A reader posed an interesting question in an email. Has this happened before?

Military prosecutors in the case of a Navy SEAL charged with killing an Islamic State prisoner in Iraq in 2017 installed tracking software in emails sent to defense lawyers and a reporter in an apparent attempt to discover who was leaking information to the media, according to lawyers who told The Associated Press that they received the corrupted messages.

The tracking software appears to be “an unusual logo of an American flag with a bald eagle perched on the scales of justice” included in an email from the lead prosecutor, Navy Commander Christopher Czaplak. Images in email are routinely used for tracking purposes, though the image files are typically transparent. Navy technology, it seems, is less subtle.

The accused is Navy Special Operations Chief Edward Gallagher. He was charged with premeditated murder (in connection with combat operations), aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134, though a military judge recently dismissed two of the charges. Gallagher was in pretrial confinement until President Trump intervened.

In January, Gallagher’s brother wrote this piece about the case, asserting in part:

The most infuriating part of this whole charade for our family has been the actions of the Navy, in particular NCIS and Navy prosecutors.

From the beginning, it’s been a coordinated smear campaign so they could make themselves look good by painting him as a monster. He takes prescribed pain medication for a damaged disc in his back, so they threw in a drug charge. He vented to friends about how this whole investigation is a farce; suddenly he’s obstructing justice. Prosecutors actually had the gall to use a text message argument between him and his wife about leaving a movie theatre early to insinuate spousal abuse. These are the steps the prosecution is taking to grasp at anything—literally anything—to smear the name of a good man.

This tactic, of painting Eddie as a villain, is a playbook used by prosecutors time and again to distance themselves from responsibility, muddy the waters, and convince you emotionally that he must be guilty.

34 Responses to “Navy prosecutors accused of spying on defense counsel in a high-profile case”

  1. Anonymous says:

    Because the Navy JAG Corps has the best reputation when prosecuting Navy SEALs e.g U.S v. Barry.

  2. Maga says:

    I saw his lawyer on fox news bringing light to the situation. I wish that type of publicity happened more often to at least show transparency within this broken system. Politicans that use the UCMJ as a tool to sway votes or dictate corruption are a direct treat to our national security and all we stand for. The sad, but truth about this situation is if they are willing to do this they would be willing to with hold evidence or misrepresent evidence that only they may be privileged to. Read between those lines. Congrats to a great man!

  3. Abe Froman says:

    Without getting into the merits of the case, I am curious as to the merits of this tracking tactic, if true.  Is it a search? Did it require a search authorization first? Is there a reasonable expectation of privacy in a government email? (although I recognize that it appears that these were sent to civilian email accounts). I imagine that these questions and issues were all vetted by senior folks before doing something like this in such a high profile case.
    Again, all this is assuming that the Navy Times article is accurate… 

  4. Nathan Freeburg says:

    Remote loading email images are an extremely common and legal method of tracking that an e-mail has been opened. Of course plenty of e-mail (including Mail on an Apple device or even outlook if you have the right settings), disable remote loading of images. (The tracking is when your email sends a query to a third party server to load the image link (thus indicating that the email was opened at that time.)
    From the article I can’t tell if it was merely this or something more pernicious. 

  5. Babu says:

    Assuming the allegations are correct (big assumption), if the tracking software was just to get email header information, i.e. where an email is being forwarded by the defense counsel, it could be considered pen register data.  Pen registers are not Constitutional “searches” as they do not receive the content of the email messages, but they nevertheless still require coordination with DOJ and approval from a Court.     

  6. Abe Froman says:

    Freeburg,If what you say is right, and that is all the Navy team was doing, then it doesn’t seem like that big of a story. And this is where my technical incompetence is showing, if that’s all it is, what does that give the prosecutors?  That their email was opened? Does it show which IP opened it? 
    I also love that the military’s technology is outdated and “less subtle!”  I had no idea something like this was that common.  Aaaaaand I may have spent the last hour going through and disabling HTML in outlook and my other email accounts. 

  7. Sir Visdis Crediting says:

    The logo sounds derivative of the Texas Law Hawk.

  8. Concerned Defender says:

    Back when I was active duty defense counsel, and even now, I was and remain very leery of all of those “Government computer, consent to monitoring” waivers that are non-negotiated requirements to access government email.  Active duty counsel can theoretically have their computers actively monitored and of course service members who speak with counsel via government computer email systems are likewise subject to monitoring.  This is a real cause for concern as it violates attorney-client privilege.  I thought defense counsel and clients should be allowed a special “non monitoring” option … 

  9. Bill Cassara says:

    But that would destroy the presumption of guilt.

