Navy SEAL’s lawyers accuse prosecutors of spying on them to investigate leaks
LOS ANGELES — Military prosecutors in the case of a Navy SEAL charged with killing an Islamic State prisoner in Iraq in 2017 installed tracking software in e-mails sent to defense lawyers and a reporter in an apparent attempt to discover who was leaking information to the news media, according to lawyers who told The Associated Press that 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, and may constitute prosecutorial misconduct.
‘‘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 Special Operations Chief Edward Gallagher, who has pleaded not guilty to a murder count in the death of an injured teenage militant he allegedly stabbed to death in 2017 in Iraq. Gallagher’s platoon commander, Lieutenant Jacob Portier, is fighting charges of conduct unbecoming an officer for allegedly conducting Gallagher’s re-enlistment ceremony next to the corpse.
The case against Gallagher, a decorated SEAL, has attracted the attention of congressional Republicans who have called for prosecutors to drop the case. And President Trump tweeted in March that Gallagher was being transferred to less restrictive confinement to honor ‘‘his past service to our country.’’
After Trump’s tweet, Gallagher was moved from the brig to a hospital, where he is currently confined.
The Navy has acknowledged it is investigating leaks of documents and said it had limited the number of people who have access to the information. Defense lawyers said the leaks appear to be coming from the government because they’ve learned about some information from the news media before they received the documents from prosecutors — and the information has not helped their clients.
Federal search warrants showed investigators have tracked electronic communications of other Navy SEALs and seized several cellphones from them, the Navy Times newspaper reported earlier this year.
Attorneys for Portier on Monday asked a military judge to force prosecutors to turn over details identifying who authorized the monitoring, what they were seeking and how far the monitoring went.
Embedding e-mails with ‘‘devices designed to monitor defense communications’’ implicates Portier’s right to counsel and right against unreasonable search and seizure,’’ wrote Air Force Lieutenant Colonel Nicholas McCue, one of Portier’s defense lawyers. He said he wanted to make sure the measure did not violate the confidentiality of Portier’s communications with his attorney.
Retired Lieutenant Colonel Gary Solis, who teaches law at Georgetown University and as a Marine Corps lawyer prosecuted some 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.’’
The prosecutor, Commander Christopher Czaplak, declined to comment Monday.
Navy spokesman Brian O’Rourke said an investigation into leaked documents is ongoing and that it was inappropriate to comment on Parlatore’s spying allegations.
Navy prosecutors have said Gallagher during his eighth deployment indiscriminately shot at Iraqi civilians and stabbed to death a captured Islamic State fighter estimated to be 15 years old. He also posed with the teen’s corpse at his re-enlistment ceremony, prosecutors said.
Gallagher’s lawyers have said the allegations were made by disgruntled SEALs out to get Gallagher because he was a demanding leader.
Gallagher faces trial May 28 and Parlatore said prosecutors should focus on that and not on sending communications intended at spying on defense lawyers.
The e-mails were sent on May 8 to 13 lawyers and paralegals on the defense team — and to Carl Prine, a reporter for the Navy Times.