Chief Special Warfare Operator Edward Gallagher, a Navy SEAL, was acquitted of nearly all charges in his 2019 war crimes court martial, in a case complicated by the prosecution’s conduct. Although the prosecution’s attempt to monitor defense communications was not cited as the basis for the verdict, the episode carries implications for future cases.
Cases of this size reach the public in fragments, and the fragments tend to be about the personalities involved. What matters to a service member facing charges is narrower: what the military judge did about the government’s conduct, and when. Joseph L. Jordan, Attorney at Law defends courts martial in the Army, Navy, Air Force, Marine Corps, Coast Guard, and Space Force, and questions of this kind are litigated in motions long before a panel hears anything.
The Case and the Verdict
The sequence here is worth following closely, because a military judge’s response to government misconduct is a remedy fashioned during the trial rather than a verdict. Mr. Jordan has taken more than 250 cases to verdict, and remedies of this kind are obtained by motion, on a record, while the proceeding is still running.
Gallagher was accused of war crimes including the killing of a captured Islamic State prisoner during a 2017 deployment to Iraq. The case became more complicated when it emerged that the prosecution had embedded tracking software in emails sent to the defense team.
In response to the tracking, Gallagher’s defense counsel asked the military judge to dismiss the charges. The judge removed the lead prosecutor instead.
The lead prosecutor, Navy Cmdr. Christopher Czaplak, stated that the tracking image, a logo of a bald eagle with an American flag, would only indicate when messages were opened. The decision to remove him was reinforced by the fact that the emails went not to service members under investigation but to defense attorneys, and that an editor at Navy Times also received one.
The tracking mechanism was reported to be capable of collecting email and IP address information from any recipient who opened the message, including after the message was forwarded. That capability, rather than the eagle logo itself, was the substance of the defense objection.
Gallagher was acquitted of all charges except one specification of wrongfully posing for a photograph with a human casualty. He was sentenced to a reduction in rank, forfeiture of pay for four months, and confinement for four months, which had already been served pretrial.
The case did not end at sentencing. On 15 November 2019, President Trump directed that Gallagher be restored to the grade of E-7, reversing the reduction in rank. That action returned the rank; it did not disturb the remaining conviction.
What the Case Established, and What It Did Not
The military judge did not state that the prosecution’s conduct caused the acquittals. Drawing a direct line between the two would be speculation.
What can be said is narrower and still useful: the tracking episode created a live risk of a mistrial, and that risk shaped how the case was litigated from that point forward. Defense counsel should examine prosecutorial methods as a matter of routine, because procedural irregularities can create leverage that the merits alone do not.
The Broader Point for Service Members
Government misconduct rarely wins a case outright. What it produces is a remedy, and a remedy has to be asked for, documented, and preserved while the trial is still running. That is work counsel does in real time, on the record. Mr. Jordan served as an Army prosecutor before opening his own practice, and in a case where the government’s conduct is in question, the record made at trial is what any later relief will rest on.
Two practical lessons come out of this case.
Privileged communications are not self protecting. If you are under investigation, assume that the government is interested in your communications and be deliberate about how you and your counsel exchange information.
Procedural violations matter even when they do not decide the case. The remedy a judge grants for misconduct may be narrower than what the defense requests. Documenting the violation preserves the issue for appeal even when the immediate motion is denied.
Representation for Service Members in All Branches
Joseph L. Jordan, Attorney at Law is a former Army JAG officer who represents service members in all branches of the armed forces, at installations in the United States and overseas. Having prosecuted cases himself, he knows what the government’s side of the file should and should not contain.
If your case involves questions about how evidence was gathered or how the government has communicated with your defense team, call (888) 643-6254 to discuss it.