The prosecution of Navy Special Operations Chief Edward Gallagher began in September 2018, when Gallagher was charged with numerous offenses including premeditated murder, aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134. Gallagher was also placed into pretrial confinement based on accusations that he was intimidating witnesses.

The charges against Gallagher were serious, and the Navy acted like it was taking the case seriously. An experienced judge advocate – Navy Commander Chris Czaplak – was assigned to prosecute the case, and he was quoted by the New York Times in November, 2018, as taking a hard line approach:

In the hearing Thursday, a Navy prosecutor, Chris Czaplak, said the chief had done damage beyond murder.

“Does the public still believe we are the good guys, because Chief Gallagher decided to act like the monster the terrorists accuse us of being?” he said. “He handed ISIS propaganda manna from heaven. His actions are everything ISIS says we are.”

Those tables would turn dramatically before the case was over.

The case drew significant media attention as it proceeded to trial, and in early-2019 a military judge expressed concerns about leaks to the media in violation of a protective order. Those concerns prompted Government agents to investigate the source of the leaks by embedding tracking code into emails sent to defense counsel and a journalist. Their efforts were discovered, and they caused a crisis. The military judge – Navy Captain Aaron Rugh – ruled that:

“The NCIS intrusion placed an intolerable strain on the public’s perception of the military justice system,” Rugh wrote,”because an objective, disinterested observer, fully informed of all the facts … would harbor a significant doubt about the fairness of the proceeding.”

Furthermore, the issue led to Gallagher’s release from pretrial restraint and the disqualification of Commander Czaplak from the prosecution team:

Because the email intrusion delayed Gallagher’s trial by three weeks, Rugh released him from pretrial restraint on May 30. On June 3, Rugh disqualified Czaplak from the prosecution team and McMahon was removed by the Marine Corps.

Yet there was still more to come.

The most serious allegation against Gallagher was that he murdered a teenage ISIS fighter who was a prisoner and receiving medical care, by stabbing the prisoner in the neck. Multiple witnesses testified that they saw Gallagher commit the stabbing. But then the prosecution presented Special Warfare Operator 1st Class Corey Scott – another SEAL – who testified under a grant of immunity and said that he – not Gallagher – was the one who killed the prisoner, by closing off the prisoner’s airway and watching him die. Moreover, while Scott corroborated that Gallagher stabbed the prisoner, Scott testified that the prisoner would have survived the stabbing but for Scott killing him.

Scott’s testimony was a bombshell that further undermined the Navy’s seriousness in prosecuting the case (since Scott was, after all, a prosecution witness testifying under a grant of immunity from the Government). In the aftermath of the testimony, Gallagher’s civilian defense counsel was quoted by the Navy Times as stating:

“Corey Scott’s testimony today was a microcosm of this entire case, a bundle of themes that we pointed out,” Timothy Parlatore said.

“First, the truth is Eddie Gallagher’s best defense. But the other thing is what a botched investigation and prosecution this has been from the beginning and Corey Scott’s testimony today should force everyone to ask deeper questions about how we got here.”

The trial ended soon afterward with Gallagher’s acquittal of everything except for a single violation of Article 134 for wrongfully posing for a picture with a human casualty (the teenager, of course). For that relatively minor infraction Gallagher received a sentence of confinement for four months (less time than he had spent in pretrial confinement), reduction one pay grade (from E-7 to E-6), and forfeiture of pay for four months. But subsequent action by the Chief of Naval Operations and the President disapproved all reduction, clearing the way for Gallagher to retire in grade.

Yet there was still more to come.

A week after the trial was over, members of the prosecution team received military awards for their work on the case, including seven Navy Achievement Medals and three letters of commendation. Word of the awards soon reached the White House, and the President tweeted his disapproval:


The awards were quickly rescinded. And then the Chief of Naval Operations ordered a review of the leadership and performance of the Navy JAG Corps. The Secretary of the Navy went a step further, ordering a separate review of the Navy and Marine Corps legal communities.

Yet there was still more to come.

