Lawyers representing the decorated Navy SEAL accused of killing an injured ISIS prisoner of war in Iraq are now accusing military prosecutors of installing tracking software in emails in an apparent attempt to find out who is leaking information to the media about the case, an explosive report claims.
Edward Gallagher’s legal team caught on to the alleged scheme last week after they noticed an unusual logo of an American flag with a bald eagle perched on the scales of justice beneath the signature of a message sent to them by one of the prosecutors, according to the Associated Press. It was not an official government logo and the lawyers reportedly found suspicious tracking software embedded inside it.
"I've seen some crazy stuff but for a case like this it's complete insanity," attorney Timothy Parlatore told the Associated Press. "I was absolutely stunned... especially given the fact that it's so clear the government has been the one doing the leaking."
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, who has broken several stories about the case based on documents provided by sources.
While documents are subject to a court order not to be shared, none has been classified, Prine told the AP. The defense attorneys say the intrusion may have violated constitutional protections against illegal searches, guarantees to the right to a lawyer and freedom of the press.
Parlatore represents Special Operations Chief Gallagher, who is set to face trial on May 28 after being accused of stabbing a teenage militant to death in 2017 in Iraq. Navy prosecutors also accuse Gallagher of shooting two civilians in Iraq and opening fire on crowds. Gallagher has pleaded not guilty to all the charges.
His lawyers have said he did not murder anyone and that disgruntled SEALs made the accusations because they wanted to get rid of a demanding platoon leader.
Gallagher's platoon commander, Lt. Jacob Portier, is also fighting charges of conduct unbecoming an officer for allegedly conducting Gallagher's re-enlistment ceremony next to the corpse.
Attorneys for Portier filed a motion Monday asking a military judge to force prosecutors to turn over information about what they were seeking and the extent of the e-mail 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 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.
Parlatore said after receiving the message with the suspicious logo from Czaplak, he reached out to him 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, told the AP 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 Associated Press contributed to this report.