The Navy attempted to use tracking software to spy on civilian and military defense attorneys for two Navy SEALs charged in connection with the death of an Islamic State fighter and a journalist covering the cases, one of the SEAL's attorneys said on Monday.
"You can't do this without a warrant," said Timothy Parlatore, who represents Navy SEAL Chief Eddie Gallagher. "There's a big difference between what a marketing firm can do to check the demographics of its customer base and what the government can do to directly target and track the email communications of a private citizen."
In total, 13 people received an email on May 8 from Navy prosecutor Cmdr. Christopher Czaplak that included an image that, if opened, would have allowed the Navy to see with whom they communicated, Parlatore told Task & Purpose on Monday.
"The tiny little image that he put at the bottom of his signature line, it was just the logo of the Region Legal Services Office," Parlatore said. "That gives them the ability to track when and where and what system I was using to open it. If I forward it to you, they get to see your email address and your IP address. They're using it to see who I am sending things to."
Parlatore said the email also went to defense attorneys for Navy Lt. Jacob Portier, who is charged with obstruction of justice and related offenses for allegedly trying destroying evidence against Gallagher and not stopping Gallagher from shooting civilians, as well as Navy Times editor Carl Prine.
"These allegations, if true, are a troubling assault on journalists and the work we do," Andrew Tilghman, executive editor for Military Times, said in a statement.
"These are not classified documents that we're talking about, so it's especially disturbing to hear that the federal government is taking these extreme measures to secretly surveil the activities of our reporters and violate their constitutional rights against unlawful search. This is potentially unlawful and should be thoroughly investigated."
On Monday, Portier's attorneys asked the judge in the case to make prosecutors explain what information they were seeking and how widespread the surveillance was, Associated Press reporter Brian Melley first reported on Monday. Task & Purpose was unable to reach Portier's civilian defense counsel.
Czaplak declined to comment on Monday because there is an ongoing investigation into the leak of protected documents in the Gallagher case, said Brian O'Rourke, a spokesman for Navy Region Southwest.
Parlatore said he plans to file motions to have charges against Gallagher dismissed and to disqualify Czaplak from the case.
"They did a warrantless search of a defense attorney's email less than three weeks before trial is supposed to start," Parlatore said. "Quite frankly, this is such a new situation that we're still researching what all the proper remedies are."