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Case involving Navy SEAL pits 'frogman against frogman'

Edward Gallagher

SAN DIEGO (AP) — The war crimes case against a Navy SEAL not only cost the Navy secretary his job. It dragged an elite military force known for quiet professionalism into a political firestorm and drove a wedge through the special operations community.

Regardless of their position on the allegations against Chief Petty Officer Edward Gallagher, most SEALs agree that the force has suffered from the attention surrounding the case that led President Donald Trump to restore Gallagher's rank.

"It's incredibly divisive and polarizing within our own community," one SEAL said. "In some ways, it's pitting frogman against frogman, and it's really hard to know what to do. We're not well-equipped to deal with so much public exposure and political interference."

The SEAL, who still serves in the military, spoke on condition of anonymity, citing fear that his comments could harm his career.

The case has spurred conversations among the ranks about how to move past the uproar while also addressing the problems that led to it. SEALs still in uniform and those who are retired told the Associated Press that the debate is raging in private online forums.

Some believe that the president should not have used his authority as commander in chief to erase the sentence handed down by military jurors who convicted Gallagher of posing with a dead Islamic State captive. Jurors recommended that he be demoted.

Gallagher was acquitted of murder charges in the fatal stabbing of the captive and attempted murder charges for allegedly shooting at civilians during his deployment to Iraq in 2017.

Other SEALs believe that Trump had no choice but to intervene because of the Navy's botched handling of the case, which included the prosecution tracking the emails of Gallagher's lawyers during the court-martial, which the judge noted violated his due process rights.

They thought Navy commanders went too far by calling a review board last week to determine whether Gallagher should remain a SEAL, just as the Bronze Star recipient was preparing to retire after two decades of service.

Bill Brown, an enlisted SEAL who left the service in 2005, reached out last week to the Navy's top SEAL, Rear Adm. Collin Green, to let him know many SEALs shared that point of view.

"I told him, 'With all due respect, admiral, sometimes you've got to let a guy ride out into the sunset,' " he said.

Brown said Trump was looking out for warfighters. Many SEALs have not felt that trust with Navy leadership, which has called for a crackdown on everything from uniform standards to grooming.

Meanwhile, the Navy has been sending its top warriors on multiple deployments. Gallagher deployed eight times.

Some fear being judged when they return home, Brown said.

"When you're in a combat zone, you don't think about anything except worrying about your mission," he said. "We want to make sure our officers have our back."

Others believe some will now be wary of reporting wrongdoing.

Trump also pardoned two other service members — a former Army special forces soldier set to stand trial next year in the killing of a suspected Afghan bombmaker in 2010 and an Army officer who had been convicted of murder for ordering his soldiers to fire on three unarmed Afghan men in 2012, killing two.

On Sunday, Defense Secretary Mark Esper fired Navy Secretary Richard Spencer after learning that he had privately proposed to the White House that Gallagher be allowed to retire at his current rank and without losing his status as a SEAL. Esper said Spencer had not told him of the proposal to the White House, causing him to lose "trust and confidence."

But even before receiving Trump's order to allow Gallagher to retire with his full rank, Esper said he had decided the review process should be stopped in part because of the damage it would do to the institution.

"As professional as they are," he said of the Navy review board members, who were all SEALs, "no matter what they would decide, they would be criticized from many sides, which would further drag this issue on, dividing the institution. I want the SEALs and the Navy to move beyond this now, fully focused on their warfighting mission."

Jeff Eggers, a retired combat veteran SEAL who served 20 years before retiring in 2013, said that a certain degree of public scrutiny can be good but that the force works best in the shadows and holding its own accountable.

Still, he said, the case has raised important debates among SEALs about how much the force needs to focus on good order and discipline while also encouraging risk taking.

In the end, the answers must come from the SEALs and their leaders with civilian oversight, said Eggers, who served on the National Security Council during the Obama administration. The process the military has built to deal with war crimes should be trusted, he said.

"Let accountability rest at the appropriate level, and that's how we get this right," he said. "That's why we have commanders and senior enlisted advisers. We have to trust them with that."

Attorney: Prosecutor succumbed to pressure
Don Kleine denies feeling pressure from police union to appeal transfer of two cases to juvenile court

Nick Cisar

esai Pinales


A defense attorney said Omaha's police union is playing "political football" with two district judges' recent decisions to transfer shooting and stabbing cases to juvenile court.

