By Julie Watson and Brian Melley / Associated Press
SAN DIEGO — A military judge took the rare step Monday to remove a prosecutor accused of misconduct from the war crimes case of a decorated Navy SEAL.
Capt. Aaron Rugh ordered the lead prosecutor removed from the case of Special Operations Chief Edward Gallagher after defense lawyers accused the prosecution of spying on their emails, according to the ruling.
The defense asked Rugh to dismiss the case or remove prosecutors because of the surreptitious effort to track defense emails without court approval in an effort to find the source of news leaks.
Rugh said it was not in his power to determine if Cmdr. Christopher Czaplak violated ethical or professional rules, but the potential for a probe into those actions required that he be removed from the prosecution.
Czaplak received word of the ruling during a deposition while questioning an Iraqi general, who is a witness in the case, defense lawyer Tim Parlatore said.
Czaplak left in the middle of the testimony being recorded on video in San Diego for use at the trial. He did not return to the courtroom.
Parlatore said it was a step in the right direction.
“There’s no way he should be allowed to continue on this case,” Parlatore said. “We’re still hopeful the entire case will be dismissed.”
Rugh said he would rule on whether to dismiss murder and attempted murder counts against Gallagher by the end of Wednesday.
Gary Solis, a former Marine Corps prosecutor and military judge who teaches law at Georgetown, said he’s never heard of anything like this, saying Czaplak’s decision to track defense attorneys’ emails was “contrary to legal ethics and common sense.”
“Unprecedented is too tame a description for what he did,” said Solis, who applauded the ruling. “Unwise is overly optimistic … His conduct has been entirely inappropriate.”
A Marine Corps lawyer, Capt. Conor McMahon, assigned to the case will not be removed, Rugh said.
But it’s not clear if McMahon will stay on the prosecution team. McMahon’s commanders ordered him to stop participating in the case last week and he didn’t appear at hearings on Thursday and Friday.
The Navy would not say if he would remain on the team.
Czaplak will be replaced with another attorney from the Navy, spokesman Brian O’Rourke said.
“Chief Petty Officer Gallagher is entitled to a fair trial and the Navy is committed to upholding that principle,” O’Rourke said.
Last week, Rugh unexpectedly released Gallagher from custody as a remedy for interference by prosecutors in the middle of a hearing that also included accusations they withheld evidence from the defense.
The removal of Czaplak could delay the trial scheduled to start June 10.
Republicans in Congress have rallied in support of Gallagher, saying he has been mistreated. President Donald Trump, who intervened to move Gallagher to better confinement, has considered dismissing the charges.
Gallagher pleaded not guilty to murder in the death of an injured teenage militant in Iraq in 2017 and to attempted murder for picking off two civilians from a sniper’s perch.
It is extremely unusual for a military judge to remove the prosecution or dismiss a case only days before the start of a trial. The military justice system has gotten few war crime convictions and been criticized for being ineffective.
At hearings last week, Rugh indicated he was misled about the investigation into news leaks.
He said investigators told him privately they planned to embed code in what he believed to be a court document to help them find the source of leaks. But the judge said he didn’t have the power to authorize such a tactic and wasn’t told they planned to target emails sent to the defense lawyers or a journalist.
Rugh also said he believed Czaplak was working with federal prosecutors and his approval was not necessary.
Rugh received a letter Friday from the U.S. attorney’s office in San Diego, saying they had not approved or coordinated the tracking, Parlatore said.
Evidence at the hearings showed prosecutors enlisted a Naval Criminal Investigative Service intelligence specialist to conduct criminal background checks on three civilian lawyers and a Navy Times journalist who has broken several stories based on leaked documents.
Parlatore, who was among the three lawyers investigated, accused prosecutors of a “rogue, relentless, and unlawful cyber campaign” that may have violated attorney-client privilege and hurt his client’s ability to get a fair trial.
Czaplak downplayed the move, saying the embedded code recorded nothing more than what marketers use to find out where and when messages were opened by recipients.
Another prosecutor, Lt. Scott McDonald said the effort only gathered data, such as internet protocol addresses, and did not snoop on the content of emails or require a search warrant.
“Even if there was some intrusion” in violation of attorney client-privilege, it didn’t rise to the level to dismiss the case, McDonald said.
Czaplak said the tracking ended May 10 after he was confronted by Parlatore who discovered the code in an unusual logo of an American flag with a bald eagle perched on the scales of justice beneath the prosecutor’s signature.
Several experts testified that the code couldn’t generally be used to identify a specific person or capture content.
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