Special Warfare Operator Chief Edward “Eddie” 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.
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.
Rugh determined that scrutinizing the raw data, using only open source methods without a warrant or court order, “may 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.
Gallagher, 40, has insisted he’s innocent and was framed by four disgruntled junior SEALs.
Even before he issued his ruling, Rugh has watched the three-man prosecution team crack apart. On Monday, the judge booted lead prosecutor Cmdr. Christopher Czaplak off the case for his alleged role in the surveillance operation with NCIS.
He was replaced by Cmdr. Jeffrey Pietrzyk.
The Marine Corps already had withdrawn Capt.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.
Although Czaplak and the NCIS officials appeared to halt their surveillance within three days because their plot was discovered, their operation violated Gallagher’s Fourth Amendment rights against unreasonable searches and that “constituted a violation of a legal standard," Rugh found.
As Gallagher’s legal team became mired in litigation over the surveillance operation, they also lost vital time needed to prepare for trial, sparked “short-term concerns regarding conflicts of interest between his counsel and the accused” and temporarily robbed the SEAL of one attorney he chose because he had to leave to pursue another case," Rugh determined.
“These delays are wholly attributable to the government’s action,” the judge wrote.
Most damning, the NCIS HTML GET “intrusion created a crisis in the public’s perception of the fairness of the accused’s court-martial" and reeked of apparent Unlawful Command Influence, or “UCI.”
Dubbed the “mortal enemy of military justice” 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’s confidence in the armed forces by appearing to tip the scales of justice.
Rugh determined "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.’”
Although Gallagher’s 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.
Rugh said that he’d already acted three times to punish the prosecution — 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.
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.
He also barred anyone from sentencing Gallagher to life without the eligibility for parole, if convicted.
The court-martial’s convening authority, Navy Region Southwest, accepted Rugh’s ruling.
“The 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’Rourke in a prepared statement emailed to Navy Times.
Gallagher’s civilian attorney praised Rugh’s remedies, too.
“The peremptory challenges are huge,” said Timothy Parlatore, although he added that he already likes the panel of officers and senior enlisted leaders he’s been presented.
Composed mostly of Marines with Combat Action Ribbons, it includes three SEALs and a handful of senior and master chiefs.
"Judge Rugh found significant constitutional violations by NCIS and Cmdr. Czaplak, but moving forward everyone must realize that NCIS supervisors did these illegal acts.
"I believe that we will win this case and our focus remains on this trial, but the government case has been falling apart for a long time and now it’s time to go in and pick the jury. And then we’ll let these lying witnesses take the stand and subject themselves to cross-examination.
“Their false stories will be tested in ways that NCIS and the prosecution refused to do and I expect, in the end, Chief Gallagher will be found not guilty.”
NCIS did not return messages seeking comment.