SAN DIEGO — The trial for Special Operations Chief Edward Gallagher, the Navy SEAL accused of murdering an injured teenage ISIS fighter in Iraq in 2017, has been delayed amid a whirlwind of allegations that the prosecution in the case was illegally spying on defense attorneys and a journalist while withholding information from the judge.
In a Naval Base San Diego courtroom Wednesday, Gallagher’s defense attorney, Tim Parlatore, said he would seek to recuse the prosecution after emails distributed to 13 lawyers and paralegals on their team — as well as one to the editor of Navy Times — were discovered to contain a hidden electronic tracking device.
The tracking device was capable of revealing the location of the user, how long a user spent on a web page, what browser was being used, and other information, Parlatore said.
“We got a lot of documents earlier this week that paint a pretty disturbing picture of what the prosecution did in this case, how they targeted the defense, how they targeted a member of the media,” Parlatore told Navy Judge Capt. Aaron Rugh.
Under U.S. criminal law, authorities normally have to obtain a subpoena or court order to acquire IP addresses or other metadata from a private computer. Not using one could be a violation of existing federal privacy laws, including the Electronic Communications Privacy Act.
Parlatore implored Rugh to assess whether the judge had any knowledge that the prosecution failed to turn over such information, because if he did, Parlatore told the judge, “you were involved in the transactions in question.”
If so, procedural flaws such as this would constitute a call for the removal of the judge from the case, Gallagher’s defense argued.
Following the hearing, however, Parlatore adjusted his tone when asked about Rugh’s knowledge of the prosecution’s alleged misdeeds.
“What we [originally] believed is that the judge authorized the prosecutors to spy on the defense team,” he told reporters outside the courthouse.
“Now looking at things, it appears the prosecutors may have lied to the judge, and that [the judge] didn’t authorize it and didn’t know what they were really doing. ... What we’re going to be filing motions on is to recuse the prosecutors, to dismiss the case for the proprietorial misconduct."
Parlatore has said that the case’s Navy prosecutor, Cmdr. Christopher Czaplak, admitted in court on May 10 to sending the emails containing tracking devices.
One such email even found its way to the inbox of Marc Mukasey, a member of President Donald Trump’s legal team who, on speaker phone in the courtroom Wednesday, was sworn in as a member of Gallagher’s defense team.
Given the president’s recent proclamation that he would seek to to pardon service members accused or convicted of war crimes, direct involvement by Mukasey in a case revolving around an accused war criminal raised some eyebrows.
When a reporter asked about the potential conflict of interest arising with Mukasey’s involvement, Parlatore responded, “You want to make a motion on that?”
Minutes later, he backtracked to the question.
“Marc Mukasey has not talked to the president about this,” he said. “That’s not what he’s doing here, and if the president chooses to act, it will be on his own.”
Mukasey, meanwhile, dismissed the connection, telling Military Times he was joining the case specifically to represent Gallagher as his trial lawyer.
“I joined the Gallagher team to win the case in the courtroom and that’s what we’re focused on,” he said.
Gallagher’s defense team has filed a motion calling for the case to be dismissed, Parlatore said previously. And on Wednesday, he also pushed for a rewording of the judge’s gag order issued earlier this year, which prohibited lawyers from sharing court documents with the press. Parlatore claimed that leaks to the press have only benefited the prosecution, putting the defense in a position in which, according to the gag order, they are unable to respond to the leaked claims made.
The Navy’s top spokesman, Capt. Greg Hicks, declined to comment on the email device targeting Navy Times but acknowledged that the the Naval Criminal Investigative Service is conducting "an ongoing investigation into the unauthorized disclosure of information covered by a judge’s protective order.”
“The most troubling thing about this whole situation is that it’s being conducted by NCIS, when they were the source of the leaks to begin with," Parlatore said.
Gallagher’s trial, which was scheduled to begin May 28, has been postponed. The next hearing is scheduled for May 27.
It is expected that the case, by then, will involve an independent computer expert to extract any available detailed information from the IP addresses that were provided to the judge in number form, a document the judge referenced as “just a page of numbers. It’s my understanding those numbers are meaningless.”
Any recusal motion from Gallagher’s team must be submitted to the court by Friday.
In addition to the charges lodged against Gallagher, Gallagher’s platoon’s commanding officer, Lt. Jacob Portier, is fighting charges of conduct unbecoming an officer for allegedly conducting Gallagher’s re-enlistment ceremony next to the corpse.
Military Times Editor Howard Altman contributed to this story.
Jon Simkins is a writer and editor for Military Times, and a USMC veteran.