Thursday, May 23, 2019

Why the Air Force is investigating a cyber attack from the Navy

My headline comes from the headline of a Military Times piece.

The Air Force is investigating the Navy for a cyber intrusion into its network,
according to a memo obtained by Military Times.

For background, it's alleged that the military judge issued a gag order on the parties to the Gallagher case. (The Gallagher case has received other attention because of the pardon issue, as Rachel and others have noted here and elsewhere.) The Gallagher prosecutors and NCIS suspected that information, allegedly covered by the gag order, was being leaked to the press. To see if the leaks were from the defense counsel (but apparently not government personnel?) a "tracker" of some kind was sent to defense counsel and a member of the press who follows military justice cases. And then the defense discovered the intrusion. But wait. One of the defense counsel is an Air Force judge advocate. These are issues being presented to the military judge--we will abide his findings and rulings. In the meantime, CAPT Dave Wilson, the senior judge advocate in overall charge of Navy defense counsel has spoken out.
“In fact, I’ve learned that the Air Force is treating this malware as a cyber-intrusion on their network and have seized the Air Force Individual Military Counsel’s computer and phone for review,” he wrote. (Emphasis added.)
The report goes on:
Wilson worried that the hidden tracking software could undermine confidence and trust in the military’s electronic communication systems and their ability to protect attorney-client privilege for military defendants.
“An unintended consequence of the Government’s action and lack of transparency is a lack of confidence and trust in NMCI and other Government-provided networks used by defense counsel to provide Sixth Amendment right to counsel services to the Navy, Marine Corps and Coast Guardsmen,” Wilson wrote.
Navy Capt. Greg Hicks, the service’s top spokesman, last week declined to comment on the email device targeting Navy Times. But Hicks confirmed that NCIS is conducting “an ongoing investigation into the unauthorized disclosure of information covered by a judge’s protective order.”
We should all worry. Because of the extensive coverage in media outlets focused on military affairs, there's a reasonable chance that clients, future clients, and others involved in military justice will read of "Spywaregate." * See, e.g., Prosecutors in Navy war crimes case accused of spying on defense attorneys and Navy Times reporter.

What review is being done of defense counsel files by the Air Force? Have they engaged a 'taint' team to assist and hopefully protected privileged communications of not just Gallagher but other of the lawyer's clients.

Should all defense counsel now worry that what might be viewed as a one-time event becomes a habit?

When we tell clients about confidentiality, should we now have a disclaimer of some kind?

Even if the investigation is righteous, has the Navy gone about it the right way?

It has not been that long since the prosecutors at Camp Pendleton, CA, engaged in what has been viewed as a wholesale search of defense counsel offices looking for evidence against an accused represented by one of the lawyers. You can see more about that here.

* I think this be Rachel's term.

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