On the eve of twin war crimes court-martial trials targeting a SEAL and his platoon leader, prosecutors moved Tuesday to rip a trio of holdout witnesses away from a Texas attorney who has been jockeying to win them immunity from future charges.
In a motion filed Tuesday in San Diego, chief prosecutor Cmdr. Christopher W. Czaplak asked a military judge to investigate “conflict of interest” problems involving Brian Ferguson, an Air Force Reserve attorney, and the three SEAL petty officers he represents.
Prosecutors believe that the trio of special warfare operators have information that can be used against both Special Warfare Operator Chief Edward “Eddie” Gallagher and his platoon leader, Lt. Jacob X. “Jake” Portier, stemming from Alpha Platoon, SEAL Team 7′s deployment to Iraq in 2017.
Authorities accuse Gallagher of stabbing to death an unarmed Islamic State prisoner of war who was receiving medical attention, wielding a sniper rifle to gun down innocent civilians and terrorizing junior SEALs with threats in an ongoing effort to intimidate potential witnesses and obstruct justice.
Portier has been charged with covering up Gallagher’s misconduct, but both men have denied their guilt and demanded a trial to clear their names.
Ferguson initially represented Portier but withdrew from the lieutenant’s case after Portier was charged and the case was transferred to Jeremiah J. Sullivan III, a well known civilian attorney who specializes in military criminal justice cases.
In November and December, the trio of SEALs sought Ferguson’s assistance and he has continued to represent them pro bono while trying to broker immunity deals in exchange for their testimony.
Ferguson also is the attorney of record for five other SEALs and two explosive ordnance disposal technicians tied to the probe, court filings indicate.
In his filing, Czaplak argues that three SEALs are “essential” witnesses to Gallagher’s alleged misdeeds “including the murder of an ISIS prisoner and shooting an old man.”
Two SEALs — first class and second class petty officers — “are eye-witnesses to the stabbing," Czaplak wrote, and the other special warfare operator saw "Gallagher shooting an elderly noncombatant male.”
Because of the clandestine nature of their work overseas, Navy Times has agreed not to identify any witnesses until they appear in a courtroom.
Reams of Naval Criminal Investigative Service documents and messages obtained by Navy Times indicate that the first class petty officer who allegedly saw the stabbing is a particularly valuable witness to the prosecution.
He reportedly had taken the pulse of the teenager who was being treated for battlefield wounds and could testify if he was alive and stable or dead when Gallagher allegedly knifed him.
The second class petty officer is a more challenging witness for the prosecution because his statements appear to indicate that he now believes Gallagher stabbed a corpse, which would remove the murder charge.
One of the potential witnesses also is problematic for prosecutors because he was convicted at a non-judicial punishment proceeding on Sept. 20 for allegedly lying to investigators to cover up his own misconduct in a separate case, according to legal filings obtained by Navy Times.
Prosecutors believe they can hurdle these legal challenges, but Ferguson has continued to stand in their way, consistently demanding for his clients immunity from prosecution in federal and California courts, plus the International Criminal Court and any potential proceedings in Iraq.
Without those deals, Ferguson has said, they won’t talk further to investigators.
Last year in the early stages of the probe into Gallagher and Portier, the SEAL’s represented by Ferguson gave preliminary statements to federal law enforcement agents but they have refused to cooperate ever since, despite being granted testimonial immunity by both Navy Region Southwest and the U.S. Department of Justice.
That means that anything they say on the stand can’t be used against them, but statements by other defendants potentially could become evidence in their prosecution, attorneys have argued.
That’s why Ferguson has held out, telegraphing that his clients will invoke their Fifth Amendment right to avoid self-incrimination by not testifying at either trial.
Czaplak argues in his motion that Ferguson “has assumed a collective bargaining position with respect to immunity,” at times “leveraging some clients to get every client immunity.”
He called that a “precarious position to be in for an attorney who has a duty to advise the individual on what is in that individual’s best interest."
“The quantity of clients Mr. Ferguson has accumulated in this case, not to mention the speed at which he has has accumulated them, should give the Court pause when debating whether to accept any waiver of the conflicts present,” Czaplak wrote.
Reached in London, Ferguson declined comment. But Portier’s attorney, Sullivan, lit into the prosecution.
“The prosecutors are now unjustly attacking defense lawyers for zealously representing their clients,” Sullivan told Navy Times. “Brian Ferguson and I have been steadfast in our representation of our clients and protecting them from false allegations.”
In San Diego, Czaplak referred questions from Navy Times to Navy Region Southwest, the command that convened the court-martial trials against Gallagher and Portier.
But Navy Region Southwest spokesman Brian O’Rourke said that he could only speak on behalf of the prosecution, not the convening authority, in this case.
“This is an issue that our rules of professional conduct indicate must be brought to the attention of the court by prosecutors,” said O’Rourke. "This protects both the rights of the witnesses and the accused, Lt. Portier.
“Lt. Portier is due the loyalty of any attorney who has advocated for him.”
O’Rourke said that the Navy will provide free legal counsel to Ferguson’s clients before they testify in court.
But Czaplak’s motion hints at deeper issues that must be addressed by the court. If Portier is sentenced to a dismissal from the service, for example, there’s the possibility that he would point to conflicted counsel in his appeal.
O’Rourke declined comment.
In his message, the president nodded to the Fox News Network and U.S. Rep. Ralph Norman, a North Carolina Republican who has led the fight alongside embattled Rep. Duncan Hunter, R- Calif., to free the SEAL.
Ferguson isn’t Czaplak’s only worry.
The prosecution has suffered recent headaches caused by President Donald J. Trump, the California-based SEAL Team 7 and an emerging theory by Gallagher’s defense team that he was rendering aid to the detainee, not killing him.
