Navy tracked emails in criminal case
Judge says agents went too far to identify a reporter’s source in SEAL’s murder trial.
SAN DIEGO — A plan hatched by Naval Criminal Investigative Service agents to identify a reporter’s source in a criminal case led to a crisis in the public’s perception of the military justice system, a Navy judge said in a ruling Friday.
The plan to use a computer code to track emails sent to defense lawyers and a reporter resulted in the firing of a Navy prosecutor, a lighter potential sentence if the Navy SEAL on trial is found guilty, and concerns about privacy rights and freedom of the press.
The trial of San Diegobased Navy SEAL Edward R. Gallagher is set to begin Monday.
Gallagher is charged with killing a wounded teenage Islamic State fighter brought to him for medical treatment in Iraq in 2017. He is also charged with shooting two civilians and firing into crowds with a sniper rifle. Gallagher pleaded not guilty to all charges.
The judge, Navy Capt. Aaron Rugh, describes in his 21-page ruling how Navy investigators and prosecutors launched the email tracking plan. He paints a picture of investigators so eager to track down a reporter’s source that they ignored an assistant U.S. attorney’s advice to get a judge’s permission.
Rugh ruled that the NCIS and the prosecution had violated Gallagher’s rights and damaged perceptions of his court-martial.
“The NCIS intrusion placed an intolerable strain on the public’s perception of the military justice system,” Rugh wrote, “because an objective, disinterested observer, fully informed of all the facts ... would harbor a significant doubt about the fairness of the proceeding.”
According to Rugh, the leak investigation began Jan. 8, months after a judge issued a protective order on case materials. The Navy Times received thousands of pages of investigative documents, the publication reported.
Seeking the source, NCIS searched computers at San Diego’s Region Legal Services Office and Navy email servers. When they found no leaks, NCIS moved on to prosecutors and NCIS agents on the case.
NCIS interviewed Navy prosecutors Cmdr. Chris Czaplak and Lt. Brian John and two NCIS agents, Rugh said.
At the same time, the NCIS inspector general’s office reviewed NCIS’ database. An NCIS forensics specialist testified at a hearing that 189 agency personnel had accessed Gallagher case files, but it appeared nothing had been downloaded or stored on external media, such as a flash drive.
Having excluded Navy personnel, NCIS turned to the defense team. On May 2, Ronald Rader, an NCIS investigative computer specialist, proposed tracking protected documents by embedding an “HTML GET” code, Rugh said.
The idea was to embed the code in documents to be emailed so that when they were opened, the target’s email client, such as Outlook or Gmail, would read the HTML code and contact an NCIS-hosted server to “get” the related picture file, Rugh said.
Then the NCIS server could log the Internet Protocol address of the computer or cellphone opening the document. With the IP addresses, investigators could track where and when emails were forwarded. Rader testified that the code was not designed to infiltrate computer systems or read email contents.
Rader pitched the idea to his senior special agent, Melanie Otto, who took it to the assistant special agent in charge, Curtis Evans, and to NCIS’ staff attorney, Navy Lt. Eric Norton, Rugh said. Norton deemed the operation “legally unobjectionable,” he said.
Evans and an NCIS investigative analyst, Jenna Porter, met with Fred Sheppard, the assistant U.S. attorney, and Czaplak via telephone.
Informed of the plan to place “IP trackers” in court documents, Sheppard told them to seek Rugh’s authorization. He said he would research what approvals the Justice Department require for investigations involving attorneys and reporters, and he would ask if the U.S. attorney would open its own investigation, according to the ruling.
Rugh said NCIS didn’t meet with Sheppard again.
Norton, Otto and Evans declined to testify at the hearing or to comment for this story.
“We did not authorize email trackers in this case,” said Kelly Thornton, a spokeswoman for the San Diego U.S. attorney’s office.
On May 8, Czaplak and Evans met with Rugh and informed him of the plan to embed the HTML code in documents to be emailed to the defense, the ruling says. Evans told Rugh in writing that a “taint team” at NCIS, not the prosecution, would review any information obtained that might jeopardize the attorney-client privilege.
The email tracking operation began that day, the ruling says, but Rader and his supervisor, Mark Luque, modified the plan to include the HTML in the body of Czaplak’s email as well as the attachments, according to the ruling.
Rugh said in court he had no knowledge of this modification and did not have authority to approve it.
Czaplak sent the first email containing the code to Gallagher’s lead defense attorney, Timothy Parlatore. Three additional civilian defense attorneys, three military defense attorneys and a civilian defense investigator also received the email, Rugh said.
An hour later, Czaplak sent another email with the code to the defense team. This email, according to Rugh, had information about a possible anonymous threat to Gallagher. Czaplak also emailed Marc Mukasey, a personal attorney to President Trump who recently joined Gallagher’s defense team.
The next recipients were attorneys for Navy SEAL Lt. Jacob X. Portier, who served as Gallagher’s platoon commander and is facing separate charges.
Finally, on May 10, Czaplak sent an email with the HTML code to Carl Prine, the Navy Times reporter who had received protected documents. NCIS needed Prine’s IP address to complete its analysis, Rugh said in his ruling.
Almost immediately, defense attorneys alerted Czaplak that they had found the code.
Parlatore said at a news conference that he had seen this technology before in an unrelated case. The hint, he said, was the new image in Czaplak’s signature block in the email. That image held the code.
They ended the investigation on May 10, two days after the first email was sent, according to court testimony.
Rader testified that the data harvested by the HTML code included date and time the email was opened and the IP addresses of computers requesting the image file. With that, NCIS would be able to ascertain the email client and browser of the person opening the message, Rader said.
With that information, NCIS could potentially see patterns in defense behavior, Rugh said.
Investigators performed a “reverse look-up” analysis of the IP addresses showing which internet service providers owned the IP addresses and a general location. NCIS performed no further data analysis, the ruling said.
Patty Babb, a spokeswoman for the Navy’s Office of the Judge Advocate General, said the email operation was a “lawful, authorized and legitimate” part of NCIS’ investigation.
Rugh disagreed. In his ruling, he said the attempt to track defense attorney communications violated Gallagher’s rights under the 4th and 6th amendments. The 4th Amendment protects against unlawful searches and the 6th guarantees the right to a speedy trial.
Because the email intrusion delayed Gallagher’s trial by three weeks, Rugh released him from pretrial restraint on May 30.
On June 3, Rugh disqualified Czaplak from the prosecution team and McMahon was removed by the Marine Corps.