Lawyers defending Special Operations Chief Edward Gallagher want the judge in the case removed because he was aware prosecutors planted tracking software in emails sent to the defense team and a journalist in an effort to find the source of news leaks.
Defense attorney Tim Parlatore said prosecutors may have misled the judge about the unusual tactic and he plans to ask that they be disqualified from the high-profile case.
"What we believed is that the judge authorized prosecutors to spy on the defense team," Parlatore said after the hearing. "Now looking at things it appears that prosecutors may have lied to the judge and that he didn't authorize it and he didn't know what they were really doing."
Gallagher, who was dressed in Navy whites at the hearing, was scheduled to face trial May 28 on charges he killed a wounded Islamic State prisoner under his care in 2017. He is also charged with shooting two civilians in Iraq and opening fire on crowds.
Now that trial date is in doubt as the defense tries to learn more about the email tracking and whether it violated attorney-client privilege and protections against illegal searches.
Dozens of Republican congressmen have championed Gallagher's cause, claiming he's an innocent war hero being unfairly prosecuted. President Donald Trump got him moved from the brig to better confinement in a military hospital with access to his lawyers and family.
Parlatore, who said his team includes Marc Mukasey, one of Trump's attorneys, did not reach out to the president but acknowledged he could pardon Gallagher or dismiss the case.
The New York Times, citing two U.S. officials, reported that the White House has requested expedited documentation needed to pardon several troops, including Gallagher, around Memorial Day.
"Ultimately my goal, my primary duty, is to get my client home to his family and to have him, you know, not be facing jail time," Parlatore said outside court. "So if offered a pardon, would he accept? I bet he would."
The hearing at Naval Base San Diego began with a tense exchange between Parlatore and the judge, Capt. Aaron Rugh.
Rugh admonished Parlatore to show respect and answer his questions.
Parlatore said Rugh could be a material witness to the case and the judge said he was open to recusing himself but didn't know if that would be necessary.
Parlatore said the prosecution had downplayed what the software captured. He asked to let a defense expert examine the extent of the intrusion and determine if metadata extracted could be linked to identify specific people.
Parlatore said a search warrant would have been necessary to get that information legally and that investigation documents he was provided show the effort was done without proper authorization.
Parlatore asked who else knew about the email tracking and Rugh told the prosecution to provide a list of "anybody that put their hands on this."
Prosecutors were relatively quiet during the hearing that lasted more than two hours. A Navy spokesman refused to comment on the case.
Gallagher has pleaded not guilty to all counts. His lawyers said he did not murder anyone, and that disgruntled SEALs made the accusations because they wanted to get rid of a demanding platoon leader.
Gallagher's supervisor, Lt. Jacob Portier, is fighting charges of conduct unbecoming an officer for allegedly conducting Gallagher's re-enlistment ceremony next to the corpse.
The judge asked the prosecution to address the leaks that included documents disclosed to lawyers that were under court order not to be shared.
Parlatore said the leak investigation targeted the defense team and civilian lawyers in the case, including Portier's attorney, Jeremiah J. Sullivan III and attorney Brian Ferguson, who represents SEAL witnesses in the case.
Parlatore said the leak investigation had also gone so far as to conduct extensive background checks on the defense that turned up a speeding ticket Parlatore got in 2003. It also unearthed military records of lawyers of served in the armed forces and Carl Prine, a Marine Corps veteran who as the Navy Times editor and reporter has broken several stories in the case.
Reports indicate they found no illegal activity by the lawyers or Prine, Parlatore said.
Jeff Houston, a spokesman for Naval Criminal Investigative Service, or NCIS, said in an email to The Associated Press that the investigation into leaks is lawful and legitimate and had appropriate oversight.
The tracking software embedded in an unusual logo of an American flag with a bald eagle perched on the scales of justice beneath the signature of lead prosecutor Cmdr. Christopher Czaplak was discovered two weeks ago by defense lawyers. Two days later, the prosecutor acknowledged the scheme in a closed-door hearing, but refused to provide details.
Rugh said the monitoring ended May 10. He asked for a letter from senior Navy officials to clarify if anyone is still under investigation for the leaks, including prosecutors.
The discovery has led to criticism that the prosecution trampled on press freedoms and violated the defendants' rights to a fair trial.
Capt. David Wilson, chief of staff for the Navy's Defense Service Offices, wrote a scathing memo this week saying the lack of transparency has led defense lawyers to question whether attorney-client communications are secure on the Navy-Marine Corps Intranet. An Air Force lawyer representing Portier had his computer and phone seized for review.
"The Air Force is treating this malware as a cyber-intrusion on their network," Wilson said in the letter obtained by The Associated Press.
Parlatore said most of the leaks have benefited the prosecution's narrative and the likely leakers were on the government side of the case or in the Naval Criminal Investigative Service.
"It really looks like a lot of gamesmanship to affect the outcome of the case," Parlatore told the judge.
Melley reported from Los Angeles.
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