On November 19, Gallagher’s civilian defense counsel filed a 16-page complaint with the DoD Inspector General alleging seven categories of improprieties in connection with his case:

1. Misconduct by NCIS personnel in the investigation and presentation of charges;

2. Misconduct by RLSO SW personnel in the suppression of evidence;

3. Misconduct by NCIS, RLSO SW, COS RLSO, and OJAG in the illegal warrantless tracking of defense counsel’s emails;

4. Intelligence oversight of NCIS’s practice of using counter-intelligence assets for law enforcement purposes in violation of EO 12333;

5. Misconduct by WARCOM and subordinate command personnel in attempting to improperly influence the proceedings and taint the jury pool;

6. Misconduct by WARCOM command personnel for acts of reprisal against SOC Gallagher after POTUS ordered his release from pretrial confinement; and,

7. Misconduct by WARCOM and subordinate command personnel in retaliating against SOC Gallagher after the conclusion of the trial.

Those allegations strike at the very heart of the military justice system and the constitutional protections guaranteed to every American. The very things – one might say – that convince the public that we are the good guys and not everything ISIS says we are.

Yet there was still more to come.

After the trial, the Navy’s Special Warfare Command initiated a Navy Classification Review of Gallagher and others accused of misconduct in connection with the case. The review could have stripped Gallagher of his SEAL classification and the associated trident insignia. But word of that review also reached the White House, and the President again tweeted his disapproval. And then the Secretary of the Navy – Richard Spencer – made some kind of secret deal with the White House to allow Gallagher to retire without any reduction in rank and without losing his status as a SEAL.

That secret deal caused the Secretary of Defense to fire Spencer on November 24.

And yet there still may be more to come.

On December 31 the New York Times published a piece titled From the Brig to Mar-a-Lago, Former Navy SEAL Capitalizes on Newfound Fame. In it, reporter Dave Philipps characterizes Gallagher as “a conservative influencer with close ties to the man who helped clear him — President Trump.” The piece ends with the following paragraphs and not a touch of irony:

Earlier this month Chief Gallagher attended the conservative youth organization Turning Point USA’s Student Action Summit with his wife, Andrea, where he met with Donald Trump Jr. A short time later, he was at Mar-a-Lago with Mr. Trump.

A few days after that, Chief Gallagher posted a photo of himself giving the thumbs up, wearing a KILL BAD DUDES muscle shirt, while holding a mug that reads, “I love when I wake up in the morning and Donald Trump is president.”

And so it seems unlikely that the fallout from the Gallagher case is over.

That makes the court-martial prosecution of Navy Special Operations Chief Edward Gallagher the #1 Military Justice Story of 2019.

13 Responses to “Top Ten Military Justice Stories of 2019 – #1: The court-martial of Special Operations Chief Edward Gallagher”

  1. Vulture says:

    Heard Gallagher parachuted into Baghdad airport today, single-handed knifed the Iranian Revolutionary Guard, then exploded when he pulled off his trident.
    Materialized on the Navy/Army game half-time show three weeks ago and has been hiding out as an investigator of the “circle game” controversy.
     
    Now tell me that isn’t the weirdest thing you have heard this year.

  2. stewie says:

    Throw up the witness quotes from his trial and around that time from his own Seal brethren. The fallout isn’t over because this isn’t some great guy doing great things, even if there was misconduct or bad conduct by the government at/around his trial. It’s one thing to say, don’t like the way the trial went, wasn’t fair, so I’m pardoning. It’s another to hold up this guy as a hero and celebrate him.

  3. Vulture says:

    Edward Gallegher is making a fashion line- 
    – joining Johnny Manzel as yet another to capitalize off of failure in every aspect of their potential.
     
    Don’t worry Stewie.  There are no shortages of people that see “Eddy Warfighter” for the joke he has become.
     
    He wants to make out like Chuck Norris’s beard.  But this clown is going to go down in history as Donald Trump’s pubes.  
    Happy new year!

