Judge finds Navy SEAL's fair trial rights violated in war crimes case

[rooster59]

Judge finds Navy SEAL's fair trial rights violated in war crimes case

By Marty Graham

 

U.S. Navy SEAL Special Operations Chief Edward Gallagher, charged with war crimes in Iraq, is shown in this undated photo provided May 24, 2019. Courtesy Andrea Gallagher/Handout via REUTERS

 

SAN DIEGO (Reuters) - The military judge presiding over the court-martial of a U.S. Navy SEAL charged with war crimes said on Friday prosecutors who electronically tracked email communications of defense lawyers without a warrant violated the accused's right to a fair trial.

 

The finding came near the end of a two-day hearing that wrapped up just 10 days before Special Operations Chief Edward Gallagher is due to stand trial in a case that has drawn the attention of U.S. President Donald Trump.

 

Gallagher is charged with murdering a helpless, wounded Islamic State fighter in his custody, and with two counts of attempted murder in the wounding of two unarmed civilians, a schoolgirl and elderly man, shot from a sniper's perch.

 

The charges stem from Gallagher's deployment as a platoon leader to Iraq's northern city of Mosul, in 2017.

 

He has pleaded not guilty to those and other charges, including obstructing justice. If convicted, the decorated career combat veteran could face life in prison.

 

Gallagher says he was 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 filed motions seeking either to dismiss the charges altogether, or remove the lead prosecutor from the case, on grounds of alleged misconduct by the prosecutor and agents of the Naval Criminal Investigative Service (NCIS).

 

The defense specifically has accused Navy lawyers of conducting illegal surveillance of defense attorneys and news media using 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, and were aimed at pinpointing the source of leaks from case files sealed by the judge.

 

The judge, Navy Captain Aaron Rugh, adjourned the hearing without ruling yet on the defense motions. But Rugh said he had already found the prosecution's conduct amounted to a violation of the defendant's Sixth Amendment rights to a fair trial under the U.S. constitution.

 

Even if the judge refuses to dismiss the case, removing the lead prosecutor, Navy Commander Christopher Czaplak, would probably result in a lengthy delay.

 

A ruling on the motions could come any time, and momentum seemed to be moving the favor of the defense.

 

At the end of Thursday's proceedings, the judge unexpectedly ordered Gallagher released from base confinement at a nearby military hospital center in San Diego while he awaits trial.

 

He was transferred there from a military brig at a Marine Corps air station in California in March at the direction of Trump, who cited Gallagher's "past service to our country."

 

Trump last Friday said he was considering pardons for a number of service members accused of war crimes, and Gallagher's case is widely believed to be one of the cases under review. (https://reut.rs/2QAJ9nx)

 

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

 

-- © Copyright Reuters 2019-06-02

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[helpisgood]

33 minutes ago, rooster59 said:

In court, prosecutors have said the email "auditing tools" they used were designed merely to detect the flow of emails without revealing their content, and were aimed at pinpointing the source of leaks from case files sealed by the judge.  [Bold added.]

 

I am not familiar with US military justice and its procedures.

 

However, just using common sense, it seems to me that the prosecutors should have gone to the judge first or, at least, as soon as was reasonably possible.  After all, the prosecutors are arguing that they were protecting "files sealed by the judge."

 

Yes, that may have meant going to the judge without defense counsel(s) present, which may be normally required.  Still, you'd think under the circumstances, this may be a fair exception or worth trying as an exception.

 

Or, maybe they could have gotten the right warrant from another judge?

 

Maybe the military code does not yet specifically address this high-techy situation.  Even if it that was true, you would think going to the judge first is the safe thing to do, especially since otherwise the prosecution are risking letting a defendant with very serious charges walk based simply on this possible pretrial mistake.  

Edited June 2, 2019 by helpisgood
added phrase

[klauskunkel]

2 hours ago, rooster59 said:

Gallagher says he was 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.

And here I was convinced you all were a band of brothers, having each other's backs, being a family on and off deployment with only camaraderie and a bit of friendly competition in a team spirited kind of way defining every interaction.

Ooops, no, that was Top Gun. My bad, I'm sorry. 

[faraday]

These Special Forces blokes do a momentously difficult job. Perhaps he did make a few mistakes I dunno, but why prosecute him?

 

 

[newatthis]

2 hours ago, rooster59 said:

Trump last Friday said he was considering pardons for a number of service members accused of war crimes, and Gallagher's case is widely believed to be one of the cases under review. (https://reut.rs/2QAJ9nx)

That would set a terrible precedent. It doesn't matter if you've got a string of Purple Hearts, Medals of Honor, Victoria Crosses, Croixs de guerre etc; if you're a murderer you must be punished.

Edited June 2, 2019 by newatthis
grammar

[JimmyTheMook]

14 minutes ago, faraday said:

These Special Forces blokes do a momentously difficult job. Perhaps he did make a few mistakes I dunno, but why prosecute him?

 

 

 

Because USA weak now - political correctness and years of abuse of the unchecked social program handouts have created a culture of wimps that floats right to the desk sitting Military Officers who pursue these types of cases.

 

 

[Pedrogaz]

anything at all to cover up US war crimes

[yardrunner]

murder if that is what it was was far more than a mistake

[metisdead]

An off topic baiting post has been removed as the baiting comments were not related to the topic which is about Judge finds Navy SEAL's fair trial rights violated in war crimes case.

[mtls2005]

For reasons which remain unclear some very powerful people want Gallagher released/pardoned. No cost or effort is too much apparently.

