created a crisis in the public\u2019s perception of the fairness of the accused\u2019s court-martial” and reeked of apparent Unlawful Command Influence, or \u201cUCI.\u201d<\/p>\n\n\n\n

Dubbed the \u201cmortal enemy of military justice\u201d by higher courts, UCI occurs when superiors utter words or take actions that wrongfully influence the outcome of court-martial cases, jeopardize the appeals process or undermine the public\u2019s confidence in the armed forces by appearing to tip the scales of justice.<\/p>\n\n\n\n

Rugh determined “that the NCIS intrusion placed an intolerable strain on the public\u2019s perception of the military justice system because \u2018an objective, disinterested observer, fully informed of all of the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.\u2019\u201d<\/p>\n\n\n\n

Although Gallagher\u2019s attorneys had asked Rugh to dismiss the case, the judge balked, saying that military appellate courts had ruled that every effort should be made to salvage it.<\/p>\n\n\n\n

Rugh said that he\u2019d already acted three times to punish the prosecution \u2014 by removing Gallagher from pretrial restraint; disqualifying Czaplak as prosecutor; and delaying the trial to June 17 to give the defense more time to prepare for it.<\/p>\n\n\n\n

But Rugh added two more remedies. He granted the defense team two additional peremptory challenges, for a total of three, to potentially sweeten the jury pool for Gallagher.<\/p>\n\n\n\n

He also barred anyone from sentencing Gallagher to life without the eligibility for parole, if convicted.<\/p>\n\n\n\n

The court-martial\u2019s convening authority, Navy Region Southwest, accepted Rugh\u2019s ruling.<\/p>\n\n\n\n

\u201cThe Navy remains committed to an impartial military justice system that provides due process and fundamental fairness. Chief Petty Officer Gallagher is presumed to be innocent, and the Navy will safeguard his right to a fair trial,” said command spokesman Brian O\u2019Rourke in a prepared statement emailed to Navy Times.<\/p>\n\n\n\t