  4. af_dc says:

    A prime example of the military shooting itself in the foot, and yet another example of Trump wading in way too deep. Eddie Gallagher is demonstrably a bad human being.  He should have been kicked out of the Navy without a retirement.  His own SEAL team members turned him in, cried when they described what he did, and testified against him. 
    The military prosecutors were morons to try to do what they did. Even if the email tracker was legal (and I get how they concluded that it was), the optics are abominable and they should have had better judgment than to try it.  They got kicked in the teeth because of their lame brain plan, and rightfully so. 
    And then Trump came in and made Gallagher even more of a hero to the MAGA crowd, who are always seem pleased to hear of brown people in foreign countries being killed by our troops. Trump reasonably could have pardoned the dude based on the perception that he didn’t get a fair trial, I guess. Any other president would have just done so and not commented further. Instead he made him into crappy Captain America, invited him to Mar-a-Lago, and is promoting the guy’s clothing line. I don’t know what I expected. 
    Point it, everyone looks bad here — the prosecution, Gallagher, and Trump.  The only people who came out smelling of roses are Gallagher’s defense team, and good on them.  I can never be mad at defense counsel for doing their jobs well. 

  5. stewie says:

    Unfortunately, I think there are plenty of folks right here Vulture who think Gallagher is an American hero.

  6. Concerned Defender says:

    Commendable effort, but NONE of these top 10 come close to the soft coup of a duly elected Commander in Chief POTUS going on 3 years now of false premised investigations, years of false accusations (many by very very bad actors themselves like Avanati) and a falsely driven “impeachment” effort (doomed to fail) based on fabricated non-crimes after denial of due process.  The POTUS signs the NDAA afterall. 
     
    How this can escape intellectuals and lawyers or military justice practitioners is bewildering at the least.  This is a failed coup attempt at using a legal system to overthrow the Commander in Chief of the US Military.  Rich in legal issues; fake accusations, denial of due process.  Several fake claims and accusations.  Abuse of Congressional powers.  Deprivation of access to witnesses.  Hearsay galore.  Congressmen making false statements and abusing process.  Deep Constitutional analysis issues.  This is nothing short of a failed attempt of a governmental overthrow here, unfolding before our eyes. Total CAAFLOG fail here.
     
    A tragedy this doesn’t even make mention in a top 10 list on a LEGAL blog about such things… 
     
     

  7. Philip D. Cave says:

    CD — go away.
    Or stay but leave national politics to another blog.
    If you want to talk about the politicization of military justice then that’s a suitable debate to have. Some time ago Chief Justice Roberts talked about rough justice–IMHO opinion there are many who wish to make the UCMJ rougher and unjust–actually, not only wishing but doing. Under the ‘make rules (for the military) clause’ Congress has a duty to establish a system of military discipline and justice that is fair and effective. That means they must take into account at least three sides which are the the accused, the Service, and yes victims. When Congress fails to properly balance those competing interests they are IMHO derelict and in violation of their oath of office and the ‘make rules clause.’ Cuss me or challenge me on that — fine, but stay mission focussed on having a fair and just system of justice.

  8. Concerned Defender says:

    In rebuttal to Mr. Cave’s rude ad hominem commentary and incorrect position (“leave politics to another blog), military law and politics are frequently inseparably intertwined.  Any Presidential actions or pardons, allegations of UCI from the POTUS or Congress members, statements by POTUS and Congress on sex assaults or handling of various cases (including statements or actions on Berdgahl, Manning, and a long list) in the recent past…. the signing of the NDAA every year is entirely political/UCMJ intermingled.  
     
    As a long time reader of CAAFLOG, the Presidents (Bush, Obama, and Trump) are frequent fliers in the stories here, based on statements, actions, changes in laws, etc.  This is not only no different but the largest military law related topic in decades. 
     
    Rogue folks have been trying since INAUGURATION to bring down a duly elected POTUS under pretenses of fake accusations, expensive false investigations, and non-crimes, and otherwise disable his ability to take Constitutionally protected actions, or defend himself from false accusations, and so forth.  If the same treatment were to any military MEMBER or your CLIENT it would be news story #1.  And this is the top person leading the US Military.   Maybe put political biases against Trump aside, and take a position faithful to the Constitution regardless of who that duly elected Commander in Chief is.   

  9. TC says:

    Can a top ten list be unfaithful to the constitution?  Also, I don’t think you understand the meaning of ad hominem.  

