SEAL's Trial Delayed As Defense Seeks Info On Email Snooping

Speaker 1: 00:00 The war crimes trial of Navy Seal Edward Gallagher has been delayed. The trial was set to begin Tuesday at Naval Base San Diego Lawyers for Gallagher say prosecutors may have broken the law in their investigation into leaks to the press defense. Attorneys want the judge in some of the military prosecutors removed from the case. It's the latest twist in the politically charged prosecution of a navy seal chief accused of murdering and Islamic state prisoner and shooting two civilians in Iraq. Joining me is KPBS military reporter Steve Walsh. Welcome. Now, Steve, what happened in court yesterday? So yesterday, the defense was basically laying the groundwork to build the case for either dismissing the charges or having the judge or the prosecutor recused themselves. It's all based on this electronic tracking bug that prosecutors had placed in a software that was sent to the defense into reporters including call [inaudible] navy times, who's a former ut reporter who has received hundreds of pages according to his reporting from this case. Speaker 1: 01:03 And the prosecutors say they did this because they wanted to track the Ip addresses of who was receiving leaked material. Is that right? Well, that's the, that is the detailed answer there. They were trying to track down these leaks again, the navy times, I believe the ut has received some as well as the New York Times and they've talked about how they've received hundreds of pages of documents. The thing about the way the military court works is a, none of this is really public. And now if this were in federal court, we could go look at the electronic docket and we could look at the motion. Some of these things would be sealed, but those would be very specific things. In the case of military court, I've seen the charging documents. Those have been made public, but that's about it. So it's very hard for the average person even track this case. Speaker 1: 01:50 What details did Gallagher's attorney provide in his argument that the judge and military prosecutors should be removed from the case? Well, we have yet to see a, an expert witness to describe exactly what this electronic software does. The defense is saying that it allows you not to only track where this, uh, these documents may have been sent, but actually read the contents of let's say a defense attorney's emails. But what they really ended up doing is setting the stage for a hearing coming up on Wednesday where they're supposed to produce these expert witnesses and go through this and, and really drill down into whether or not these charges might be dismissed or the judge or the prosecutors might be tossed out. What was the judge's response to this accusation? Well, the judge is clearly taking this seriously. He, uh, was saying that he did not really see an instance where he would have to recuse himself, but he was open to the argument. Initially, Eddie Gallagher, his attorney to impella. Tori was targeting the judge saying that he knew about this after the hearing. We talked to them a little bit and he kind of backed away from that and say that maybe the judge didn't know about this and this was the prosecutors. Speaker 2: 03:00 So earlier this week we heard that president Trump is considering pardoning chief Gallagher. Here's what Gallagher his lawyers said about that. Speaker 3: 03:08 Ultimately, my goal, my primary duty is to get my client home to his family and to have him, you know, not be facing jail time. Uh, so if offered a pardon, would he accept? I'm, I bet he would. Speaker 2: 03:22 So that's in the mix as well. And the momentum for issuing a pardon is reportedly coming from Congressman Duncan, hunter, other Republican lawmakers, Fox News correspondents, how our military officials, Steve Reacting to the possibility of a pardon? Speaker 1: 03:37 Well, it's, you know, people are falling on both sides of this. Some of them, um, are supportive of this whole notion. But then you have others who say that, you know, including some of the congressmen, the Republican Congressmen who have intervened earlier in this case has said that this sets a bad precedent, that this needs to go to trial in, in the military. Justice system has to work its way through that. Ultimately, this goes to America's reputation in the world, Speaker 2: 04:03 but there's another way besides a part and the president could possibly intervene in this case for, is that right? Speaker 1: 04:08 Again, military justice works a little bit differently than a normal court. You have what's called a convening authority. You say a commanding offers. That's the person who decides who goes to court marshal and a few other things. If president Trump wanted to, as the commander in chief, he could become the convening authority in this case and then he could dismiss the charges, which is actually one of the things I'm Palatar he mentioned in the hearing that he could do. Speaker 2: 04:33 Steve, you've covered a lot of trials as a journalist, but you say this one is particularly unusual. Can you tell us Speaker 1: 04:39 why? Well, you know, it is unusual to have a seal on trial for war crimes to begin with. These are the most highly trained special operators in, you know, in the military. They're not usually caught up in these kinds of cases to begin with, so that would make it high profile in and of itself. But you've seen the family getting out there very early on after he was taken into custody September 11 and as many as 20 different Republican congressmen have interviewed, the president has intervene earlier. In this case. Having moved from the brig to the Naval Hospital in San Diego, you don't normally see this kind of attention for one court martial and the amount of publicity and the whole notion of whether or not the prosecutors were spying on the defense. It's a bit of a circus. It's kind of hard to see how all of this is going to play out. And uh, you could hear the frustration in the judge's voice during that hearing yesterday, Speaker 2: 05:33 and this is all supposed to resume in one form or another next Wednesday. Speaker 1: 05:37 There'll be hearing next Wednesday that will decide some of these key issues, like whether or not the prosecutors a will be accused. It's still set to go on Friday. That's what the judge says. The judge would like to have this whole thing done by July. So even if there's a delay, I don't expect it to be a very long one though in the middle of this, president Trump has said, or he hasn't said, but we've heard reporting that he may pardon him on Memorial Day. So we don't know how this is all gonna turn out. I've been speaking with KPBS military reporter, Steve Walsh. Steve, thank you. Thanks, Maureen.