Military prosecutors in the case of a Navy SEAL charged with killing an Islamic State prisoner in Iraq in 2017 installed tracking software in emails sent to defense lawyers and a reporter in an apparent attempt to discover who was leaking information to the media, according to lawyers who told The Associated Press that they received the corrupted messages.
The defense attorneys said the intrusion may have violated constitutional protections against illegal searches, guarantees to the right to a lawyer and freedom of the press.
"I've seen some crazy stuff but for a case like this it's complete insanity," said attorney Timothy Parlatore. "I was absolutely stunned ... especially given the fact that it's so clear the government has been the one doing the leaking."
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Parlatore represents Special Operations Chief Edward Gallagher, who has pleaded not guilty to a murder count in the death of an injured teenage militant he allegedly stabbed to death in 2017 in Iraq. Gallagher's platoon commander, Lt. Jacob Portier, is fighting charges of conduct unbecoming an officer for allegedly conducting Gallagher's re-enlistment ceremony next to the corpse.
The case against Gallagher, a decorated SEAL, has attracted the attention of congressional Republicans who have called for prosecutors to drop the case. And President Donald Trump tweeted in March that Gallagher was being transferred to less restrictive confinement to honor "his past service to our country."
After Trump's tweet, Gallagher was moved out of the brig to a hospital, where he is currently confined.
Attorneys for Portier on Monday asked a military judge to force prosecutors to turn over details identifying who authorized the monitoring, what they were seeking and whether the intrusion recorded when emails were opened or gave greater access to the lawyers' computers or devices.
Embedding emails with "devices designed to monitor defense communications" implicates Portier's right to counsel and right against unreasonable search and seizure," wrote Air Force Lt. Col. Nicholas McCue, one of Portier's defense lawyers. He said he wanted to make sure the measure didn't violate the confidentiality of Portier's communications with his attorney.
Ret. Lt. Col. Gary Solis, who teaches law at Georgetown and as a Marine Corps lawyer prosecuted some 400 cases and was a judge on more than 300 others, said he had never heard of hidden cyber tracking software sent to defense lawyers by prosecutors.
"Not only is it ethically questionable, it may be legally questionable," Solis said. "When it's apparently so easily discoverable when done in an ineffectively haphazard manner it's more than ethically questionable, it's questionable on an intellectual level."
The prosecutor, Cmdr. Christopher Czaplak, declined to comment Monday.
Navy spokesman Brian O'Rourke told NBC 7, “The investigation into leaked protected documents in the Gallagher case is still ongoing. It would be inappropriate to comment at this time.”
Navy prosecutors have said Gallagher during his eighth deployment indiscriminately shot at Iraqi civilians and stabbed to death a captured Islamic State fighter estimated to be 15 years old. He also posed with the teen's corpse at his re-enlistment ceremony, prosecutors said.
Gallagher's lawyers have said the allegations were made by disgruntled SEALs out to get Gallagher because he was a demanding leader.
Gallagher faces trial May 28 and Parlatore said prosecutors should focus on that and not on sending communications intended at spying on defense lawyers.
The emails were sent last Wednesday to 13 lawyers and paralegals on their team — and to Carl Prine, a reporter for the Navy Times newspaper.
Prine has reported extensively on the case and has broken several stories based on documents provided by sources.
While documents are subject to a court order not to be shared, none has been classified, Prine said.
The tracking software was discovered almost immediately by defense lawyers who couldn't help but notice an unusual logo of an American flag with a bald eagle perched on the scales of justice beneath the signature of Czaplak. It was not an official government logo.
Parlatore said suspicious tracking software was embedded in the logo. He contacted Czaplak to make sure his email had not been hacked.
"I can't imagine you'd be trying to track defense attorneys' emails," Parlatore said he told Czaplak. "I want to make sure your system hasn't been compromised."
He said Czaplak told him he would check on it.
Two days later, during a closed-door meeting with the judge in San Diego, the defense pushed for more answers and the prosecutor acknowledged sending something as part of an investigation, but declined to elaborate, Parlatore said.
The defense lawyers want to know if the software recorded where and when they opened an email message and who they may have forwarded it to — or if it was more intrusive and installed malware on their computers and possibly gave prosecutors access to other files.
McCue, one of Portier's lawyers, said he notified Air Force cybersecurity experts who recommended that he stop sending privileged emails through a military communications system designed for sensitive, but non-classified materials.
Further, because they don't know the extent of the monitoring, McCue said Air Force defense lawyers had to take action to prevent communications with defendants in hundreds of cases from being compromised.
Gallagher is also under investigation for the shooting death of a civilian in Afghanistan in 2010, according to a 439-page document leaked to The New York Times.
In the recently leaked document are allegations that SEAL team leadership discouraged team members from coming forward to report the alleged incidents.
NBC 7 San Diego has not confirmed the information in the document leaked to the Times, but sources say the U.S. Navy was aware of the incident in Afghanistan.
Gallagher's military trial had been scheduled to begin at the end of May.