The Guardian (USA)

Navy Seal's lawyers received emails embedded with tracking software

- Associated Press in Washington

Military prosecutor­s in the case of a US 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 said 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 Edward Gallagher, the special operations chief who has pleaded not guilty to a murder count in the death of an injured teenage militant he allegedly stabbed to death in Iraq in 2017. 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.

Gallagher’s case has prompted intense media interest and become a cause célèbre on the right. Donald Trump has demanded the case proceed quickly.

Attorneys for Portier filed a motion on Monday asking a military judge to force prosecutor­s to turn over informatio­n about what they were seeking and the extent of the intrusion.

“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 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 attorneycl­ient relationsh­ip.”

The prosecutor, Christophe­r Czaplak, declined to comment. Navy spokesman Brian O’Rourke did not immediatel­y return a phone message seeking comment.

The emails were sent last Wednesday to 13 lawyers and paralegals 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 noticed 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.

Gary Solis, who teaches law at Georgetown and as a US marine corps lawyer prosecuted 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.”

 ??  ?? Edward Gallagher. Photograph: Andrea Gallagher/AP
Edward Gallagher. Photograph: Andrea Gallagher/AP

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