Gallagher’s team said the charges against the Navy SEAL should be dismissed because of prosecutorial misconduct.
One example they used was that the prosecution gave Gallagher a lie detector and he passed—but the prosecution allegedly didn’t tell his lawyers or the court. The prosecution was also accused of spying on defense lawyers and reporters using email tracking programs.
The order to release him from confinement was made by judge Capt. Aaron Rugh, who said that freeing Gallagher was a remedy for interference by prosecutors, reported the Navy Times. Rugh said during the hearing that prosecutors did not inform him about the email monitoring.
“Rugh said prosecutors had told him privately they planned to embed code in what he believed to be a court document to help them find the source of leaks. But he said he didn’t have the power to authorize such an investigative tool, and wasn’t told they planned to plant the code in emails to defense lawyers or a journalist,” the Times reported.
“Rugh said he thought prosecutors were coordinating the investigation with the U.S. attorney’s office in San Diego. Rugh said he wasn’t aware that a federal prosecutor told the military prosecutor to make sure they had the judge’s approval before launching the tracking effort.”
Evidence at the hearing showed prosecutors had enlisted a Naval Criminal Investigative Service intelligence specialist to conduct criminal background checks on three civilian lawyers, including Gallagher’s lawyer, Tim Parlatore, and a journalist with the Navy Times who has broken several stories based on leaked documents.
The defense said most of the articles based on leaks have been favorable to the prosecution, yet the investigation did not target prosecutors or NCIS investigators.
Prosecutors tried downplaying the email monitoring. Cmdr. Christopher Czaplak said at a hearing earlier Thursday that the code embedded in the email recorded nothing more than where and when messages were opened by recipients.
Efforts to get the case thrown out came as President Donald Trump considers pardoning several service members accused of war crimes, including Gallagher. Gallagher faces trial on June 10. Trump previously got Gallagher removed from the brig and transferred to better custody conditions at a Navy hospital.
Gallagher has pleaded not guilty to murder in the death of an injured teenage terrorist in Iraq in 2017 and attempted murder for allegedly picking off civilians from a sniper’s perch.
The release from confinement also came after U.S. Rep. Duncan Hunter (R-Calif.) recently released video footage that he said showed Gallagher attempting to save the life of the ISIS fighter that the Navy SEAL is charged with killing, reported Breitbart.
“You have the very few select guys who go outside the city gates and do bad things to bad people, and carry our U.S. flag to foreign soil, while the other 99 percent of folks sit back here and try to judge those fighters, those warriors who fight on our behalf—on the American people’s behalf,” Hunter said.
“The people sitting back here, the bureaucrats, the lawyers, and the politicians, try to judge those warriors in the context of our freedom, safety, and security and rules of law back here at home. It’s happened over a period of time. It didn’t happen all of a sudden.”
Gallagher’s wife told the outlet recently that her family has suffered since her husband was charged.
“We’ve gone through eight deployments as a family, raising three children and really sacrificing my husband to the war on terror was our goal of achieving victory over what happened on 9/11,” Andrea Gallagher said.
“Over the years, we let him go time and time again. Never in a million years would I have foreseen that on his very last combat trip, which was to Mosul where he was previously awarded number one chief and number one platoon, he was tasked with clearing Mosul of ISIS, which he succeeded in, and then over a year later he would come back to a disgruntled group of individuals who … set up a plot to take him down.”
The Associated Press contributed to this report.