Two Navy SEAL war crimes trials may be 'derailed' over claims prosecutors spied on the defense


The ongoing war crimes cases against two Navy SEALs in San Diego appear to be going off the rails amid concerns that the prosecutor in both cases secretly sent both defense teams malicious software designed to monitor their communications.

"These actions by the prosecution have irreparably derailed the case," Timothy Parlatore, an attorney for Edward Gallagher, the Navy SEAL Chief accused of murdering an unarmed ISIS militant during the Battle of Mosul, told Task & Purpose.

"I have a lot of concerns because no one has been able to figure it out," Parlatore said. "And the government is refusing to give us information about it."

Gallagher's case is expected to begin on May 28, though Parlatore indicated that date may be up in the air at this point. "There's no way this case can proceed," he told Task & Purpose. The case remains on the schedule for that date and is expected to last nine days, according to the most recent Southwest Judicial Circuit Docket published on May 1.

Meanwhile, in emails and court filings this week in the related case of Lt. Jacob Portier — Gallagher's SEAL platoon leader, who is accused of covering up war crimes allegations against the Chief — defense attorneys argued that government prosecutors and the military judge were conspiring against them in their efforts to find the source of media leaks.

The documents, obtained by Task & Purpose, were first reported by the Associated Press.

"Last week the Defense received e-mails from [Navy Cmdr. Christopher] Czaplak that contained malware for the purpose of monitoring the defense," Jeremiah Sullivan, a civilian attorney for Portier, wrote in an email to the judge, Navy Capt. Jonathan Stephens.

The emails, which featured an image of a bald eagle atop the scales of justice, contained software that could track who had read or forwarded the messages, the defense team argued.

"One of the e-mails was sent to the United States Air Force. As such, [military defense lawyer] LtCol McCue has made appropriate notice to his Cyber Warfare branch. I have made full disclosure to LT Portier who now requests to appear before the court and address issues regarding his Constitutional right to counsel."

"My computer, my communications, and all of my client's files have been compromised," Sullivan wrote in the May 12 email. "The discovery must be provided to assist our Cyber Warfare expert clean our computers. Until that time, all of my clients are being prejudiced and I cannot effectively represent Lt Portier."

Another email provided to the court showed that an Air Force cybersecurity expert had told McCue that some tools such as Splunk Enterprise Security could be monitoring his data and email messages. "I would strongly recommend using SIPR or a system that is not on the NIPR network for communications that pertain to this case," the cybersecurity expert wrote, mentioning the secure internet protocol the military uses for classified communications.

When asked by Sullivan whether he had sent malware to the defense, Czaplak told him he could not confirm or deny it either way, Sullivan claimed. But when asked by Task & Purpose on Friday whether NCIS had helped Czaplak send "malware," NCIS spokesman Jeff Houston said the service had used an "audit capability" to ensure 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," Houston said.

Although Houston did not explicitly answer a question of whether NCIS had obtained a search warrant prior to the software's use in this case, he told Task & Purpose that "all NCIS investigations are conducted in accordance with applicable laws, properly coordinated, and executed with appropriate oversight." He added that the media was not their focus but instead, "the focus of the investigation is to dermine who is violating the judicial order by releasing protected information that undermine a fair trial and negatively impact the military justice system."

Brian O'Rourke, a spokesman for the Navy, told Task & Purpose that "the investigation of the unauthorized disclosure of protected information associated with the Gallagher case is lawful and, ultimately, about ensuring Gallagher receives a fair trial."

Portier's defense team filed a motion on May 13 seeking an immediate end to the monitoring of defense communications.

The motion accused prosecutors of working "in coordination with the military judge, Naval Criminal Investigative Service, Navy-Marine Corps Internet (NMCI), and/or the U.S. Attorney's office" to send emails to the defense that contained malware, and criticized their lack of transparency over any additional forms of monitoring or whether there would be more to come.

"This much is clear, by secretly coordinating with the military judge and/or investigators to monitor defense attorney communications, the Government has injected the possibility of conflicts of interests between LT Portier and his defense attorneys," read the motion, which was signed by McCue. "In addition to possibly violating the Fourth Amendment, the Government's actions have also dismantled the sacrosanct confidentiality of the attorney-client relationship."

