SEALs who testified against Gallagher say case exposes cracks in the military justice system
By ANDREW DYER | The San Diego Union-Tribune | Published: July 8, 2019
SAN DIEGO (Tribune News Service) — The morning after he was found not guilty of murdering a wounded enemy prisoner in Iraq, Navy SEAL Chief Petty Officer Eddie Gallagher spoke on “Fox & Friends” about his advice for incoming SEALs: “You are there to watch your brother’s back; he’s there to watch your back — you just stay loyal.”
That brotherhood was put to the test over the past year when members of Gallagher’s platoon said their chief committed war crimes during a 2017 deployment in Iraq. Those reports led to a high-profile trial which ended July 2.
Gallagher was found not guilty of murder, attempted murder and other charges. He was found guilty of one count related to posing with an enemy corpse.
Gallagher, who has proclaimed his innocence since his Sept. 11 arrest, accepted his punishment — a reduction of a rank, loss of two-thirds of base pay for the next two months, and four months in custody, which he has already served.
Many are talking about whether the trial against Gallagher was fair and whether the system of military justice worked.
One member of Gallagher’s platoon who testified for the prosecution said after the trial he thought the case exposed flaws in the justice system.
“There was a crack that’s been exposed, I’d say, but I don’t know if that’s unique to the military,” the SEAL said. “The system isn’t perfect — we’ve got to respect what happened.”
He spoke to the San Diego Union-Tribune on the condition of anonymity because of threats he said he has received for testifying.
One crack became obvious during trial, when, on the second day of witness testimony, a Navy SEAL Petty Officer 1st Class, Corey Scott, testified that after Gallagher stabbed a wounded ISIS fighter in the neck, Scott suffocated the fighter by covering his breathing tube.
His testimony that he killed the fighter, not Gallagher, stunned the courtroom.
Looking at Gallagher, Scott said he did not want to see him sent to prison.
Prosecutors accused Scott of lying. Then later they told the jury to convict Gallagher anyway because, under the law, any action that contributed to the fighter’s death warranted a murder conviction, even if it wasn’t the fatal blow.
Defense lawyers said prosecutors didn’t ask the right questions, didn’t vet their witnesses and didn’t conduct a thorough investigation.
“This should never have gotten to trial the way that it did,” said lead defense attorney Timothy Parlatore.
Scott’s testimony was given under immunity, but the Navy was considering charging Scott with perjury anyway, according to an official not authorized to talk about the case.
It’s unusual to have a prosecution witness damage their case, experts said.
“Typically when somebody gives someone a grant of immunity they know what they’re going to testify to,” said Gary Barthel, a military attorney who spent 20 years in the Marines, 16 as a JAG lawyer.
“Here’s the problem the (Navy) command has in prosecuting this witness: you have a jury who found Gallagher not guilty. You have to presume they found the witness’ testimony credible. If that’s the case, then he didn’t commit perjury.”
There were other faults found in the prosecution.
In May, days before trial was scheduled to begin, defense attorneys discovered that Naval Criminal Investigative Service investigators and the lead prosecutor, Cmdr. Chris Czaplak, tried to track the emails of defense attorneys.
They were trying to find who leaked documents to a member of the news media.
The judge ruled their investigation illegal and removed Czaplak from the prosecution team. He also lowered the potential punishment Gallagher would face if he had been found guilty.
Another SEAL who testified against Gallagher said afterword that didn’t blame Czaplak for attempting to find the leak.
“Czaplak was just being aggressive,” the SEAL said. “We had a reporter call up my friends and say ‘You better talk to me or I’m going to put your names in the paper.’ I don’t blame (Czaplak) at all.”
The seal, who is from Gallagher’s platoon, also asked his name be withheld for safety reasons.
Several witnesses against Gallagher said they’ve been threatened or are facing other fallout.
One SEAL who testified said he has obtained a permit to carry a concealed firearm due to death threats. Another, assigned to the elite SEAL Team 6, said that coming forward will likely mean he won’t be deployed again.
Despite this, Barthel, the JAG lawyer, said he doesn’t think the trial or its outcome will have a “chilling effect” on service members reporting war crimes in the future.
“When people see something they think is wrong, they typically will report it,” he said.
Rep. Duncan Hunter, R-Calif., has been a vocal advocate for Gallagher since his January arraignment, issued a lengthy statement after the verdict saying the case shouldn’t have been prosecuted.
“On very circumstantial and limited physical evidence, the Navy felt it appropriate to charge Chief Gallagher with the murder of an ISIS terrorist,” Hunter said. “The Navy’s actions in this case are shameful, detrimental to good order and adversely affects the morale of our war fighters.”
Barthel said the military justice system functioned appropriately in the Gallagher case.
“Just because someone was found not guilty doesn’t mean the command shouldn’t have brought the case,” he said.
Military commands are obligated to take reports seriously, he said.
“The government had certain facts made known to them and had a duty to investigate,” Barthel said.
“Based on that, it went to a preliminary hearing, where the hearing officer determined there was probable cause. That’s part of the process. People saying this shouldn’t have been prosecuted don’t understand the military justice system and are not giving the people or the process the respect they deserve.”
The process isn’t over.
Gallagher’s platoon commander, Lt. Jacob Portier, is charged with a number of offenses connected to the Gallagher case, including conduct unbecoming and failure to report war crimes allegations. Many of the witnesses who testified during Gallagher’s trial are expected to testify in Portier’s.
Portier’s trial is scheduled for Sept. 3. He pleaded not guilty and denies all the charges.