SAN DIEGO – The prosecutor in the war crimes court martial of a San Diego-based Navy SEAL has been removed from the case by a Navy judge.
Attorneys for Chief Special Operator Edward Gallagher told FOX 5 Monday that the judge removed Cmdr. Chris Czaplak, the senior prosecutor in the case. Gallagher’s defense team has accused the prosecutor of misconduct, alleging that prosecutors attempted to track emails sent to defense attorneys and a reporter for the Navy Times.
The removal of Czaplak comes amid a controversy over tracking devices attached to emails from Czaplak to the defense team. The devices were ordered with Czaplak’s knowledge as part of a Naval Criminal Investigative Service probe into media leaks in the case. The defense had argued that Czaplak is unfit to prosecute the case because future investigations into the legality of the email tracker could create a conflict of interest.
In his ruling Monday, the judge, Capt. Aaron Rugh, said the involvement of Czaplak in the email probe “may reasonably create a conflict requiring his withdrawal under due process.” While careful not to make any judgment on potential rules violations, Rugh said “the danger of investigation is sufficiently real” that a future conflict of interest could arise that would potentially impact the case.
The judge was expected to rule Tuesday on another defense motion to dismiss the case, Navy spokesman Brian O’Rourke said. Last week, Rugh ordered Gallagher released from custody because of trial delays caused by the email tracking controversy.
O’Rourke said the defense withdrew a separate motion to remove the judge in the case.
Gallagher’s case has been among those followed by President Donald Trump, who said last month that he is considering pardons for several service members who are accused of committing war crimes, but that he may wait until “after the trial” to make a decision.
“So we’re going to take a look at it. I haven’t done anything yet. I haven’t made any decisions. There’s two or three of them right now. It’s a little bit controversial. It’s very possible that I’ll let the trials go on and I’ll make my decision after the trial,” Trump told reporters last month.
The charge sheet said that Gallagher “did … with premeditation, murder a wounded male person” under his care by “stabbing him in the neck and body with a knife” while battling ISIS in Mosul in May 2017.
He is charged with shooting at a male and female noncombatant near Mosul in June and July of 2017, and is also accused of wrongfully retaliating against and “attempting to discourage members of his platoon from reporting his actions while in Iraq” when he and his unit were back in San Diego.