SAN DIEGO — A military prosecutor on Thursday downplayed an effort to track emails of lawyers defending a Navy SEAL charged with murder in the death of a wounded Islamic State militant.
Cmdr. Christopher Czaplak said the investigation into the source of news leaks in the case of Special Warfare Operator Chief Edward “Eddie” Gallagher recorded nothing more than where and when email messages were opened by recipients that included defense lawyers and a journalist.
Defense lawyers accuse prosecutors of engaging in misconduct and want charges against Gallagher dismissed or prosecutors removed from the case.
The defense has characterized the tracking as spying that may have violated attorney-client privilege and hurt Gallagher's ability to get a fair trial.
Gallagher has pleaded not guilty to murder in the death of an injured teenage militant in Iraq in 2017 and for attempted murder for allegedly picking off civilians from a sniper's perch.
His platoon supervisor, Lt. Jacob Portier, is fighting charges of conduct unbecoming an officer for allegedly conducting Gallagher's re-enlistment ceremony next to the militant's corpse.
The Air Force has reportedly seized an attorney's computer and phone as part of an investigation into whether the Navy improperly spied on defense attorneys.
Defense lawyer Jeremiah J. Sullivan III, who represents Portier, said there was no probable cause for the tracking effort, which was discovered in an unusual logo of an American flag with a bald eagle perched on the scales of justice beneath Czaplak’s signature.
Despite the claims by prosecutors, it appeared the monitoring was not properly authorized or approved by a court, Sullivan said.
"Somebody is lying," said Sullivan, who called the tracking unethical for a lawyer to engage in.
Czaplak said the tracking ended May 10 after he was confronted by defense lawyers and acknowledged the effort in a closed-door hearing. He disclosed no other details at the time.
During a hearing Thursday, he said the emails contained code similar to what marketers use to see when an email is opened and what device was used to open it.
The judge in Portier's case, Capt. Jonathan Stephens, said from what he had seen the tracking effort wasn't able to view the contents of any emails.
“If the Military Judge authorized an investigation with such little knowledge, that is, at the very least, quite unnerving,” the motion reads.
Attorneys for Gallagher were expected to argue later in the day that charges should be dismissed or prosecutors kicked off the case.
Defense lawyer Tim Parlatore said in court papers that Czaplak and investigators "have engaged in a rogue, relentless, and unlawful cyber campaign" to intimidate witnesses and break up the defense team.
Parlatore also said Gallagher passed a polygraph when asked if he had committed war crimes and said prosecutors have failed to turn over the results of the test or other evidence that could exonerate his client.
Efforts to get the case thrown out come as President Donald Trump considers pardoning several service members accused of war crimes, including Gallagher, who faces trial June 10.
Melley reported from Los Angeles.