 

Former AG Mike Mukasey's son, Marc is representing Gallagher; he is also representing trump in the Deutsche BankCapital One "case", and is a law partner to rudy guiliani.

 

2 hours ago, faraday said:

These Special Forces blokes do a momentously difficult job. Perhaps he did make a few mistakes I dunno, but why prosecute him?

 

Would you say the same about Gallaghers seven SEAL team members who turned him in? And often tried to stymy his murderous ways by messing with his rifle scope so he couldn't snipe women and children?

 

 

 

[Guest Jerry787]

assange in jail !
a vile war criminal who killed .............. "of two unarmed civilians, a schoolgirl and elderly man, shot from a sniper's perch" ....free

this is US democracy and justice.

[faraday]

2 hours ago, mtls2005 said:

For reasons which remain unclear some very powerful people want Gallagher released/pardoned. No cost or effort is too much apparently.

 

Former AG Mike Mukasey's son, Marc is representing Gallagher; he is also representing trump in the Deutsche BankCapital One "case", and is a law partner to rudy guiliani.

 

 

Would you say the same about Gallaghers seven SEAL team members who turned him in? And often tried to stymy his murderous ways by messing with his rifle scope so he couldn't snipe women and children?

 

 

 

Ok, didn't know about that.

[Chomper Higgot]

Simple. 

 

Retrial. 

[ballpoint]

Given the number of civilian mass shootings in the US carried out by loonies running about with guns, is it any surprise that a number of them would join the armed forces out of a desire to shoot people, rather than to defend their country?

[tifino]

Not that it is said that they tried; but going behind the back of a Judge, to attempt to get another source for a Warrant, is not something easily hidden!

  - as a minimum, a Leave of the Court might start things off

 - otherwise the requiremnt to apply to a Higher Court

 

In military judicial world it is not that clear cut to do it cleanly

 

but then the Military way can easily fall back on the Wall of Silence...  

 

In a parallel world, half a world away in Australia; a similar scenario is being mooted to be occurring to a recent Victoria Cross recipient; serving with Oz's equivalent of America's NavySeals, the SAS

[connda]

I wonder if his victim's rights of Due Process where violated? 

[Ulic]

10 hours ago, faraday said:

These Special Forces blokes do a momentously difficult job. Perhaps he did make a few mistakes I dunno, but why prosecute him?

 

 

I don't have much concern in regards to the wounded ISIS fighter and while what he did was wrong in that case, I would possibly not prosecute that killing, however, the two unarmed civilians, one a schoolgirl, from a snipers perch is horrific. This guy must be a real twisted scumbag for men under his former command to testify against him. Normally the wagons would be circled and everything would be covered up. 

[TPI]

21 hours ago, newatthis said:

That would set a terrible precedent. It doesn't matter if you've got a string of Purple Hearts, Medals of Honor, Victoria Crosses, Croixs de guerre etc; if you're a murderer you must be punished.

In a War, how do you separate a lawful killing versus an unlawful killing? What do you use as criteria? Who selects the criteria? In a war are all deaths lawful or are all deaths unlawful?

Think about the Australian Military legal eagle who thought to accuse SAS of unlawful killing because they didn't check to see if there were non-combatants inside a house where they were receiving rocket fire and automatic rifle fire before calling for air strikes or grenades to suppress the shooters!

 

Bloody nonsense!

[tifino]

7 hours ago, TPI said:

In a War, how do you separate a lawful killing versus an unlawful killing? What do you use as criteria? Who selects the criteria? In a war are all deaths lawful or are all deaths unlawful?

Think about the Australian Military legal eagle who thought to accuse SAS of unlawful killing because they didn't check to see if there were non-combatants inside a house where they were receiving rocket fire and automatic rifle fire before calling for air strikes or grenades to suppress the shooters!

 

Bloody nonsense!

... compared to the other extreme... 'My Lai' village

[thaibeachlovers]

On ‎6‎/‎2‎/‎2019 at 4:43 PM, yardrunner said:

murder if that is what it was was far more than a mistake

War is confusing. Mistakes get made. We ask hard men to put themselves in harms way for us, but when something happens officialdom does them harm. I presume such officials are a bunch of civilians in uniform that probably never went in harm's way themselves.

During the D Day invasion of Europe thousands of French civilians were killed- the generals were not prosecuted for ordering actions that killed them. 

During Bomber Harris's mass bombing of German cities, untold thousands of civilians were killed- Harris was not prosecuted.

 

War is a bad business, but we should be careful of what we expect the soldiers in harm's way to do.

Perhaps they should have sent those prosecutors into action so they have some idea of what it is like in actual war.

[thaibeachlovers]

3 minutes ago, tifino said:

... compared to the other extreme... 'My Lai' village

No one that knows what happened there would compare the situations.

My Lai was a monstrous abomination. This is one man that may or may not have killed some people illegally in the heat of battle. The least he deserves is a fair trial without prosecution dirty tricks.

[thaibeachlovers]

18 hours ago, Ulic said:

I don't have much concern in regards to the wounded ISIS fighter and while what he did was wrong in that case, I would possibly not prosecute that killing, however, the two unarmed civilians, one a schoolgirl, from a snipers perch is horrific. This guy must be a real twisted scumbag for men under his former command to testify against him. Normally the wagons would be circled and everything would be covered up. 

Ever served yourself? 

I served and there was as much hatred among the ranks as in any occupation.

Just because men join a military unit does not make them "brothers", regardless of what the media, movie industry, and the propaganda machine portray them as.

Do you forget the incidence of fragging during the Vietnam war?

Perhaps the "twisted scumbags" were the men under his command that testified against him?