Capt. Aaron Rugh (ROO) said Friday that refusal to testify could be a sign of culpability.
Rugh is considering whether to dismiss murder and other charges against Special Operations Chief Edward Gallagher.
Defense lawyers accuse prosecutors of misconduct and want them removed if the judge doesn’t throw the case out.
Prosecutors have downplayed the effort to embed code in emails sent to the defense and a journalist in an effort to find the source of news leaks.
Rugh unexpectedly released Gallagher from custody Thursday as a remedy for interference by prosecutors.
Gallagher has pleaded not guilty to crimes in Iraq.
Attorneys for a decorated Navy SEAL facing a murder trial in the death of an Islamic State prisoner will try again to have the case dismissed after their client was unexpectedly freed from custody.
A military judge in San Diego released Special Operations Chief Edward Gallagher on Thursday, saying it was a remedy after prosecutors interfered with his Sixth Amendment right to counsel.
Gallagher declined to comment.
Gallagher’s lawyers have condemned the prosecution for launching an unusual effort to find the source of news leaks in the politically charged case by embedding tracking code in emails sent to defense attorneys and a reporter.
The hearing on their request to dismiss the case continues Friday.