  10. JBF says:

    For what it is worth, the standard warning on military email systems expressly states the monitoring provisions do not apply to privileged communications:

    “Notwithstanding the above, using this IS does not constitute consent to PM, LE or CI investigative searching or monitoring of the content of privileged communications, or work product, related to personal representation or services by attorneys, psychotherapists, or clergy, and their assistants. Such communications and work product are private and confidential.”

  11. Nathan Freeburg says:

    DOD does monitor emails with keyword filtering. There is a privilege team that is supposed to remove privileged material when they see it. Yes, this means that many military defense counsel are in violation of their state bar rules. 
    I require all of my military clients use a non-government e-mail address to communicate with me. 

  12. Dew_Process says:

    You can slightly improve your “privacy” by putting “PRIVILEGED & CONFIDENTIAL COMMUNICATION” in the subject line. Once charges are preferred, you should immediately seek a Protective Order to prohibit the government from even looking at the unopened email because we all know that even with the “Notwithstanding” refrain noted above, they’re going to “look, read, and take notes” of whatever they want to . . . .
    Also note, that even if you’re using a non-governmental email, e.g., gmail, etc., if it goes through a government server (and if your deployed or at a remote site) it also going to be monitored.

  13. Zachary D Spilman says:

    Yes, this means that many military defense counsel are in violation of their state bar rules.

    No, they are not. Not even close.

    There is a significant difference between absolute secrecy and privilege. Attorney-client communications are privileged but not absolutely secret. Government officials can – and often do – intercept communications in all forms. There are even comprehensive statutory frameworks for law enforcement intercept of live wire, oral, and electronic communications and for stored communications (like emails) using regular criminal process (never mind counterintelligence processes, like FISA). Unsurprisingly, sometimes those communications include matters covered by the attorney-client privilege. Interception doesn’t eliminate the privilege.

    DoD monitoring of communications systems is quite similar in scope and methodology to what large corporations do on their networks. Furthermore, the monitoring specifically respects various privileges, including the attorney-client privilege. A typical DoD monitoring notice includes language similar to the following:

    using this [information system] does not constitute consent to PM, LE or CI investigative searching or monitoring of the content of privileged communications, or work product, related to personal representation or services by attorneys, psychotherapists, or clergy, and their assistants. Such communications and work product are private and confidential.

    That doesn’t mean that the communications are absolutely secret, but functionally no communications are. Email, in particular, is inherently insecure. Yet the privilege survives.

  14. Dew_Process says:

    There is no uniform way the various State Bars handle this, so you may want to check with your Bar’s Ethics Committee. Some states have prohibitions on using electronic communications if you know that it is subject to 3rd Party monitoring.
    NY for example in Rule 1.6(c), Rules of Professional Conduct, requires that lawyers

    . . .  make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or unauthorized access to, information protected by Rules 1.6, 1.9(c), or 1.18(b).

    NY recognizes 3 types of “Confidential Information:”

    “Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.

    By case law, our Courts have held that “embarrassing or detrimental” information may come from 3rd parties [e.g., witnesses, PI’s, etc.]. So if your investigator comes back with some nasty stuff about your client, unless you’ve got a secure, encrypted email connection with them, best not to use email
    For Defense attorneys, the “bible” is John Wesley Hall, Jr.’s,  Professional Responsibility in Criminal Defense Practice, which is in the 3rd or 4th edition. 

  15. Abe Froman says:

    What Spilman says above comports with how I understand the DOD handles it as well.  Pre-preferral investigations where the suspect is communicating with a lawyer via email happens frequently.  From my understanding, there are taint teams that are supposed to be in place that segregate such information.
    But, as Babu says above, I don’t know that this answers the question in this particular case. This appears to be more than just a keyword search of email.   If this was just a “pen register” but still required court approval, which court approves that? A CM?  Federal court? 

  16. RealOG says:

    If true, Gallagher should prefer charges against the TC.

  17. Zachary D Spilman says:

    Some states have prohibitions on using electronic communications if you know that it is subject to 3rd Party monitoring.

    I’d like to see an example of such a prohibition. The quoted NY rule 1.6(c) certainly isn’t an example, as it requires only “mak[ing] reasonable efforts.”

  18. Nathan Freeburg says:

    The reasonable effort would be not using DOD email servers.  Heck gmail to gmail is encrypted. 

  19. Zachary D Spilman says:

    Heck gmail to gmail is encrypted.

    And yet all gmail – both incoming and outgoing – is analyzed by Google. Google has even used that scanning technology to proactively assist law enforcement, leading to prosecutions.

    Furthermore, considering that the DoD monitoring notice (quoted in my comment above) specifically states that privileged material will remain privileged, but that Google’s terms of service contain no similarly-explicit limitation (and, in fact, I see no such limitation at all), there’s a good case to be made that the DoD email systems are more private than gmail in this context.

