The defense attorney for a Navy SEAL accused of murdering an ISIS prisoner plans to file an ethics complaint against the Navy prosecutor for allegedly sending emails containing tracking software.
Timothy Parlatore, who represents Special Operations Chief Edward Gallagher, told the Washington Examiner he suspects Cmdr. Chris Czaplak embedded tracking software in emails to defense lawyers and a reporter in an effort to root out leaks to the media.
Marketing companies use similar tracking techniques to learn things such as which customers read promotional emails and how they respond. Every device has a unique Internet Protocol address, and Parlatore said the prosecutor used an image embedded in a signature line to track IP addresses so he could monitor the flow of information shared in the discovery process. He said the tracking device follows the next IP should an email be forwarded. If he forwarded an email from the Navy prosecutor embedded with the tracker to a journalist, for example, the software would show that it went from the Navy’s IP to Parlatore’s and then the journalist’s.
“They are able to now track what the defense is doing with their stuff,” Parlatore said.
The alleged tracking emails were sent as the Naval Criminal Investigative Service looks into leaks to the media regarding the high-profile murder case. The judge overseeing the case has placed strict limitations on court documents and information.
NCIS spokesman Jeff Houston told the Military Times Thursday that “during the course of the leak investigation, NCIS used an audit capability that ensures the integrity of protected documents. It is not malware, not a virus, and does not reside on computer systems. There is no risk that systems are corrupted or compromised.”
Czaplak did not respond to the Examiner‘s requests for comment.
The New York Times reported in April that Gallagher has been accused of a litany of war crimes throughout his career, citing a confidential Navy report. Parlatore said it would not make sense for his office to leak such damning information to the press.
“I have a vested interest in not leaking anything harmful to my client,” he said.
Gallagher, 39, has pleaded not guilty to the stabbing murder of an injured teenage ISIS fighter while deployed to Iraq in 2017. He also denies shooting two civilians and opening fire on crowds. His court-martial begins May 28 in San Diego. Gallagher’s platoon commander, Lt. Jacob Portier, was charged with conduct unbecoming of an officer after he allegedly conducted Gallagher’s reenlistment ceremony next to the fighter’s corpse.
The case snowballed into a national news story that caught the eye of President Trump, who ordered the transfer of Gallagher from a Navy brig to a hospital complex. “In honor of his past service to our Country, Navy Seal #EddieGallagher will soon be moved to less restrictive confinement while he awaits his day in court,” Trump tweeted in March.
While Gallagher’s trial will be held in California, Parlatore told the Washington Examiner he plans to file an ethics complaint with the grievance committee for the state supreme court of New York, where he says Czaplak is barred.
The New York State Bar Association issued an ethics opinion in 2001, stating, “Lawyers may not ethically use available technology to surreptitiously examine and trace e-mail and other electronic documents.”
New York University law professor Stephen Gillers said the prosecution’s email tracking as described in an Associated Press article, if true, “risks serious sanctions by a disciplinary committee in New York unless authorized by a judge.” He added there could also be constitutional violations involved, given that the right to counsel is protected by the Sixth Amendment.
“While government investigators are given wide latitude to use undercover informants to detect and solve crimes, invading the defense camp, physically or electronically, as the article describes, is forbidden without a warrant,” Gillers told the Washington Examiner.
The Military Reporters & Editors Association released a statement this week demanding “that U.S. government officials provide answers and accountability.” Navy Times editor Chris Prine, a member of the organization, was the reporter sent the allegedly tracked emails.
“We have much more to learn about this alleged incident, but if it happened as reported, then this is a profoundly disturbing situation,” said John Donnelly, president of the association.