Such "political pressure" is the reason that Douglas County Attorney Don Kleine has appealed the transfers, Omaha attorney James Martin Davis alleged, and has no place in the justice system.

Two weeks ago, Douglas County District Judge Duane Dougherty transferred to juvenile court the case of Nick Cisar, 17, who is accused in the brutal October 2018 stabbing of his ex-girlfriend at Omaha Burke High School. Last week, Douglas County District Judge Marlon Polk transferred to juvenile court the case of Esai Pinales, 16, who is accused of firing into an unmarked car with two Omaha police gang unit officers and an intern inside. Omaha Police Officers Association President Anthony Conner has said his members are upset about the moves. The police union plans to launch an anti-retention campaign against judges on this issue.

"It sounds like a nasty knee-jerk reaction," Davis said. "If you listen to the police union, every violent crime would be prosecuted in adult court instead of juvenile court.

"Don's a great guy, but he's a politician who runs every four years. There's no question there's pressure."

Conner said Wednesday that Davis is not connected to reality and is minimizing the dangers of policing.

"The life of a police officer that was shot at is not political football," Conner said. "As police officers, we advocate on behalf of victims and victims' families. The families of these victims would like to see the offenders get the help they need but also the justice that should be served to them."

Kleine said he is appealing not out of political pressure but because he thinks the judges made the wrong decisions. Cisar nearly killed his ex-girlfriend, Lacey Paige, Kleine noted.

Pinales also could have killed someone, Kleine said. Authorities have said Pinales and 18-year-old Keven Solorzano shot at the unmarked police car near 13th and Pine Streets in June. Two bullets hit the car, but no one was injured in the shooting.

Kleine said Pinales is a documented gang member and has had 12 felony charges filed against him stemming from several cases — the shooting, an assault at the Douglas County Youth Center, a robbery, a theft and a child pornography charge. Kleine said prosecutors also have several photos from social media that show Pinales shooting guns or posing with them.

"I don't feel any political pressure," Kleine said. "We're appealing because these crimes were so serious, so egregious. It's the right thing to do to ask the (higher) court to balance everything — public safety, what's best for the community, what's in the best interest of the juvenile. It's our feeling that they're better off being supervised, at a minimum, for five years (of adult probation) than one or two years under juvenile court."

Under state law, juvenile court's jurisdiction ceases at age 19. Pinales would have less than three years of court supervision left. Cisar would have less than 18 months.

In adult court, both juveniles would have faced dozens of years in prison — or five years of probation. Kleine's point: Even if the district court judges thought the two juveniles didn't belong in adult prison, they could have opted to put both on probation and, thus, monitored their behavior for five years.

Both cases fell under Nebraska law that says that judges "shall" transfer cases to juvenile court unless the prosecution proves they should be kept in adult court. Among a dozen factors to be considered are: the juveniles' record and/or history of violence, their sophistication and maturity, the best interests of the juvenile and security of the public, whether the juvenile used a gun and the motivation for the offense.

Davis noted that Cisar had a personal and familial history of mental illness. Mental health experts for both the state and defense had recommended that Cisar be treated through juvenile court.

Davis said Cisar's transfer is more clear-cut than the transfer of Tyler Pitzl, a 17-year-old who shot at a Douglas County sheriff's deputy in September 2017. Judge Polk transferred that case — and the Nebraska Supreme Court upheld Polk's decision.

"In juvenile court, you do what's in the best interest of the child and see if you can save this person — see if you can rehabilitate them," Davis said. "Someday, through juvenile court, he'll be a whole person again. He'll never be a whole person in district court because he could have gone to the penitentiary for a long time."

In Pinales' case, Polk did not offer his reasoning for the transfer in a written order. He did say he recommended that Pinales go to Canyon State Academy, a school for at-risk youth in Phoenix.

Pinales would have faced a maximum of 310 years in prison if the case were tried in Douglas County District Court.

Pinales also has pending cases tied to an unrelated robbery and shooting and an assault at the Douglas County Youth Center. Pinales previously admitted in Sarpy County juvenile court to theft by unlawful taking of more than $5,000, tampering with physical evidence and creating a visual depiction of sexually explicit conduct of a child. He was given nearly 3½ years of probation starting in March 2018.

