Trial begins for U.S. navy SEAL accused of murdering ISIS detainee

Opening arguments began Tuesday in the trial of a U.S. navy SEAL on charges of murdering a wounded Iraqi prisoner and shooting unarmed civilians, a war crimes case that has drawn the attention of U.S. President Donald Trump.

A jury of five marines and two navy members were chosen for the high-profile and politically charged court-martial proceedings, which began on Tuesday at the U.S. Naval Base in San Diego. They must decide whether Ed Gallagher murdered a teenage ISIS fighter or is being framed by mutinying sailors he commanded and who are testifying against him.

Prosecutors say Gallagher, 39, who began his 18-year career as a medic, briefly treated the young ISIS fighter, then pulled out his knife and stabbed him in the neck several times.

Prosecutor Jeff Pietrzyk introduced a photo showing Gallagher holding the dead youth by the hair. "Then he celebrated that stabbing, celebrated the murder, when he took photos and performed his re-enlistment ceremony over that body," Pietrzyk said.

Defence attorney Timothy Parlatore told the jury in his opening statement the prosecution cannot present a body or a crime scene and therefore has no case.

"This is about a group of mutinous sailors and a sham investigation."

The platoon leader is also charged with attempted murder in the wounding of two civilians —a schoolgirl and an elderly man — shot from a sniper's perch in Iraq.

Gallagher has denied all the charges but could face life in prison if convicted in the trial arising from his 2017 deployment to Mosul, Iraq.

He maintains fellow SEAL team members in his platoon, who turned him in and are testifying against him under grants of immunity, are disgruntled subordinates who fabricated allegations to force him from command.

Prosecutorial misconduct alleged

The opening of the trial was postponed several times by a lengthy round of proceedings to deal with defence allegations of prosecutorial misconduct.

Gallagher's lawyers sought dismissal of the charges after learning that navy prosecutors had electronically tracked email communications of defence lawyers without a warrant, ostensibly to pinpoint the source of material leaked from sealed case files.

The presiding judge, a navy captain, ultimately removed the lead prosecutor from the case and freed Gallagher from pre-trial confinement.

The judge also granted defence lawyers a potentially valuable edge in jury selection — the right to reject, with no reason given, two more potential jurors than they otherwise could exclude through the use of a peremptory challenge.

Before he was released from custody late last month, Gallagher had been ordered restricted to base at the nearby Naval Medical Center San Diego.

The confinement itself had already been the subject of news stories on conservative media outlets. Trump, responding to a Fox and Friends segment on Fox News, tweeted on March 30: "In honor of his past service to our Country, Navy Seal #EddieGallagher will soon be moved to less restrictive confinement while he awaits his day in court."

Trump said last month that he is considering pardons for a number of military service members accused of war crimes, and Gallagher's case was believed to be one of those under review. Last month, he pardoned army veteran Michael Behenna, who was convicted of murdering an Iraqi prisoner in 2009.

The prospect of presidential clemency seemed heightened by last month's appointment to Gallagher's defence team of Marc Mukasey, one of Trump's personal lawyers.

Ted Lieu, Democratic California congressman and an air force veteran who helped prosecute cases in the military, expressed alarm that Trump was even speculating about the case before it had been adjudicated.

"The charges against Gallagher are deadly serious," Lieu said on Twitter on May 18. "[The president] should not circumvent the court-martial process. Let military jurors decide."

Parlatore has said his client has not sought a pardon.

At least two Republican congressmen have also spoken out in support Gallagher.

Dan Crenshaw of Texas, a former navy SEAL, had expressed concerns about Gallagher's detention before he was released, while Duncan Hunter from California expressed doubts Gallagher could get a fair trial in the wake of the allegations about the prosecution.

Hunter, a former marine who served in Iraq, raised controversy when he told a town hall in late May that like Gallagher, he too had posed for a picture alongside a corpse while serving.

"Eddie did one bad thing that I'm guilty of, too — taking a picture of the body and saying something stupid," said Hunter.