  10. anonymous says:

    1) Scenesetter: Navy JAGC shoots itself in the public relations foot when 04 dSJA with fitrep dispute files whistleblower complaint in Barry instead of traditional SJA advice to CA to cure UCI by kicking case up.  Creates public perception of Navy JAG bias in special warfare cases. 04 dSJA and TJAG provide conflicting testify about what happened, but judge Spath finds whistleblower more credible because he explained why he remembered conversation he did not hear.
    2) Enter Gallagher, where a skilled Navy prosecuter has rings run around him in the media by a skilled civilian defense attorney, a SWO classmate from United States Naval Academy, who is no longer bound by Navy rules regarding media and politics but clearly knows the Navy and what hurts/works.  No information why government didn’t just go after stabbing with multiple witnesses (or why they tried an unclassified case with classified ROE).  At the lowest level, Senior Prosecutor and environmental attorney RLSO CO get canned…  No senior JAG accountability or mention of the intense oversight and weekly reports to CNSLC/JAG/OJAG… but then CNO/SECNAV step in to order comprehensive review of JAGC leadership with dates suspiciously matching the prior TJAGs term of influence…
    3) Where do we go from here?  Will the tardy comprehensive JAG review somehow determine retired TJAG accountable by retroactive retirement grade determination?  Will the Navy be able to keep the comprehensive review below the radar as ‘pre-decisional’ FOIA until the media cycle moves on? Or, more likely will it (based on Navy JAGC input) determine Navy JAGC is simply underfunded.
    4) Will the military justice system stand (with Congress taming UCI) or is now the hour for the advocates of civilianization of non-military offenses?  Or, more likely, will this all just fade in the next news/election cycle without being addressed?
    5) Will the world lose faith in United States compliance with law of armed conflict and rule of law, or does everyone believe it is just temporary politics/zealous advocacy?
    6) Will the Navy delve back into the case to determine if the junior seals really conspired to falsely testify their Chief committed murder?  It seems really weird that civilian defense counsel who sold this story doesn’t want the Navy do do so…
    7) !Most importantly, who should play Mr. and Mrs Gallagher in the upcoming movie?  Matt Damon and Tea Leoni?  Or Mark Whalberg and Scarjo?
     

  11. anon says:

    Looking forward to hear the outcome of Tim Parlatore suing NYT for not matching what he told Navy Times
    https://www.military.com/daily-news/2019/12/27/eddie-gallaghers-attorney-says-hell-sue-ny-times-claiming-fake-reporting.html

  12. Palmerston1860 says:

    CD – for you to accuse others of a rude ad hominem attack is priceless.  Have you finally taken your necessary psychotropic drugs and then suffered a withdrawal?  Perhaps CD now stands for Charlatan – D-bag.

  13. RDC says:

    anonymous: Please read the transcripts of the DuBay hearing before expounding upon the facts in Barry.
    1) Scenesetter: Navy JAGC shoots itself in the public relations foot when 04 dSJA with fitrep dispute files whistleblower complaint in Barry instead of traditional SJA advice to CA to cure UCI by kicking case up.  Creates public perception of Navy JAG bias in special warfare cases. 04 dSJA and TJAG provide conflicting testify about what happened, but judge Spath finds whistleblower more credible because he explained why he remembered conversation he did not hear.
    O4 DSJA discusses potential UCI issue with O5 SJA who determined no UCI, which was seconded by two CAAF judges in the minority opinion.  About two years later, O4 DSJA, after discussing issue with another senior SJA, alerts appellate government about a conversation relayed by CA between CA and former CNLSC, which is then relayed from appellate government to appellate defense via several intermediaries along with some sensationalized distortions.  AFTER issue becomes public with the revelation of CA’s affidavit, THEN “environmental attorney RLSO CO” takes action on O4 DSJA’s fitness report.  When CAAF ruled on Barry dismissing the conviction, DSJA (now 05 (sel) via FY17 SSB) had not filed a whistle blower complaint concerning the case.
    Also, there was no conflicting testimony between DSJA and TJAG because DSJA testified to what CA relayed to DSJA, not the actual conversation between TJAG (former CNLSC) and CA.   Nor was there conflicting testimony between DSJA and CA.  CA testified that his “feeling” from his meeting with then CNLSC was that “folks are going to be looking over your shoulder like – everywhere.”
     

     

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