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 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 Lieutenant 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 Chief 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. Lieutenant 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. Judge 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, Commander 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 United States attorney.
A spokeswoman for the United States attorney’s office is San Diego, where Mr. 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.
The executive editor of Navy Times, Andrew Tilghman, said in a statement Thursday that the targeting of a reporter was “a troubling assault on journalists and the work we do.”
“These are not classified documents that we’re talking about, so it’s especially disturbing to find that the military took these extreme measures to secretly surveil the activities of our reporter,” Mr. Tilghman said. “This is potentially unlawful, and should be thoroughly investigated.”
He said that Mr. Prine would not cover any news related to the tracking software hidden in the eagle image.
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Bill Marczak, a cybersecurity expert at Citizen Lab, a research institute at the University of Toronto, said the software was linked to a private server, and could record where, when, and potentially who was reading the email. Mr. Marczak said the server has since been shut down.
According to a military email, the software may have been able to do more than that. In that email, military cybersecurity analysts report to an Air Force lawyer who was detailed to help represent Lieutenant Portier that the tracking software might also have been able to “uncover any actionable insights from all your data (email messages, attachments, etc.) you send and receive.”
Air Force cybersecurity experts have taken the lawyer’s computer and phone for inspection.
Seasoned legal observers say the attempt to detect leaks of nonclassified material — a relatively minor civil offense — may upend the Gallagher court-martial, a major criminal case that has the attention of top officials in Washington.
“I can’t believe they did this, it’s so stupid,” said William Glasser, a retired Army and Navy prosecutor. “Even if they caught the leaker, I think the judge and prosecutor will have to be removed, because now they are part of the investigation against the defense. There is an inherent conflict of interest.”
“Plus it violates the sacred attorney-client relationship,” he added.
The defense lawyers said in court filings that the software appeared to have been deployed without the proper search warrant, and may have violated constitutional protections against unwarranted searches and seizures.
Patrick Korody, a former Navy prosecutor who he has worked with Commander Czaplak, said he doubted that the commander would have acted without proper clearance, but he still questioned the wisdom of the move to use the tracking software.
“This may all be authorized, they may have had the proper warrant, but it is so reckless,” he said, “because it still creates all kinds of conflicts.”
Mr. Korody said that at the very least, questions over the attempted snooping could delay both of the SEAL cases for months.
Sending the software to Mr. Prine, the Navy Times reporter, was also a questionable move, according to Susan McGregor, who teaches digital security and ethics at the Columbia University School of Journalism. “It may well violate accepted legal standards for journalists’ privilege, as well as the journalist’s Fourth Amendment rights,” she said.
The revelations about the tracking software further complicate what was already shaping up as a difficult case for prosecutors. Though several members of Chief Gallagher’s SEAL platoon have said they saw the chief shoot civilians or stab the teenage ISIS fighter when he lay wounded and helpless, no formal investigation was begun for nearly a year, and by that time, much of the physical evidence in the case, including victims’ bodies, could not be recovered.
Prosecutors have also accused Chief Gallagher of trying to intimidate witnesses in the case. He denies those accusations as well.
Supporters of the chief, including his wife and brother, have made his case something of a cause célèbre, portraying him repeatedly in media appearances as a hero wrongly prosecuted for doing his job. They say they have raised more than $500,000 in donations for his defense.
Representative Duncan Hunter, Republican of California, announced at a news conference last week that he had video footage that he said would clear Chief Gallagher, but he did not show the footage to reporters. Mr. Hunter said he planned to ask President Trump to pardon the chief if he is convicted.
Chief Gallagher, who is restricted to a Naval facility in San Diego as he awaits trial, recently dismissed his lead attorney, Philip Stackhouse, a San Diego lawyer experienced in military law, and hired Timothy Parlatore, a New York lawyer who says in his business profile that he is skilled at handling “high-profile cases where adept media relations are a necessity.”
“I think this case should be dismissed for prosecutorial misconduct,” Mr. Parlatore said of the Gallagher court-martial in a phone interview this week. “They were caught spying. We need the prosecutor under oath to find out what he did, and we need to hear from the judge.”