On March 30, a tweeting Trump ordered the Pentagon to modify Gallagher’s pretrial incarceration. Later that night, Gallagher was released from San Diego’s Naval Consolidated Brig Miramar.
He temporarily has been lodged in barracks at Marine Corps Air Station Miramar, something prosecutors had opposed before the White House intervened.
Four days earlier, Cmdr. E.J. Mason, who’s assigned to SEAL Team 7, filed an affidavit with the judge in Gallagher’s case, who is expected to hear motions on April 11 at Naval Base San Diego.
SEAL Team 7 is deployed through September, Mason cautioned, and the three SEALs who are represented by Ferguson hold key billets in the same platoon, including jumpmaster, sniper, dive supervisor, range safety officer and communications expert.
Losing the three for the month to six weeks slated for Gallagher’s upcoming court-martial trial would be “devastating” but could “be mitigated for a short time,” Mason wrote.
But losing all three out of a 32-man unit "for two to three months for both the SOC Gallagher trial and the LT Portier trial will severely degrade their platoon’s operational capability beyond an acceptable limit,” Mason continued.
"This will put an extraordinary load on the remaining members of the platoon and will put lives at risk.
“Shuffling members from different platoons to backfill the SEALs introduces risk across any impacted platoons and is strongly not recommended. Every platoon trains for 18 months to prepare for deployment, building standard operating procedures, developing specific qualifications, and cementing unit cohesion," he wrote.
Interviews with two senior Iraqi military leaders contradict nearly every aspect of the federal case against Gallagher, 39, who faces up to 18 criminal counts, including premeditated murder for allegedly stabbing to death a badly wounded Islamic State detainee near Mosul on May 3, 2017.
Ferguson’s SEALs aren’t the only witnesses who have balked at helping the prosecution, according to a March 22 filing by attorney Sullivan on behalf of Portier, the former commanding officer of Alpha Platoon, SEAL Team 7.
Although he’s been charged with covering up Gallagher’s alleged war crimes, Portier apparently sought help during the investigation from Cmdr. Kevin Golden, the judge advocate general assigned to California-based Naval Special Warfare Group 1.
And Golden is prepared to testify that when Portier brought the allegations to him “he didn’t believe the rumors reported were sufficient facts to start an investigation," Sullivan wrote.
That would throw into doubt the government’s charge that the lieutenant failed to report war crimes and, instead, will show “that steps were being made to report concerns up the chain of command,” according to Sullivan’s filing.
Prosecutors, however, dispute that characterization of Golden’s potential testimony and believe he won’t help Portier’s case at trial.
But it’s not just Golden.
Another SEAL Team 7 member who became the lead petty officer of Alpha Platoon when a key witness against Gallagher and Portier rotated home on leave also will testify that he “arrived on the scene after the ISIS fighter had died” and “did not see any blood on SOC Gallagher,” Sullivan revealed.
One of Ferguson’s three witnesses also is prepared to offer under oath that he saw Gallagher stab the detainee on the left side of his body, testimony that will provide “exculpatory conflicting evidence of the alleged murder,” Sullivan wrote.
Sullivan also indicated that the Ground Force Commander for Alpha Platoon in Iraq will testify that “nothing concrete” was ever reported about Gallagher’s involvement in the death of the Islamic State prisoner and Portier later “reported the issue up to ST7-A leadership.”
Another EOD lieutenant and a SEAL second class petty officer will point out inconsistencies in testimony from the platoon’s assistant officer in charge, who has leveled cover up allegations against Portier, Sullivan wrote.
And Cmdr. Ron Malloy, the commanding officer of SEAL Team 7 in 2017, will testify that he had no reservations deploying Gallagher to Iraq and should explain “about why SEALs may have different opinion(s) on whether a ‘shot’ was appropriate” in several sniper actions and “why civilian casualties occur in Mosul, Iraq, and are not considered war crimes.”
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Parlatore urged her to grant total immunity from prosecution to two of the key witnesses Ferguson represents because “without the requested immunity, there is a substantial risk that they will be forced to commit perjury to potentially convict an innocent man.”
In his letter, Parlatore directly challenges the prosecution’s theory in the case — that Gallagher stabbed the teenage Islamic State fighter to death after rendering medical aid.
Instead, he wrote, Gallagher "attempted to perform lifesaving measures on the mortally wounded ISIS fighter. However, his internal injuries were so severe that he succumbed to these wounds.”
Gallagher, Parlatore wrote, “denies ever stabbing the ISIS fighter in the neck or causing his death."
Parlatore believes the two SEALs represented by Ferguson otherwise lied in their initial statements to investigators “based on a conspiracy with some other members of the platoon to falsely incriminate” their platoon chief.
Parlatore wrote that one of the SEALs “has already begun backtracking his initial statement, telling investigators that SOC Gallagher didn’t kill the ISIS fighter, but rather stabbed him in the torso, not the neck, and only after he was already dead."
Now if they refuse to testify, they risk being charged with disobeying a lawful order. If they repeat allegedly false testimony under oath in court, they risk perjury charges. And if they testify truthfully, they risk being prosecuted for initially making a false statement to investigators, Parlatore added.
“Of all people, SOC Gallagher has a personal interest in seeing those who caused him to be wrongfully charged and imprisoned be held accountable,” Parlatore wrote. “The fact that SOC Gallagher is asking for them to be granted immunity speaks volumes to the fact that he is prioritizing the possibility of truthful testimony over any desire for retribution.”
Navy Region Southwest officials have not announced Bolivar’s decision on granting immunity to the two SEALs.