His attorney, Jeffrey Leuschen, declined to comment about the specific case but said generally that juvenile court is meant to teach youths the consequences of their actions and help turn them into productive members of society.

"When it comes to tough-on crime policies relating to juveniles that focus on punishment more than rehabilitation, they tend to do less to make our community safer and needlessly derail young lives," he said.

alia.conley@owh.com, 402-444-1068 twitter.com/aliavalentine

Deal renews debate on tax credits' value
State to lose headquarters of TD Ameritrade despite business tax incentives

LINCOLN — Collecting more than $28 million in Nebraska business tax incentives over the years was not enough for TD Ameritrade to keep its headquarters and all its associated jobs in the state.

The Omaha-based company sought state tax incentives more than once as it grew from a small discount brokerage to a Fortune 1000 corporation. State reports show the earliest incentive agreement was signed in 1988, the most recent in 2017.

But when San Francisco-based Charles Schwab confirmed plans to buy Ameritrade last week, it said the combined headquarters would be in a Dallas-Fort Worth suburb. The announcement said information would be provided later about the fate of Ameritrade's Omaha facilities and workers.

The $26 billion acquisition would create a brokerage industry giant with more than $5 trillion in client assets and $17 billion in annual revenues.

State Sen. Megan Hunt of Omaha, among others, offered a skeptical take on the announcement. She said Ameritrade benefited from tax credits and refunds, leaving other Nebraskans to cover state expenses.

"As a thank you to Nebraska taxpayers, the business is now moving to Texas, with over 2,000 Omahans expected to lose their jobs," she said on Twitter, adding later, "It's not about loyalty to Nebraska. It's about profit."

But Sen. Lou Ann Linehan of Elkhorn, the Revenue Committee chairwoman, argued that Nebraska profited from the millions of dollars in incentives provided to Ameritrade under the Nebraska Advantage Act and its predecessor, commonly known as the LB 775 program.

"They've been a huge benefit to our community," she said. "Do we have any idea how much gross revenue and income they have generated for the state of Nebraska?"

Gov. PeteRicketts also defended the state's tax incentives, saying they played a part in persuading companies like Google, Facebook and Costco to do business in the state. He said they also contributed to Nebraska earning the Governor's Cup from Site Selection magazine in three consecutive years for having the most new economic development projects per capita.

"Unlike other state incentive programs, Nebraska's tax incentives are performance-based," he said. "Tax benefits aren't given in the hopes of future investment. They're only earned by businesses that have already made a significant and verifiable investment in our state."

Controversy over the value of business tax incentives has raged in Nebraska since Legislative Bill 775 was passed in 1987. Fear of losing the corporate headquarters of Omaha giant ConAgra drove debate at that time.

The argument heated up again recently, as first ConAgra and then Cabela's moved their headquarters out of Nebraska. Both major corporations left despite having collected business tax incentives multiple times through the years. In fact, both still have active incentive deals with the state.

ConAgra announced plans to move its headquarters from Omaha to Chicago in 2015, the same year the company signed an agreement to invest at least $15 million and create at least 110 new jobs in the state.

The company took some jobs to Illinois and cut 1,000 more, but still employs about 1,300 people in Nebraska.

Cabela's was bought out by its Missouri-based competitor, Bass Pro Shops, in 2017. That was two years after Cabela's signed an agreement to invest at least $17.7 million and create at least 300 jobs across the state.

The agreement remains on the books, although Bass Pro Shops closed the Cabela's headquarters in Sidney, Nebraska, and cut the number of jobs in Sidney from 2,000 to about 400. The company announced plans earlier this month to move another 120 jobs out of Nebraska.

Ameritrade is poised to join their ranks, although Ricketts, Omaha Mayor Jean Stothert and state business leaders are mounting a push to keep as much of the company's operations in Nebraska as possible.

Ricketts, the son of TD Ameritrade founder Joe Ricketts, is the firm's former chief operating officer. He owns a share totaling less than one-tenth of 1% in the company. The company went public in 1997, and the Ricketts family no longer has a controlling interest.

The acquisition by Schwab is expected to close in the second half of next year, assuming it is approved by federal regulators and stockholders of both companies.