On May 14, Portier's defense team filed another motion seeking a hearing to learn more about Czaplak's use of the email monitoring software, or, alternatively, McCue requested, "this Honorable Court dismiss all charges with prejudice."

McCue also made clear that he expected an answer quickly. In the motion, he requested appropriate relief within five days, or he would ask for intervention by the appellate court.

While documents obtained by Task & Purpose show that Portier's defense team had filed motions seeking clarity as to the extent of potential government spying, it was not clear whether Gallagher's defense team had also done so. When asked whether he had filed a motion protesting Czaplak's behavior, Parlatore declined to comment, citing the judge's gag order over all filings in the case.

Sullivan did not return a phone call requesting comment from Task & Purpose.

Prosecutors in the case could also face inquiries into the ethics of their behavior, according to Parlatore. As the New York State Bar Association made clear in Dec. 2001, "a lawyer may not make use of computer software applications to surreptitiously 'get behind' visible documents or to trace e-mail." (Czaplak was admitted to the New York State Bar in 2009).

"I'm ethically obligated to report this to New York State for Cdr. Czaplak to be disciplined," Parlatore said.

File photo: Navy SEALs in Mosul (Photo: CNN/screenshot)
US Marine Corps

Former Marine Commandant Gen. Charles Krulak has issued a statement urging President Donald Trump and members of Congress to oppose pardons for those accused or convicted of war crimes since, he argued, it would "relinquish the United States' moral high ground."

"If President Trump follows through on reports that he will mark Memorial Day by pardoning individuals accused or convicted of war crimes, he will betray these ideals and undermine decades of precedent in American military justice that has contributed to making our country's fighting forces the envy of the world," said Krulak, who served in the Marine Corps for more than three decades before retiring in 1999 as the 31st Commandant.

Read More Show Less

Editor's Note: The following story highlights a veteran at Associated Materials. Committed to including talented members of the military community in its workplace, Associated Materials Incorporated is a client of Hirepurpose, a Task & Purpose sister company. Learn more here.

Associated Materials, a residential and commercial siding and window manufacturer based in Ohio, employs people from a variety of backgrounds. The company gives them an opportunity to work hard and grow within the organization. For Tim Betsinger, Elizabeth Dennis, and Tanika Carroll, all military veterans with wide-ranging experience, Associated Materials has provided a work environment similar to the military and a company culture that feels more like family than work.

Read More Show Less

President Donald Trump will nominate Barbara Barrett to serve as the next Air Force secretary, the president announced on Tuesday.

"I am pleased to announce my nomination of Barbara Barrett of Arizona, and former Chairman of the Aerospace Corporation, to be the next Secretary of the Air Force," Trump tweeted. "She will be an outstanding Secretary! #FlyFightWin"

Read More Show Less

The Trump administration is trying to assure Congress that it does not want to start a war with Iran, but some lawmakers who fought in Iraq are not so sure.

Acting Defense Secretary Patrick Shanahan and Chairman of the Joint Chiefs of Staff Marine Gen. Joseph Dunford both briefed Congress on Tuesday about Iran. Shanahan told reporters earlier on Tuesday that the U.S. military buildup in the region has stopped Iran and its proxies from attacking U.S. forces, but the crisis is not yet over.

"We've put on hold the potential for attacks on Americans," Shanahan said. "That doesn't mean that the threats that we've previously identified have gone away. Our prudent response, I think, has given the Iranians time to recalculate. I think our response was a measure of our will and our resolve that we will protect our people and our interests in the region."

Read More Show Less
U.S. Navy/Mass Communication Specialist 1st Class Brian M. Wilbur/Handout via REUTERS

WASHINGTON (Reuters) - President Donald Trump warned on Monday Iran would be met with "great force" if it attacked U.S. interests in the Middle East, and government sources said Washington strongly suspects Shi'ite militias with ties to Tehran were behind a rocket attack in Baghdad's Green Zone.

"I think Iran would be making a very big mistake if they did anything," Trump told reporters as he left the White House on Monday evening for an event in Pennsylvania. "If they do something, it will be met with great force but we have no indication that they will."

Read More Show Less