A hearing in San Diego on Thursday could determine the fate of Navy SEAL chief Eddie Gallagher, whose defense team has filed a motion to dismiss charges stemming from the 2017 death of a wounded ISIS fighter in Mosul, Iraq.
Sources tell Newsmax the hearing will consider whether all charges against Gallagher should be summarily dismissed based on prosecutorial misconduct. A hearing scheduled for Wednesday was put off for 24 hours at the request of Gallagher’s attorneys.
The defense motion filed May 26 cites evidence of extreme prosecutorial misconduct it says “threatens to make an unequivocal farce of our justice system,” including secret surveillance of the defense team using an as yet undisclosed type of embedded software.
The motion states that prosecutors “impeded Gallagher’s access to witnesses and evidence, manipulated investigative reports and statements, outright lied about evidence, and suppressed exculpatory material. Standing alone, such misconduct would require dismissal.
“Yet the government went further,” it continues, “conducting surveillance of defense attorneys, journalists, and private citizens in violation of the Fourth, Fifth, and Sixth Amendments of the U.S. Constitution. The surveillance was not only an attack on the Bill of Rights and a grave danger to civil liberties, but an affront to traditional notions of justice. It has shocked the conscience of ordinary citizens and sparked national outrage.”
Gallagher’s case has been in the headlines since March, when President Donald Trump, apparently in response to a plea from South Carolina GOP Rep. Ralph Norman, tweeted: “In honor of his past service to our country, Navy Seal #EddieGallagher will soon be moved to less restrictive confinement while he awaits his day in court. Process should move quickly.”
The case received more attention on May 18 when The New York Times reported the Trump administration had requested expedited paperwork that could lead to a pardon for Gallagher and other service members accused of war-related crimes.
Gallagher has been charged with several violations of the Uniform Code of Military Justice while serving in Iraq, including shooting at civilians and stabbing to death a teenage fighter for ISIS.
The motion to dismiss the case filed by his defense team, led by attorney Timothy C. Parlatore, claims that prosecutors:
- Withheld the results of a lie detector test that Gallagher reportedly passed.
- Held back from the defense an alternative explanation for the killing that could prove exculpatory.
- Added on charges of two other killings despite the fact the allegation clearly lacked supporting evidence, in order to adversely influence the jury.
- Used immunity grants and intimidation tactics to influence the statements of witnesses.
- Leaked documents to the media, while claiming the leaks were coming from the defense team.
Overshadowing those allegations, however, was the stunning revelation last week that prosecutors, acting without a warrant but with the military court’s permission, embedded malware on smart phones and/or personal computers used by Gallagher’s attorneys and at least one journalist — a charge prosecutors have conceded.
According to the motion to dismiss, the ostensible goal of the surveillance was to determine who was leaking case materials to the press. But Parlatore has insisted the leaks actually came from prosecutors who were trying to railroad Gallagher.
Defense attorneys state in their motion that a number of representations that prosecutors made to the court to justify the surveillance were “materially false and/or misleading.” Among them:
- Prosecutors said they would embed the surveillance code within a 2-page document provided to defense. Instead, defense counsel says, what was embedded was a “tracking beacon.”
- The prosecutors told the court they suspected “government-associated persons” were responsible for the leaks, but the investigation “only targeted members of the defense team,” the motion says.
- It “failed to disclose the full extent of the information that can be collected,” the motion states.
According to Gallagher’s attorneys, the tracking beacon told prosecutors the website the defense team visited, the physical location of defense team members, when emails were opened, how long they were opened, the type of device being used, the email system used, whether the information was forwarded, and “all of the above information about the individual it was forwarded to.”
It further claims the surveillance may have been used “to triangulate and identify other experts and consultants being used to unlawfully intrude into the internal processes of Special Operations Chief Gallagher’s defense team.”
A Newsmax email request for comment from the Southwest Judicial Circuit of the Navy-Marine Corps Trial Judiciary did not receive an immediate response Tuesday evening.
The revelation drew a scathing rebuke late last week from a top Navy official, David G. Wilson, the chief of staff of the Navy’s Defense Service Offices. Defense Service Offices (DSO) operate within the Navy’s Judge Advocate General’s office, essentially acting as defense counsel to Navy personnel.
According to a letter Wilson wrote on May 19, the decision to secretly embed spyware in documents emailed to defense attorneys raises “grave ethical concerns.” Wilson’s letter describes the malware as a “splunk tool” that gives an outsider “full access to [the user’s] computer and all files on his computer.”
One issue with malware is that it can spread to other computers. The system used to monitor the communications of Gallagher’s attorneys apparently affected Air Force emails as well.
Wilson’s correspondence states: “I’ve learned that the Air Force is treating this malware as a cyber-intrusion in their network, and have seized the Air Force Individual Military Counsel’s computer and phone for review.”
A source tells Newsmax the tracking beacon or malware has also been discovered in the systems of at least one other military service, which is under investigation.
Wilson said the DSO attorneys now have “no confidence” that their privileged communications with their clients will remain confidential. Wilson said the spyware revelation had opened a “Pandora’s Box” triggering “troubling reverberations” across his department throughout the Navy.
“As of now,” Wilson wrote, “the Navy’s defense bar cannot be certain that the malware unleashed in these cases has been contained.”
In a response last week to an inquiry from TaskAndPurpose.com, Navy spokeswoman Patty Babb insisted the tracker was “part of a lawful, authorized, and legitimate investigation into the unauthorized disclosure of information associated with the case.” Contrary to Wilson’s letter, she maintained the software is “not a malware or a virus,” does not “reside on computer systems,” and carries “no risk that systems are corrupted or compromised.”
Navy brass, however, appear eager to distance themselves from the surveillance activity. Babb stated the tracker “was conducted at the local level, and not a part of a broader Navy policy or strategy, and not an independent action by the prosecutor.”
Babb did not reveal who authorized embedding the tracker software in the defense attorneys’ email systems.
© 2021 Newsmax. All rights reserved.