SAN DIEGO — The Navy’s tracking of emails to lawyers defending a SEAL accused of murder may have intruded on attorney-client privilege but wasn’t severe enough to throw out the case, a military prosecutor argued in court Friday.
Lt. Scott McDonald said the effort only gathered data, such as internet protocol addresses, and did not snoop on the content of emails.
"Even if there was some intrusion" in violation of attorney client-privilege, it didn't rise to the level to dismiss the case, McDonald said.
Lawyers for Special Warfare Operator Chief Edward “Eddie” Gallagher called the effort spying and said it amounted to prosecutorial misconduct. They have asked a judge to throw out the case or remove the prosecutors.
The judge did not rule on the motions at the close of the two-day hearing. Capt. Aaron Rugh recessed the case until June 10 when Gallagher faces trial on murder and attempted murder charges.
Gallagher has pleaded not guilty to murder in the death of an injured teenage militant in Iraq in 2017 and attempted murder for allegedly picking off civilians from a sniper’s perch.
On Thursday, Rugh unexpectedly released Gallagher from custody as a remedy to what he called interference by prosecutors.
Rugh chided investigators Friday for refusing to testify about who authorized the scheme to track emails sent to the defense team and a journalist with the Navy Times.
Three witnesses from the Naval Criminal Investigative Service declined to take the stand.
The "lack of candor or cooperation in this process I think could be huge as a sign of culpability," Rugh said.
Defense lawyer Tim Parlatore said there had been misconduct from the start of the investigation into Gallagher and it continued throughout the case.
He said that even if a new prosecution team is named, Gallagher can’t get a fair trial.
The defense discovered the tracking code hidden in a suspicious logo of an American flag with a bald eagle perched on the scales of justice beneath the signature of lead prosecutor Cmdr. Christopher Czaplak.
They said the tactic was an illegal search that wasn't properly authorized.
Rugh said he had not approved of the measure.
McDonald argued that the email tracking wasn't an illegal search because there's no expectation of privacy for internet protocol addresses and metadata and no need for a warrant.
"We're talking about raw data," he said.
Melley reported from Los Angeles.