Navy Spies on Chief’s Legal Defense Team

“Complete Insanity”

Prosecutors in Navy war crimes case accused of spying on defense attorneys and Navy Times reporter

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 defense attorneys told The Associated Press the intrusion may have violated constitutional protections against illegal searches, guarantees of lawyer-client privilege and freedom of the press, and may constitute prosecutorial misconduct.

“I’ve seen some crazy stuff but for a case like this it’s complete insanity,” said attorney Timothy Parlatore. “I was absolutely stunned … especially given the fact that it’s so clear the government has been the one doing the leaking.”

The Navy has previously acknowledged it’s investigating document leaks and said it had limited the number of people who have access to the information. Defense lawyers said the leaks appear to be coming from the government because they’ve learned about some information from news media before they received documents from prosecutors — and the information has not helped their clients.

Attorneys for Portier on Monday asked a military judge to force prosecutors to turn over details identifying who authorized the monitoring, what they were seeking and how far the monitoring went.

Embedding emails with “devices designed to monitor defense communications” implicates Portier’s right to counsel and right against unreasonable search and seizure, wrote Air Force Lt. Col. Nicholas McCue, one of Portier’s defense lawyers. He said he wanted to make sure the measure didn’t violate the confidentiality of Portier’s communications with his attorney.

Ret. Lt. Col. Gary Solis, who teaches law at Georgetown and as a Marine Corps lawyer prosecuted some 400 cases and was a judge on more than 300 others, said he had never heard of hidden cyber tracking software sent to defense lawyers by prosecutors.

“Not only is it ethically questionable, it may be legally questionable,” Solis said. “When it’s apparently so easily discoverable when done in an ineffectively haphazard manner … it’s questionable on an intellectual level.”

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