Judge in war crimes case against Navy SEAL weighs dismissal motion

[May 29, 2019]  By Marty Graham

SAN DIEGO (Reuters) - The judge in the court-martial of a Navy SEAL platoon leader accused of war crimes in Iraq was expected to hear arguments on Thursday on defense motions to dismiss the charges or otherwise remove the lead prosecutor and the judge himself from the case.

The hearing comes 12 days before Special Operations Chief Edward Gallagher is set to go on trial charged with killing a helpless, wounded Islamic State fighter in his custody and of shooting two unarmed civilians, a schoolgirl and an elderly man.

The case, being conducted at U.S. Naval Base San Diego, has attracted the attention of President Donald Trump.

Pre-trial proceedings for the past month have focused on accusations by Gallagher's attorneys that prosecutors and their investigators illegally snooped on the defense and reporters covering the case to try and pinpoint leaks of sealed information.

Gallagher, 39, a decorated career combat veteran, has pleaded not guilty to all charges, including premeditated murder, two counts of attempted murder and obstructing justice.

He asserts that he is wrongly accused and that fellow SEAL team members testifying against him, several under grants of immunity, are disgruntled subordinates who fabricated allegations to force him from command.

His defense team has argued that the case should be dismissed altogether on grounds of alleged misconduct by the Navy prosecutor, agents of the Naval Criminal Investigative Service (NCIS) and the presiding judge.

The defense specifically has accused Navy lawyers of conducting illegal surveillance of defense attorneys and news media by way of electronic tracking software secretly embedded in emails sent to the defense.

In court, prosecutors have said the email "auditing tools" they used were designed merely to detect the flow of emails without revealing their content.

The judge, Navy Captain Aaron Rugh, has said he did not ask for or order any such surveillance, but the defense contends he was apparently aware of it, calling into question his impartiality.

Barring an outright dismissal, which is seen as unlikely, the defense is asking that the lead prosecutor, Commander Christopher Czaplak, be disqualified from the case. He also has entered a motion seeking recusal of the judge.

If those motions are denied, and the case otherwise remains on track, jury selection is set to start on June 10. The trial originally had been due to start last week but was postponed over the misconduct allegations.

Trump weighed in on the case publicly in March, when he ordered Gallagher moved to less restrictive pre-trial confinement "in honor of his past service to our country."

Last Friday, Trump said he was considering pardons for two or three American servicemen charged with war crimes, but might wait until they stood trial before deciding.

Trump did not name the cases in question. But the case of Gallagher, whose defense team includes a Trump personal lawyer, Marc Mukasey, is believed to be among those under review.

(Reporting by Marty Graham in San Diego; Writing and additional reporting by Steve Gorman in Los Angeles; Editing by Clarence Fernandez)

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