Defense in Navy SEAL war crimes case disputes witness immunity implications
By ANDREW DYER | The San Diego Union-Tribune | Published: February 1, 2019
SAN DIEGO, Calif. (Tribune News Service) — News that seven Navy SEALs have been granted immunity deals to serve as witnesses in a San Diego war crimes trial has rocked the defendant’s community of supporters and raised questions about what those deals could mean in the court martial of Edward R. Gallagher next month.
Gallagher, a chief special warfare operator, is expected to go on trial Feb. 19 for war crimes allegedly committed during a 2017 deployment to Mosul, Iraq, including allegations he stabbed a teen-age Iraqi combatant to death and that he allegedly shot at civilians.
Gallagher has pleaded not guilty to all charges.
Navy prosecutors told a judge last week that they have secured immunity for seven SEALs, members of Gallagher's platoon, to be witnesses at the court martial.
While the immunity agreements were sought by Cmdr. Chris Czaplak, lead counsel for the government, they also cover what the witnesses say to the defense as well.
Phillip Stackhouse, one of Gallagher's six defense attorneys, said the seven immunity deals in this case don’t mean that all seven SEALs will testify against his client. The immunity is not side-specific, he said.
“The discussion in court was only about who had immunity and, at my request, the judge made the prosecution disclose on the record who had it,” Stackhouse said in an email. “This was so we could compel the government to make them available to us and to ensure the court informed everyone the immunity covered them for discussions with the defense as well.”
Until the Jan. 25 motions hearing, the defense did not know who — or how many — witnesses had been granted immunity by Rear Adm. Yancy Lindsey, the court martial’s convening authority and the commander of Navy Region Southwest. The convening authority decides whom to prosecute.
The judge, Captain Aaron Rugh, has issued a protective order, which limits what prosecutors and defense attorneys can say about the case.
Gary Barthel, a military attorney who spent 20 years in the Marines — 16 of those as a JAG lawyer — said that military prosecutors often seek immunity for witnesses to get them to testify to bolster their case.
“When you’ve got individuals who’ve witnessed an offense and didn’t report it, they could be deemed co-conspirators,” he said. “Typically, you grant immunity to the lower-level players to go after the main suspect of the case.”
Barthel, who is not connected to the Gallagher case and has no direct knowledge of the evidence, said it is likely that investigators identified a number of people who witnessed some part of the events the government has built its case around.
“My guess would be, based on what I’ve seen, there are a lot of people who know (Gallagher) who witnessed these events,” he said. However, “the defense may be correct that some of them might have some testimony that benefits their client.”
Some of Gallagher’s supporters have their own take on the immunity deals.
A statement posted by a Facebook page set up to support Gallagher said the immunity deals were the only way that witnesses would even talk to prosecutors. That statement was attributed to Gallagher’s wife, Andrea Gallagher, and his brother, Sean Gallagher, along with another defense attorney, Colby Vokey.
“They were granted immunity because they refused to even talk to the prosecutors without having immunity,” the statement said.
The Navy declined to respond to that claim.
“We’re not going to try this case in the media,” said Brian O’Rourke, a Navy spokesman.
Some conservative news media outlets have given Gallagher supportive coverage, including interviews with family members on Fox & Friends, Newsmax TV and “No Interruption with Tomi Lahren,” a show on Fox News’ new subscription-based streaming service, Fox Nation.
On a Jan. 4 episode of Fox & Friends, Sean Gallagher told host Steve Doocy that the entire prosecution is based on accounts of two disgruntled members of his brother’s platoon. He repeated those claims during an appearance on One America News Jan. 17, and on Newsmax TV Jan. 23.
In an email Wednesday, Sean Gallagher said some of the witnesses will testify that his brother is not guilty.
“I know for a fact that some of those given immunity will say Eddie is innocent,” he said. “I can't present you the evidence of how I know this to be true since we don't want the prosecution seeing it before trial, but it nevertheless is very different than the image of (seven) guys testifying against Eddie.”
The Gallagher court case and the possibility that some Navy SEALs may break ranks and testify against a platoon member has reverberated throughout the special warfare community, said Ed Hiner, a retired SEAL lieutenant commander who was deployed nine times over his 20-year career and who maintains connections with the San Diego SEAL community.
“Guys are nervous,” he said. “Most of them are in shock. You could dissect any shooting. The battlefield’s confusing. A lot of guys have done a lot of hard fighting down range.”
The SEAL community is different than any other in the Navy. The highly-trained elite force is small, consisting of about 2,500 sailors in total. SEAL teams are divided into eight platoons — units of about 16 men — who eat, sleep and fight together.
Gallagher was the chief of a platoon.
While war crimes prosecutions against SEALs are rare, Hiner said, when members of a platoon are pitted against each other, such as in the Gallagher case, it takes a toll on the SEAL community.
“It’s very rare that anyone inside of a team would make these allegations,” he said. “It’s a very tight culture. This has rippled through the community. It’s very detrimental to everyone.”