Judge: Grant immunity to witnesses for accused Navy SEALs

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 McCabe, 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."

Kate Wiltrout, (757) 446-2629, kate.wiltrout@pilotonline.com