SAN DIEGO — A military judge overseeing the case of a Navy SEAL charged with killing a wounded Islamic State militant said Thursday he never approved an effort by prosecutors to track emails to defense lawyers and a journalist.
Capt. Aaron Rugh (ROO) indicated he was kept in the dark by prosecutors about email monitoring used to try to find the source of news leaks in the politically charged case of Special Operations Chief Edward Gallagher.
Defense lawyers say the move amounted to prosecutorial misconduct and they want charges against Gallagher dismissed or prosecutors removed from the case.
Attorney Tim Parlatore pressed Rugh to find out what the judge knew about the tracking that he said may have violated attorney-client privilege and hurt Gallagher’s ability to get a fair trial.
Rugh said prosecutors had told him privately they planned to embed code in what he believed to be a court document to help them find the source of leaks. But he said he didn’t have the power to authorize such an investigative tool, and wasn’t told they planned to plant the code in emails to defense lawyers or a journalist.
Rugh said he thought prosecutors were coordinating the investigation with the U.S. attorney’s office in San Diego. Rugh said he wasn’t aware that a federal prosecutor told the military prosecutor to make sure they had the judge’s approval before launching the tracking effort.
Parlatore withdrew his motion to have the judge removed from the case after learning he had not authorized the scheme.
The lead prosecutor downplayed the move at a related hearing earlier in the day. Cmdr. Christopher Czaplak (CHAP-lak) said the code recorded nothing more than where and when email messages were opened by recipients that included a journalist for the Navy Times.
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.
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.
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.
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.
On Thursday Czaplak 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.
“It’s still a web bug and it’s still unethical,” Sullivan said.
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.
Several experts testified that the code embedded in a signature line in the emails collected information on internet protocol addresses and could tell what web browser was being used, the duration it was open and could see if the message had been forwarded. But the information couldn’t generally be used to identify a specific person or capture content.
Josiah Roloff, a data forensics examiner from Spokane, Washington, said the code is typically used by marketing companies and he’s seen it used in undercover investigations. But he said he’s never seen it used to target defense lawyers.
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.
Gallagher wore his dress whites in the courtroom and was accompanied by his wife, who has been fighting in the media for his freedom.
Andrea Gallagher said outside the courtroom that she doesn’t trust the military justice system to give her husband a fair trial because of the leaks and the email tracking.
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Melley reported from Los Angeles.
