Navy war crimes trial in turmoil over claims of spying
The court-martial of a highly decorated Navy SEAL platoon leader on war crimes charges has been thrown into turmoil by, of all things, a harmless-looking image of a bald eagle perched on the scales of justice.
The bit of digital artwork, embedded in an email message, contained hidden software that could track if anyone read or forwarded the email and may have also been able to allow access to all communications and files on the recipients’ computers, defense lawyers argue in court filings.
The email was sent last week to defense lawyers representing Special Operations Chief Edward Gallagher by the lead Navy prosecutor in the murder case against the chief, apparently with the judge’s approval. The tracking software was also included in emails sent to lawyers for the chief ’s commanding officer — Lt. Jacob Portier, who is charged in a related case — and to a journalist for the Navy Times covering both cases.
Furious at what they see as an improper attempt to spy on them, the defense lawyers are demanding an investigation and the suspension of proceedings against both men while it is conducted. Chief Gallagher’s trial is currently scheduled to begin May 28.
“This was a cyberwarfare attack, this is not just some software you get at Walmart,” said Jeremiah J. Sullivan III, who represents Portier. “It has violated my client’s constitutional rights, and it created a conflict of interest that calls into question whether prosecutor and the judge can stay on the case.”
The prosecution of Gallagher has been highly contentious. He is accused of gunning down civilians and knifing a captive ISIS fighter to death while leading a platoon of SEALs in Iraq in 2017. Portier is charged with failing to report the killings. Both men have pleaded not guilty and denied wrongdoing.
The Gallagher case in particular has been the subject of a steady stream of leaks in recent months. Even after the Navy judge in the case, Capt. Aaron Rugh, imposed a gag order, important information has sometimes reached reporters before some of the lawyers involved the case have seen it.
According to a court motion filed by the defense, the clandestine tracking software was sent in an attempt to catch the leakers and sanction them for contempt of court. Rugh and the lead prosecutor, Cmdr. Christopher W. Czaplak, worked with the Naval Criminal Investigative Service and the United States Attorney’s Office in San Diego to deploy the software and met three times to discuss the action without defense lawyers present, according to the motion.
The Naval Criminal Investigative Service acknowledged in a statement it used “an audit capability” in the course of its investigation into the leaks, but said, “It is not malware, not a virus, and does not reside on computer systems. There is no risk that systems are corrupted or compromised.”
Defense lawyers grew suspicious when the bald eagle image did not load correctly on some email accounts, and instead appeared as a hyperlink to a nonmilitary server. They confronted prosecutors about it in a conference with the judge.
In communications with defense lawyers, Czaplak characterized the software hidden in his office’s emails with the defense lawyers as an “audit tool.” He said he could neither confirm nor deny that it was part of a contempt investigation, and referred questions about the matter to Fred Sheppard, an assistant U.S. attorney.
A spokeswoman for the U.S. Attorney’s Office is San Diego, where Sheppard works, said the office “is not handling the ongoing court-martial proceedings involving Edward Gallagher and is not involved in the production or dissemination of discovery in that case.”
In response to the defense motions concerning the tracking software, Navy prosecutors said in a court filing this week that information about it was privileged and that they were not required to share anything more about it.