  20. Vulture says:

    An inset story to the article says that the MJ was unhappy about media leaks.
    So doing a risk analysis to this COA a Government attorney had to consider the hazards:
    1.  Anyone watching would say “Oh, that’s not so bad.”
    2.  If the tracker got found out, the Defense could be cowed into saying nothing because it exposes “sources and methods.”
    3.  They would garner favor with the Military Judge being seen as “proactive.”
    Zach, you are right.  And it’s getting worse.  Net Neutrality, blah, blah, blah.  I just attended a big data conference and the scans that providers do is just the opposite of what Obama said, “Nobody is reading your e-mails.”  Sorry, I am kind of on the dark side of this issue.
    Just to give you a sense of how poorly this subject matter is in the lexicon: Remember US v. Stellato?  Remember the line about a thumb drive being destroyed because it was connected to a 1st Armor “Domain?”  CID and the Prosecutor share/d an old WWII building on Ft. Bliss.  Prosecutor second floor, CID first.  Those building had a single comms closet, just about in the center, on the side facing the mountains.  VPN’s used to be, at least, prohibited on green line.  So you have deceptive practices being written right into the case law. 
    So stay vigilant. 

  21. slyjackalope says:

    In light of one of the ethics opinions linked to above, it appears that CDR Czaplak may be in heap big doo doo if he knowingly included the tracking software in the e-mail.

  22. Isaac Kennen says:

    The take away from all of the ethics opinions that tom shared: If you’ve got to hide it, then you know damn well you shouldn’t be doing it. Don’t be a jackass. Only a crook would engage in such deceit.Folks who would do such a thing should no longer receive a check from the taxpayer. They’re certainly not serving the public. And, they definitely shouldn’t be wearing a uniform.”We will not lie, steal, or cheat, nor tolerate among us anyone who does.”

  23. Charlie Gittins says:

    In light of one of the ethics opinions linked to above, it appears that CDR Czaplak may be in heap big doo doo if he knowingly included the tracking software in the e-mail.
    That assumes — largely incorrectly –that the Navy Rules Counsel is a process that is meaningful, competent or reliable IMO.  The Rules Counsel process in the Navy and Marine Corps is corrupt and make a mockery of due process that is reflected in nearly every Bar Counsel rules across the states.  Anyone looking for a responsible ethics investigation won’t look to the DON Rules Counsel.  

  24. Bill Cassara says:

    Charlie: The bad news is the Army (and likely the AF) is just as bad.  I have represented a couple of JAGS in ethics inquiries. Due Process is non existent.

  25. Ed says:

    Bill Cassara
    Could you give some examples

  26. J.M. says:

    39A hearing US vs Giles at Ft Irwin, 2014. TC tried to blame a Brady violation on his paralegal. IIRC, the judge used the words “I don’t believe you”.

  27. Abe Froman says:

    The Navy Defense Service Chief of Staff just wrote a pointed letter to the Chief Prosecutor of the Navy demanding they answer some simple questions about this TC tactic.  Go JAGC!

  28. Anonymous says:
  29. charlie gittins says:

    While I hope that the President issues a pardon to Chief Gallagher this weekend, as is reportedly may be in the offing, but if the case ends as a result of the pardon, the Government will likely skate through without a public examination of its conduct.  That will be a disappointment for military justice rule of law and due process.  A thorough examination as possible should be conducted publicly on the record so that it is clear what the prosecutor did and whether the prosecutor was candid with the military judge. 

  30. Anonymous says:

    this case has been blasted throughout the stratosphere of social media, I’m sure someone on the trail counsel’s state bar has noticed. Not that anything will be done. Regardless if the allegation is true or not, this has caused so much negative optics of Big Navy his career is most likely done.

  31. TC says:

    You hope POTUS pardons him why?  Because we don’t need to bother with the judicial process for someone accused of killing, among others, an unarmed child?  He should just be released without the facts coming out? 

  32. Charlie Gittins says:

    I hope he is pardoned because it is pretty clear that the GOV has engaged in some pretty shady conduct.  If the TC is involved in potentially illegal conduct outside of the actual trial, what potential is there for an ethical and fair trial?  Disclosure of Brady, as was denied in Lorance and Behenna?   There have been many convictions of US warriors convicted of crappy evidence and shady USG conduct.  Miller is one I personally worked on, so I am pretty familiar with the GOV purchasing testimony with a meal card, BOQ room, travel to the US and promise of green card after trial.  If DC engaged in that conduct to obtain the testimony of a witness, it would be obstruction of justice.  So, I am happy to see our trigger pullers get a beni from the POTUS.  Way too many Americans have come home in boxes for defending goat-effers in the toilets of the world.  And having been both to Iraq and Afghanistan, I recognize a toilet when I see one.