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San Diego – A military judge on Monday overturned a prosecutor accused of misbehaving the war crimes case of a decorated Navy SEAL.
Captain Aaron Rugh ordered that the senior prosecutor be stricken from the role of the chief of special operations, Edward Gallagher, after defense lawyers accused him of spying on their e-mails, according to the ruling.
The defense asked Rugh to file the case or dismiss the prosecutors because of his clandestine efforts to track the emails of the defense without court approval in order to find the source of the news leaks.
Rugh said that it was not in his power to determine whether the Cmdr. Christopher Czaplak violated ethical or professional rules, but the possibility of an investigation into these acts necessitated his withdrawal from prosecution.
Czaplak was informed of the decision during a statement while he was questioning an Iraqi general witness to the case, said defense lawyer Tim Parlatore.
Czaplak left in the middle of the testimony and was videotaped in San Diego for use at trial. He did not return to the courtroom.
Parlatore said that it was a step in the right direction.
"It's impossible for him to be allowed to sue in this case," Parlatore said. "We still hope that all the case will be closed."
Rugh said he would rule on the advisability of dismissing the murder and attempted murder cases against Gallagher by the end of Wednesday.
Gary Solis, a former Marine Corps attorney and a military judge who teaches law in Georgetown, said he never heard of it, noting that Cubplak's decision to follow the emails of defense lawyers was "contrary to legal ethics and common sense".
"Unprecedented, it's too tame to describe what he's done," said Solis, who applauded the decision. "This is not wise, it's too optimistic, his behavior was totally inappropriate."
Captain Conor McMahon, a Marine Corps lawyer, also assigned to the case, will not be dismissed, Rugh said.
But it is unclear whether McMahon will remain in the prosecution team. McMahon's commanders ordered him to stop participating in the trial last week and did not attend the Thursday and Friday hearings.
The navy would not say it would stay in the team.
Czaplak will be replaced by another Navy lawyer, spokesman Brian O'Rourke said.
"The first Gallagher master is entitled to a fair trial and the Navy is determined to uphold this principle," said O. Rourke.
Gallagher, who was a platoon leader, pleaded not guilty to the murder of a wounded youth activist in Iraq in 2017 and an attempted murder for allegedly kidnapping civilians at the police station. a sniper.
Lieutenant Jacob Portier, his platoon superior, complains of conduct unbecoming an officer who allegedly presided at Gallagher's re-enlistment ceremony next to the activist's corpse.
Efforts to get the case to be filed come at a time when President Trump plans to pardon several members of the Armed Forces accused of war crimes, including Gallagher. Congressional Republicans expressed their support for Gallagher, saying he had been mistreated.
One of Gallagher's civil defense lawyers, Marc Mukasey, is also a personal lawyer for the president, says Reuters press service.
Gallagher could be sentenced to life in prison if he is found guilty of all the charges, including murder, attempted murder and obstruction of justice, Reuters said.
Gallagher says the other SEALS testifying against him – many after gaining immunity – are unhappy subordinates who have made allegations in an attempt to remove him from his command, Reuters adds.
Last week, Rugh unexpectedly released Gallagher from custody as a means of remedying the prosecutors' interference amid a hearing that also included charges that they had concealed evidence from the defense.
The dismissal of Czaplak could delay the trial, which should open on June 10.
Gallagher pleaded not guilty to the murder of a militant teenager injured in Iraq in 2017 and for attempted murder for kidnapping two civilians from the perch of a sniper.
It is extremely unusual for a military judge to withdraw the charge or to close a case just days before the start of the trial. The military justice system has received few convictions for war crimes and has been criticized for its inefficiency.
At last week's hearings, Rugh said that he had been misled about the investigation of leaks of information.
He said the investigators told him privately that they planned to incorporate code into what he thought was a court document to help them find the source of the leaks. But the judge said that he did not have the power to authorize such tactics and that it had not been announced with the intention of targeting e-mails sent to defense lawyers or a journalist.
Rugh also claimed that Czaplak was working with federal prosecutors and that his approval was not necessary.
Rugh received a letter Friday from the US Attorney's Office in San Diego, stating that they had neither approved nor coordinated the follow-up, Parlatore said.
Evidence at the hearings showed that prosecutors hired an intelligence specialist from the Naval Criminal Investigation Service to conduct criminal background checks of three civilian lawyers and a Navy Times reporter who had told several stories on the basis of disclosed documents.
Parlatore, who was among the three lawyers investigated, accused prosecutors of a "rogue, implacable and illegal cyber-campaign" that could have violated solicitor-client privilege and hurt his client's ability to obtain a fair trial.
Czaplak downplayed the move, saying the embedded code did not record anything more than what marketers use to know where and when the messages were opened by the recipients.
Lt. Scott McDonald, another attorney, said the effort was only to collect data, such as Internet protocol addresses, and not search email content or request a search warrant.
"Even though there was an intrusion" in violation of the client's privilege, it was not sufficient to dismiss the case, McDonald said.
Czaplak said the follow-up ended on May 10 after Parlatore had confronted the code, which had discovered the code in an unusual logo representing an American flag, with a bald eagle perched on the scales of justice under the signature of the prosecutor.
Several experts said the code could not usually be used to identify a particular person or to capture content.
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