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."
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 fact that prosecutors have embedded their emails with devices designed to monitor defense communications at least implicates the Fourth and Sixth Amendment rights of Lt. Portier, and also impacts Air Force defense operations in the entire Western Circuit," wrote Air Force Lt. Col. Nicholas McCue, one of Portier's defense lawyers.
"In this case, discovery of the requested items is important to ensuring the prosecution in this case did not take any part in arranging or permitting an intrusion into Lt. Portier's attorney-client relationship."
The prosecutor, Cmdr. Christopher Czaplak, declined to comment Monday. Navy spokesman Brian O'Rourke did immediately return a phone message from The Associated Press seeking comment.
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 installed malware on their computers and possibly gave prosecutors access to other files.
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.
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