After the Navy bungled the investigation and prosecution of Special Warfare Operator Chief Edward “Eddie” Gallagher for war crimes, unlawfully detained him, subjected his family to ridicule, spied on defense attorneys and triggered widespread concerns about corruption in the military justice system, he deserves to retire with dignity, according to a clemency request now before Chief of Naval Operations Adm. Michael Gilday.
Premeditated murder, attempted homicide, obstruction of justice and other charges against Gallagher, 40, collapsed at his July court-martial trial. He was convicted of the sole charge of posing in 2017 with the body of a dead Islamic State fighter near Mosul, Iraq, an allegation he never denied.
Obtained by Navy Times, the 14-page clemency package filed on Oct. 1 with the CNO by criminal defense attorney Timothy Parlatore urges Gilday to vacate the conviction and administer non-judicial punishment at the Pentagon for the photo infraction.
“What’s shocking about this case is that Chief Gallagher, at the tip of America’s spear in combat, swore an oath to defend the Constitution of the United States against all enemies, and yet his constitutional rights were violated at every step of his case by the Navy,” Parlatore told Navy Times.
Cmdr. Nate Christensen, the CNO’s spokesman, told Navy Times that a final decision on Gallagher’s fate will be made “by the end of October.”
Navy Times obtained the clemency request from sources independent of both Gilday and Parlatore.
After acquitting him of all but the photograph charge the previous day, a panel of Gallagher’s military peers on July 3 recommended the chief be reduced to petty officer first class, forfeit $2,697 of pay per month for four months and be confined to the brig for four months, half of what he’d already spent in pretrial confinement in San Diego.
Under Navy regulations, however, he’s slated to be automatically demoted to the pay grade of E-1 for receiving a sentence of confinement following a general court-martial.
Gilday catches the case because his predecessor, Adm. John Richardson, removed all court-martial authority from Navy Region Southwest for Gallagher, making the CNO the convening flag officer for post-sentencing.
Two days earlier, Richardson had ordered authorities in San Diego to dismiss all charges against Lt. Jacob X. “Jake” Portier, the officer in charge of Gallagher’s Alpha Platoon, SEAL Team 7, in Iraq, for allegedly helping his chief cover up the war crimes.
He also nixed an ongoing probe into Special Warfare Operator 1st Class Corey Scott, the SEAL petty officer who confessed on the witness stand during Gallagher’s trial to killing the prisoner so that he wouldn’t be tortured to death later by Iraqi forces.
Scott was provided immunity from prosecution in exchange for his testimony and can’t be tried.
Richardson was so concerned about the ethics, competence and training of Navy attorneys that he ordered a worldwide review into the sea service’s Judge Advocate General Corps, a probe later expanded by Secretary of the Navy Richard V. Spencer to include the Marines.
In his clemency appeal, Gallagher claims that his “draconian punishment” began long before the Navy’s case against him fizzled at trial.
Slated for advancement to senior chief before the war crimes probe kicked off, his elevation was put on hold.
Nominated for the Silver Star medal for battlefield valor, his award submission was tossed out and officials removed him as an instructor at Special Operations Urban Combat School.
During a June 20, 2018, Naval Criminal Investigative Service agents raid on his Point Loma home, his children were marched out onto the lawn by gunpoint, wearing only their underwear, according to sworn testimony by NCIS Special Agent Brian Frank at Gallagher’s trial.
Contacted by Navy Times, NCIS officials declined comment on Sunday.
They previously had assured Navy Times that the humiliation of Gallagher’s children never happened, citing as proof video footage that apparently never existed, statements later contradicted during the trial by Frank.
Gallagher was denied treatment for traumatic brain injuries while locked away in Naval Consolidated Brig Miramar, Parlatore wrote.
After eight combat deployments, the highly decorated Gallagher has 18 documented brain injuries in his medical files, according to the clemency request.
While behind bars, Gallagher’s children were “forced to wear robes to visit him because of all the sex offenders in the same brig,” it continued.
President Donald J. Trump ordered Gallagher released from the brig on March 30. But the following 34 days of restriction overseen by Naval Special Warfare Group 1 also were deemed to have violated the military judge’s orders directing how he was to be treated, according to the clemency request.
Beyond the notoriety ginned up by his trial, Gallagher’s general court-martial conviction leaves him with a felony record, which further shrinks his future career prospects, Parlatore wrote.
If Gallagher retires as a chief, the likely value of his pension before he dies is about $1.7 million, according to an analysis added to his clemency filing.
As an E-1, it would be worth only $654,135.
Gallagher is the only U.S. service member in nearly two decades of war in Afghanistan and Iraq convicted of the crime of appearing in a photo with a dead enemy, Parlatore wrote.
That’s because it’s an offense that normally is adjudicated administratively with a counseling statement or non-judicial punishment, not a general court-martial trial.
“We ended up here, with this clemency request, only because the government never did a real investigation about what happened in Iraq,” Parlatore told Navy Times. “At a minimum, they owed everyone a proper investigation and to treat Chief Gallagher fairly.”
At least 10 other service members assigned to the SEAL platoon also appeared in the photo with Gallagher, including a commissioned officer, Navy Lt. Thomas MacNeil.
After the group shot, he and other SEALs had their portraits taken with the corpse, too. The Navy charged none of them with the same crime or apparently even punished them administratively.
A longstanding Navy tradition shields junior sailors from receiving more severe punishment than a senior for offenses arising from the same incident, a custom designed to preserve accountability in a chain of command, Parlatore wrote.
CNO Gilday will be forced to confront other uncomfortable truths unearthed by the Gallagher case, including a different NCIS agent conceding that he violated numerous procedures throughout the probe and had his testimony challenged by SEAL eye witnesses; agents who failed to obtain basic evidence from the sites where the crimes allegedly occurred; and allegations that investigators failed to even interview several witnesses.
Part of the military judge’s punishment for NCIS and prosecutorial misconduct included booting Cmdr. Christopher Czaplak, the lead prosecutor, from the case for a warrantless surveillance program cooked up with NCIS agents to track emails sent by defense attorneys and Navy Times.
He also was accused of hiding evidence that could have helped to clear Gallagher from some charges, even shielding it from his fellow prosecutors.
Officials at the Office of the Judge Advocate General did not respond to requests for comment from Navy Times.
If Gilday lets Gallagher’s verdict or punishment stand, Parlatore could push the clemency request up the chain to the highest levels of the Pentagon or the commander in chief, Trump.
But he says he and Gallagher haven’t contemplated that.
“I want to see what happens and then the client will decide,” Parlatore said.
Clarification: This story has been updated to remove the clemency appeal’s paraphrase about Lt. MacNeil’s testimony.