The military court-martial trial of Navy SEAL Edward Gallager took a surprising turn on Friday during the motion hearing phase.

The Navy’s prosecutors have granted seven Navy SEALs immunity to testify for the prosecution at the upcoming trial Gallagher, a chief special warfare operator alleged to have murdered a wounded teenage ISIS combatant by stabbing him in the neck and chest.

Gallagher, a 19-year Navy veteran allegedly on May 3, 2017, stabbed the young ISIS fighter who was believed to be 17-years old after treating him for gunshot wounds the man received after being in a firefight with Iraqi forces that Gallagher’s unit was advising.

Initial reports had the Iraqis taking the injured ISIS fighter on the hood of a Humvee to the SEAL compound and dragged to where Gallagher initially treated him. And the Americans admonished the Iraqis for mistreating a wounded prisoner.

But then, Gallagher, according to witnesses suddenly stabbed the wounded man in the neck and chest according to witnesses. He also is being charged with shooting non-combatants, including a woman during the deployment. He reportedly posed with the ISIS fighter’s corpse in a re-enlistment ceremony, operating a drone over it, as well as using and possessing controlled substances.

The San Diego Tribune reported that prosecutors also claim that they have a knife recovered from Naval Special Warfare Group 1 in Coronado and that it tested positive for DNA. Exactly whose DNA it is or if it was even the murder weapon, is unknown, however, the knife was undergoing further testing.

The Navy also claims that Gallagher, who has been held in pre-trial confinement since his arrest, tried to block this investigation by discouraging other members of the SEAL community from testifying.

Defense lawyers have tried to have the judge repress some of the expected witness testimony, including the number of people that Gallagher reportedly bragged about killing after the deployment. Some witnesses claim that the SEAL claimed to have killed 200 people during the deployment, or “three a day, do the math” when asked how many people he claimed to have killed there.

Those statements argued the defense would be prejudicial to a jury. The judge disagreed and denied the motion. The defense is also asking for the judge to suppress the contents of Gallagher’s three cell phones.

The trial is set for February 19 and the prosecution is expected to call the seven SEALs granted immunity as well as up to 13 other witnesses.

On the subject of the prosecutors granting immunity, we contacted a law firm with experience in trying federal cases involving racketeering or Mafia connections. While they declined to be identified and said that they were unaware of the case, we did get many of our questions answered off-line. While not addressing specifics, we did ask about the granting of immunity. And while the answers were broad, we got some interesting answers.

Often times, prosecutors use the granting of immunity with the perceived threat of additional prosecution to witnesses who may not be willing to talk to the prosecution under their code of loyalty to either the individual or the group itself.

And many times this granting of immunity has come under fire for misuse by certain prosecutors. While doing an investigation, some prosecutors grant immunity to witnesses on what is known as a “fishing expedition” to obtain any incriminating information on an individual that may be totally unrelated to the original case. Sometimes the tactic is called “shaking the tree and seeing what falls.”

Certain kinds of immunity may differ and there are two different types.

Transactional immunity offers complete protection from future prosecution for any matter mentioned in the testimony given by the witness. Because the coverage given to the witness is so broad, transactional immunity is also commonly referred to as “ “blanket” immunity.

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Statutory immunity means that a federal court judge looked at the possible testimony a witness would give in a grand jury proceeding or in a trial and decided that the witness has a legitimate Fifth Amendment right.

That means that the witness had the right not to say anything at all and the presiding judge, orders the witness to talk at that trial. And in exchange for testifying, because the witness still has a Fifth Amendment right, whatever is said, cannot be used against the witness, either directly in terms of having those words used against him or her, or indirectly in terms of the government finding other evidence to use against the witness.

Is the government “shaking the tree” here or do they feel that the evidence supports granting the other SEALs immunity to get them to break what may be a code of silence? We’ll find out in about three weeks.

Leaks in the case, as it happens in everything concerning the government lately, have been an issue. The judge ordered a protective order after an NCIS agent’s name involved in the case was leaked and the agent’s name was used in a Navy Times piece.

Photo: US Navy

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