Monday marked the start of jury selection for the court-martial trial for a U.S. Navy SEAL charged with murder in the stabbing death of an Iraqi war prisoner, a case that garnered attention from both congressional leaders and the president.
Special Operations Chief Edward Gallagher has pleaded not guilty to premeditated murder in the killing of the Islamic State prisoner in his care and attempted murder in the shootings of two civilians in Iraq in 2017 in separate incidents.
Gallagher says disgruntled platoon mates fabricated the allegations because they didn't like his tough leadership.
The jury will consist of 11 service members, including eight Marines and three who serve in the Navy. Among the 11 jurors are a colonel and a woman.
The jury selection process could be finalized as early as Tuesday.
Navy judge, Capt. Aaron Rugh, is allowed Gallagher's defense to reject two more potential jurors without cause than usual.
That's because Rugh earlier this month ruled the prosecution violated Gallagher's constitutional rights against illegal searches in their effort to track defense emails to find a news leak. Lawyers said investigators embedded tracking software in emails sent to them.
The move did cast doubt on Gallagher's ability to get a fair trial, the judge ruled, but instead of dismissing the case as the defense team requested, Rugh removed the lead prosecutor, released Gallagher from custody, and lessened the maximum penalty he faces if convicted.
Gallagher now faces life imprisonment with parole instead of no parole if convicted of premeditated murder.
Evidence presented at hearings last month showed an intelligence specialist from Naval Criminal Investigative Service conducted criminal background checks on three of Gallagher's civilian lawyers and a Navy Times journalist who has broken several stories based on documents that are only to be shared among lawyers in the case.
The defense discovered the tracking code hidden in a suspicious logo of an American flag with a bald eagle perched on the scales of justice beneath the signature of lead prosecutor Cmdr. Christopher Czaplak.
Prosecutors downplayed the effort, saying it only gathered data, such as internet protocol addresses, and did not snoop on the content of emails. The government said the investigation did not find the source of leaks.
Rugh removed Czaplak from the case because he said the potential for an investigation into his actions could present a conflict. He said it was not within his power to determine whether Czaplak engaged in misconduct.
The prosecution also tracked emails of the lawyers of Gallagher's commanding officer, Lt. Jacob Portier, who faces charges of conduct unbecoming an officer after being accused of conducting Gallagher's re-enlistment ceremony next to the Islamic State militant's corpse.
Gallagher's family maintains he cannot get a fair trial.
"The court's ruling, recognizing a direct violation of Chief Gallagher's constitutional rights but not dismissing the case, sends a chilling message to every man and woman in uniform," his family said in a statement.
The judge said the effort also harmed the public's perception of the military justice system, which has been criticized for being ineffective and has gained few war crime convictions.
Trump, who intervened to move Gallagher to less restrictive confinement in March, said last month he is considering a pardon for several American military members accused of war crimes.
Gallagher was being held in the brig at Marine Corps Air Station Miramar until early June when Rugh ordered his release to the barracks just 15 hours after President Donald Trump announced the move in a tweet.
The tweet came after 18 Republican members of the U.S. House sent a letter to Navy Secretary Richard Spencer raising concerns about the conditions of Gallagher’s confinement at the brig.
Gallagher is accused of killing a teenage Islamic State fighter under his care and then holding his reenlistment ceremony with the corpse. Navy prosecutors also accuse Gallagher of shooting two civilians in Iraq and opening fire on crowds. Gallagher has pleaded not guilty to all the charges.
In their March 18 letter to Spencer, the House members said Gallagher’s family and friends reported that he had not had sufficient access to his defense attorneys. They also said they got reports he was not receiving enough food or adequate medical care.
NBC 7 contributed to this Associated Press report