Prosecutors originally claimed they sent an email loaded with malware that would determine who was leaking information to the Navy Times.
The new memo shows that not only were they using the malware to spy, but it may have been accessing more than just communications.
The malware was hidden in a logo featuring an American flag and a bald eagle atop the scales of justice and was included under lead prosecutor Cmdr. Christopher Czaplak’s signature in emails from the prosecution to several parties associated with the defense.
In addition to military attorneys representing Gallagher and his supervisor, Lt. Jacob Portier, emails containing the malware went to civilian attorneys for Portier and other SEAL witnesses. One was also sent to Navy Times editor Carl Prine, who broke several stories relating to Gallagher’s case citing documents the court had ordered to be kept from media.
But at least one of the emails went to an Air Force attorney, Stars and Stripes reported, and it became apparent that the situation was much more complex:
Capt. David Wilson, chief of staff for the Navy’s Defense Service Offices, wrote a scathing memo this week saying the lack of transparency has led to mistrust by defense lawyers in whether attorney-client communications are secure on the Navy-Marine Corps Intranet. An Air Force lawyer representing Portier had his computer and phone seized for review.
“The Air Force is treating this malware as a cyber-intrusion on their network,” Wilson said.
It was initially believed that the malware, which the prosecution admitted to using, was tracking communications to find potential leaks. But upon further investigation, Wilson said that the malware was revealed to be a “splunk tool” designed to give the sender “full access to his computer and all files on his computer.”
Defense attorney Tim Parlatore argued that spying on the defense was likely to prove futile anyway, saying that most of the leaked information had been far more beneficial to the prosecution.
“The leakers are investigating the non-leakers and, funny, they found nothing, he said.
According to Parlatore, the prosecution also misled a judge and failed to obtain approval and the proper warrants to investigate civilians — and Gallagher’s defense team is now calling for the prosecutors and the judge involved to be removed from the case.
Gallagher is accused of premeditated murder in the case of the stabbing death of a seriously wounded ISIS fighter, and according to reports, fellow SEALs are ready to testify to numerous other infractions. (RELATED: EXCLUSIVE: The Inside Story Of The Decorated Navy SEAL Facing Trial For War Crimes)
Navy prosecutors have said Edward Gallagher indiscriminately shot at Iraqi civilians and stabbed to death a captured Islamic State fighter estimated to be 15 years old. He also posed with the teen’s corpse at his re-enlistment ceremony, prosecutors said.https://t.co/VQMu6vr8Ep
— NBCWashington (@nbcwashington) May 21, 2019
Gallagher’s defense team maintains his innocence, arguing that the accusations are coming from “disgruntled SEALs” who “made the accusations because they wanted to get rid of a demanding platoon leader.”
Gallagher is one of several military service members potentially under consideration for a pardon from President Donald Trump.