The family and defense team for Navy SEAL chief Eddie Gallagher continue to live day-by-day in limbo, as they await a military judge's ruling on whether charges against the decorated war hero should be dismissed based on what appears to be flagrant prosecutorial misconduct.
Navy Judge Capt. Aaron Rugh ordered the unusual step of removing the lead prosecutor from the case Monday. Rugh determined the prosecutor's conduct could trigger an investigation that would create a conflict of interest in the outcome.
Gallagher's attorneys say the government violated their client's right to a fair trial by surreptitiously imbedding tracking software in emails sent to Gallagher's attorneys, thereby allowing them to monitor the defense team's activities.
Their motion for a dismissal of the charges called the government's conduct "an affront to traditional notions of justice," adding it "threatens to make an unequivocal farce of our justice system."
Gallagher's representatives initially expected the judge to announce a decision on the motion Wednesday. No ruling was issued, however.
A source close to Gallagher's attorneys tells Newsmax his attorneys are confident they can prevail even if the case goes to trial, as the details of the surveillance effort by Naval Criminal Investigative Service become more widely known.
Gallagher's case stems from the 2017 death of a wounded ISIS fighter in Mosul, Iraq. Gallagher, who has been decorated with two Bronze Stars, has been accused of killing the man. He also allegedly shot at civilians during the Battle of Mosul, and he pleaded not guilty on all charges.
Gallagher's case has been in the national spotlight since March, when President Donald Trump, apparently acting in response to a plea from Rep. Ralph Norman, R-S.C., 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 judge ordered Gallagher released from pre-trial confinement May 30.
The New York Times has reported the Trump administration has requested the preparation of paperwork that could lead to a pardon for Gallagher and other service members accused of war-related crimes – although the White House emphasizes that no determination has been made.
According to the motion to dismiss, the surveillance was undertaken to determine who was leaking case materials to the press, an issue that remains unresolved. Gallagher's team says the leaks were coming from the prosecution.
The revelation of the tracking beacon drew a scathing rebuke 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 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 it can spread to other computers, and the system used to monitor the communications of Gallagher's attorneys has reportedly spread to Air Force and Marine systems as well.
"As of now," Wilson wrote, "the Navy's defense bar cannot be certain that the malware unleashed in these cases has been contained."
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