Prosecutor Caught Using Counter-Intelligence in War Crimes Case

In war games, counter-intelligence is expected. That's spying, for you civilians.

Spying is not expected in litigation games, yet that's what happened in a war crimes case. According to defense attorneys, a prosecutor sent them an email with tracking software to follow their email trail. The prosecutor's office has acknowledged using the tracking software. The government apparently wanted to know who was leaking information about the case to the press.

Navy Times

The case involves the high-profile court martial of a Navy SEAL accused of war crimes. Special Operations Chief Edward Gallagher is charged with murder in the stabbing death of an Islamic militant. His commanding officer, Lt. Jacob Portier, is charged with conduct unbecoming an officer for allegedly conducting Gallagher's re-enlistment ceremony next to the corpse.

The Navy Times became part of the story after raising serious questions about the prosecution. At one point, Navy prosecutor Christopher Czaplak sent the tracking email to 13 lawyers and paralegals in the case -- and Navy Times editor and reporter Carl Prime. That led to a motion accusing the government of spying.

The military acknowledged that it "used an audit capability" to investigate the unauthorized disclosure of information covered by a protective order. The government said the software was not malware, and that it posed no risk to computer systems. According to reports, the government did not say whether the Navy had a search warrant to use the tracking software. The Associated Press reported that the judge was aware of the government was using the software for its investigation.

What Privilege?

The defense attorneys want the judge to dismiss the case. They said the surreptitious monitoring intrudes on their attorney-client privilege. The Navy Times also has a reporter's privilege, which is intended to protect sources. David Glazier, a professor at Loyola Law School, said the prosecutor's action compromises the integrity of the case.

"The fact that they used the vehicle from the military prosecutor to get into the computers of the defense team makes this case unique and, to my mind, does taint it," Glazier said. "How can the defense now trust any communications they would get from the prosecution again and how do they trust that their computers don't now have some Trojan horse that could now be sharing privileged communications with the government?”

Related Resources:

• Navy Seal's Lawyers Received Emails Embedded with Tracking Software (The Guardian)
• Deactivation Doesn't End Facebook Tracking. Is That Legal? (FindLaw's Technologist)
• Shouldn't Judges Be Tech Competent, Too? (FindLaw's Technologist)