SEAL 3 Update

SEAL CHARGED IN ASSAULT CASE WINS FAVORABLE IMMUNITY RULING
3-13-10
By Kate Wiltrout
The Virginian-Pilot

NORFOLK - The case against a Navy SEAL accused of not protecting an alleged Iraqi terrorist took a major turn Friday when a military judge ordered that five key defense witnesses be granted immunity to testify on his behalf. If not, he warned, the case will be halted.


Petty Officer 1st Class Julio Huertas is one of three SEALs accused in the controversial case, which has led to protests and calls from members of Congress for the charges to be dropped. Huertas faces court-martial on charges of dereliction of duty, impeding an investigation and making a false official statement. A member of SEAL Team 10 at Joint Expeditionary Base Little Creek, he was one of the commandos who captured Ahmed Hashim Abed in Fallujah in early September. A sailor guarding the detainee in the hours after his capture claimed to see one SEAL punch Abed while Huertas and a third SEAL watched.

Four other SEALs, including the detachment commander, and a Navy corpsman who were present on the day of the alleged incident dispute the guard’s claims. But weeks into the investigation, they were told they, too, could face prosecution. As a result, the five hired a lawyer and requested immunity before testifying in the three cases that have gone forward. In February, without giving a reason, Army Maj. Gen. C.T. Cleveland, the head of Special Operations Command Central, denied those requests.

The military judge hearing the case against Huertas, Cmdr. Tierney Carlos, said Friday he didn’t understand that decision.

According to court documents, Carlos said, the five witnesses’ testimony would shed doubt on the guard’s allegations. Not granting them immunity, he ruled, is either an attempt to gain tactical advantage over the defense or evidence the government is overreaching. Just as important, Carlos noted, is that the expected testimony would be exculpatory.

Documents the men submitted about what happened between 5 and 8 a.m. the day after Abed’s capture make clear that the guard was occasionally left alone with the detainee, Carlos said.

He also said that the detachment commander noticed blood on the detainee’s shirt, and asked the guard what had happened. According to documents, Carlos said, the guard responded, “I don’t know.” Asked who was in the holding cell with Abed, the guard answered, “A lot of guys were in there.” Did anyone do anything to Abed? “No. I don’t know,” the guard answered.

The five men’s refusal to testify under their Fifth Amendment right doesn’t mean they have anything to hide. Citing Supreme Court rulings, Carlos noted that one of the Fifth Amendment’s basic functions “is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.’ ”

Carlos gave Cleveland until March 24 to provide immunity to the witnesses. If that doesn’t happen, Huertas’ court-martial will be abated – a legal term for postponing it indefinitely.

This is the second time Carlos has made a significant ruling in the defense’s favor. In January, after the government indicated it would not bring Abed to the United States to testify in the court-martial, Carlos moved the trial to Baghdad, saying Huertas deserves to face his accuser.

His court-martial is set for April 22. Carlos also is presiding over the case against Petty Officer 2nd Class Jonathan Keefe, a SEAL accused of dereliction of duty. That trial, also in Iraq, will follow Huertas’ court-martial.

The SEAL accused of punching Abed, Petty Officer 2nd Class Matthew Mc-Cabe, faces trial in Norfolk in May. A different judge is overseeing that case.

Monica Lombardi, Huertas’ civilian defense counsel, said her client was very pleased with the ruling. She said she was glad that Carlos “picked up on the fact that these witnesses … place the government’s ‘star witness’ alone with the detainee.” Perhaps the guard punched Abed, or the detainee, who is accused of masterminding the murder of four Blackwater contractors in 2004, injured himself when he was briefly left alone. “It doesn’t really matter,” Lombardi said. “The point is Petty Officer Huertas was not in on any sort of abuse of the detainee.”

SEAL 3 Update

5 POTENTIAL WITNESSES COULD SUPPORT SEALS ACCUSED OF ABUSE
By Kate Wiltrout The Virginian-Pilot NORFOLK

Five sailors could offer testimony contradicting the government’s main witness in the controversial prosecution of three Navy SEALs accused of mistreating a suspected Iraqi terrorist. But whether they’ll take the stand is in question after the government denied their requests for immunity on Friday.

Attorney Charles Gittins represents the five potential witnesses, including two officers who led the SEAL detachment that captured Ahmed Hashim Abed in Fallujah in September. Abed is the alleged mastermind of the murders of four Blackwater contractors in Fallujah in 2004.

Gittins said his clients’ testimony would be inconsistent with some or all of the statements made by Petty Officer 3rd Class Kevin Demartino, the Navy master-at-arms who claimed to have seen a SEAL hit Abed while he was being held in a U.S. detainee facility after his capture.

“If your intent is to have a fair trial, they are witnesses you’d want to hear from,” Gittins said.

Monica Lombardi, who is defending one of the accused SEALs, said the government’s decision not to grant immunity to key defense witnesses raises questions about the “fundamental fairness” of the process. “They contradict a lot of what the government is alleging as having happened,” Lombardi said. “Where is the government going with this case, and how are they going to ensure the accused’s right to a fair trial?”

The prosecutions of Matthew McCabe, Jonathan Keefe and Julio Huertas, all assigned to SEAL Team 10 in Virginia Beach, have drawn widespread criticism, political heat and demonstrations outside the Norfolk base.

The cases are being handled locally, but the decision to press charges was made by Maj. Gen. C.T. Cleveland, head of Special Operations Command Central. Cleveland did so after the SEALs declined administrative punishment, which could have compromised their careers in special warfare.

McCabe, a petty officer second class, is charged with assault, making a false statement and dereliction of duty. Lombardi’s client, Petty Officer 1st Class Huertas, is charged with impeding an investigation, making a false statement and dereliction of duty, while Petty Officer 2nd Class Keefe faces charges of dereliction of duty and making a false statement.

Lombardi said she will consider asking the military judge overseeing Huertas’ case to “abate” the proceeding, a ruling that could force the government to either grant immunity or drop the charges.

The next hearing in the case is scheduled for March 8 in Norfolk.

Eugene Fidell, a lawyer and president of the National Institute of Military Justice, said abatements are rare. “Although it can be done, it’s a tall order,” Fidell said.

My only question/concern is why defense witnesses, who would contradict prosecution witnesses statements, would need immunity. Are they afraid of retribution for telling the truth? If so, why?