At least seven SEALs are slated to testify in the May 28 war crimes trial against Chief Special Warfare Operator Edward “Eddie” Gallagher, but attorneys continue to question what will happen to their careers once in the public spotlight.
That’s one of the issues expected to be raised during a Tuesday hearing in a Naval Base San Diego courtroom, according to documents provided to Navy Times.
“I’m going to give a speech about this,” said Timothy Parlatore, Gallagher’s civilian defense attorney. “The issues go beyond this trial, and they’re important.”
It all stems from a larger debate over the immunity deals offered to past and present members of SEAL Team 7 in exchange for their testimony against Gallagher, 39, who’s accused of stabbing to death a wounded Islamic State prisoner of war, shooting two Iraqi civilians and then attempting to cover up the alleged 2017 incidents.
Brian Ferguson, a Texas attorney who represents at least a dozen SEALs and other military members attached to Alpha Platoon, SEAL Team 7 in Iraq in 2017, has three clients particularly tantalizing to either prosecutors or defense attorneys.
But the SEALs have threatened to assert their Fifth Amendment right against self-incrimination if forced to take the stand against either Gallagher or his commanding officer, Lt. Jacob X. “Jake” Portier, who’s accused of helping his chief cover up the alleged war crimes.
One of them, a first class petty officer, is prized by prosecutors because he was helping Gallagher treat the wounded ISIS fighter before he died, and, in an initial interview taped by Naval Criminal Investigative Service, indicated that the platoon chief knifed the detainee in the neck.
But another Ferguson client indicated that he saw Gallagher hack into the boy’s torso and later insisted that the prisoner had died before the cut, which means the chief knifed a corpse.
A third client was a sniper who disputes how one of the alleged eyewitnesses to the shooting of a young girl came to believe Gallagher was the sharpshooter who gunned her down. He’s cast doubt on how others recalled the death of an Iraqi man on Father’s Day in 2017, according to internal NCIS files provided to Navy Times.
To garner their testimony, the Navy and the U.S. Department of Justice extended to the trio testimonial immunity, which protects them from self-incrimination if they tell the truth on the stand.
But Ferguson held out for better deals: transactional immunity, which would cover all other evidence churned up in the probe and any past misdeeds; shielding their coveted SEAL tridents from a special board convened to remove them; protection from extradition to Iraq to stand trial there; and safeguarding their future careers from harm, especially if they want to try out for the elite Naval Special Warfare Development Group — also known as DEVGRU or SEAL Team 6.
The attorney also sought to protect future employment inside the military, federal civilian agencies or contractors tied to what are called “Special Access Programs” and “Unacknowledged Special Access Programs.”
Special Access Programs rely on highly classified information and those who use the data often undergo what the Pentagon calls Special Access Required vetting.
Unacknowledged SAPs are so sensitive to national security that their very existence is classified.
Navy Cmdr. Christopher Czaplak, the lead prosecutor in both the Portier and Gallagher cases, assured Ferguson in an April 10 email that his “clients should not have any concerns about participating in a public trial and then trying out for that unit,” SEAL Team 6.
But Ferguson didn’t seem satisfied that an attorney in a regional legal services office could speak for either the SEALs or agencies such as the CIA, so he reached out to Naval Special Warfare, the parent command of the commandos.
In an April 17 email to Capt. Susan M. McGarvey, Ferguson expressed concerns that the “word on the street” indicated “that if you get involved in this case, your chances of going to (SEAL Team 6) are toast.”
“From a policy perspective, I can’t imagine that would be the case; the secondary and tertiary implications are troubling. However, from a pragmatic national security perspective, I fear participation might, indeed, be disqualifying for some or all billets,” he continued. “Whether the response is ‘we’ve got your back’ or ‘sorry, pal, life’s not fair,’ it’d be nice to have a definitive answer for the folks involved and the broader community.”
Ferguson seemed to be suggesting that SEALs worried about their careers might forgo reporting war crimes in the future if it meant appearing in a public courtroom and being identified in the press as witnesses.
He attached a draft letter for McGarvey’s boss, Rear Adm. Collin P. Green, the commander of Naval Special Warfare, that voiced concerns about Czaplak’s “nebulous reassurances" and urged the SEAL to “provide a more definitive response — whether good or bad.”
In a terse reply, Capt. McGarvey said that service members “with career questions should raise them with their chain of command.”
Instead, they turned to Navy Times, which asked Naval Special Warfare spokeswoman Cmdr. Tamara Lawrence for her command’s final answer on the controversy.
In a prepared statement emailed to Navy Times on Friday, she said that every sailor has the duty to report a suspected violation of the Law of Armed Conflict, per a standing order by the secretary of the Navy.
“There is no policy prohibiting individuals from progression along their career milestones or from successfully screening for special programs simply because they cooperated with a federal investigation or participated in a court-martial proceeding as a witness,” she wrote.
Reached in San Diego, Ferguson declined comment.
But Parlatore said Naval Special Warfare really didn’t answer Ferguson’s questions.
“Brian Ferguson, he’s focusing on the fact that they’re just public figures, that they’re going to have their names associated with this trial. But I’m going a step farther and I’m asking, ‘What if they’re not accurate,’ " said Parlatore.
Parlatore suspects that brief statements by Ferguson’s clients initially given to NCIS in mid-2018 were insufficiently vague, twisted by law enforcement or perhaps lies.
If their allegedly inaccurate statements are aired in an open courtroom, it could ruin their careers, Parlatore said, but the way around that is to give them every chance to tell the truth without repercussions.
That’s why Parlatore has championed total immunity from future prosecution for all of Ferguson’s clients.
To Parlatore, the prosecution and NCIS are forcing Ferguson’s clients to potentially perjure themselves on the stand, according to his legal filings and letters and messages he’s sent to prosecutors that were provided to Navy Times.
The most prized witness for the prosecution — the petty officer who aided Gallagher with the detainee before he died — stands to lose the most without full immunity.
He was convicted at a Sept. 20 non-judicial punishment proceeding for allegedly lying to investigators to cover up his own misconduct in a separate case, according to legal filings obtained by Navy Times.
Prosecutors could bring back the NJP case with court-martial charges if he doesn’t testify the way NCIS expects him to, Parlatore argues.
But that’s just one of multiple issues military judge Capt. Aaron Rugh is expected to take up Tuesday morning in San Diego.
The others include allegations that NCIS agents began an obstruction of justice probe into Ferguson after Rugh dismissed a motion by prosecutors to have the Texas attorney removed as their counsel; that one of the witnesses against Gallagher changed his testimony about the sniper incidents again; and a motion filed by Parlatore for the entire matter to be tossed out of court due to misconduct by prosecutors and federal agents.