Details about Nebraska jobs and facilities will not emerge until after closing. But a company FAQ document released Monday said workforce cuts are expected.

Job losses in Nebraska could affect Ameritrade's ability to collect tax incentives on its 2017 tax incentive agreement, in which the firm promised to invest at least $12 million and create at least 100 jobs in Lincoln and Omaha.

Under state law, companies qualify for tax incentives by meeting certain agreed-upon investment and job creation levels. The companies get a specified number of years to reach those levels, after which they can start using their tax credits and refunds.

After reaching the agreed-upon level, companies must sustain those jobs and investments for a certain number of years to collect tax incentives. Failing to fulfill their agreements means the companies have to give back some of their tax incentives in a process called recapture.

But Nebraska has no claim on the money that Ameritrade collected for fulfilling its 2007 agreement, in which Ameritrade promised to invest at least $10 million and create at least 200 new jobs in Bellevue and Omaha. The company met those levels before 2011 and maintained them for the seven years required.

Nor can the state take back any incentives provided under a 2002 agreement to invest at least $19.2 million and create at least 110 jobs in Omaha or a 1988 agreement to invest at least $4.4 million and create at least 48 jobs in the Omaha metro.

The amount, if any, that Ameritrade collected for those earlier agreements is not public. Both were done under LB 775, which did not require as much disclosure as the Nebraska Advantage Act.

Sen. Curt Friesen of Henderson said the Ameritrade situation illustrates his frustration with Nebraska's business tax incentive programs. The state provides companies with millions of dollars in incentives to move into or stay in Nebraska, but can't control whether the companies stick around.

"We give these companies a lot ofmoney, but in the end they're going to make decisions that are best for them," he said.

Friesen was among the mostly rural senators who blocked advancement of a proposed update to the Nebraska Advantage Act this year. The senators objected to legislation that would reduce state tax revenues for the benefit of business, while proposals that sought to relieve property taxes on farmers were left to languish as being too costly.

But Sen. Mark Kolterman of Seward, who introduced LB 720, the ImagiNE Act, argued that having a business tax incentive program is critical for Nebraska. His belief is unshaken by the Ameritrade announcement. He said it is too early to know how that deal will impact the state.

Even if the worst happens, he said Nebraska has gained more new jobs through incentives than it lost from companies like ConAgra and Cabela's moving their headquarters.

"I don't think you can point to one or two businesses and say the sky is falling," Kolterman said.

martha.stoddard@owh.com, 402-473-9583 twitter.com/stoddardOWH

An 'increasingly obsolete' part of Regency is set for a hotel and retail face-lift

A tired-looking 12 acres in Omaha’s Regency area is headed for a complete makeover, as new owners want to mostly wipe the slate and build a high-end office campus with a hotel and retail space.

The redevelopment team is calling the project — which calls for construction of three buildings and renovation of a fourth — Regency Landing.

They want it to feel urban; they want it filled with workers, shoppers and diners.

And while their vision depends on attracting business and retail tenants, spokesmen for the new ownership group say the project’s central and familiar location near 108th and Pacific Streets offers a “rare opportunity.” They say potential tenants already have started to call.

“There’s a convenience factor,” with quick and easy access to Interstate 680, said Darren Hicks of developer Access Commercial. “Yet it has this almost neighborhood quality to it at the same time.”

For Hicks and business partner Kirk Hanson, assembling all the pieces necessary to recharge what they describe as “an increasingly obsolete” business area is a feat that was 10 years in the making.

It started by buying the Regency Lodge, a low-rise, 150-room hotel and event space that had operated under various names for more than 40 years. Demolition of that property, which is the bulk of the 12-acre site, already has begun.

Earlier this month, the Access team, acting on behalf of the local investor partnership, finalized the purchase of two Shaker Place buildings. They also are buying the gas station at the entrance of the campus.

“Persistence pays off,” said Hicks.

A price tag for the overall redevelopment venture has not been determined. Developers said final building designs and configurations will be driven by businesses yet to come forward to claim a spot.

But the projected investment for the initial phase is estimated at $20 million.

That launch includes rehabbing about 66,000 square feet in the bigger Shaker Place structure. Lobbies, mechanical systems, elevators and the façade are to be replaced starting next year.

Some tenants, such as the Twisted Cork Bistro, will stay, developers said, and they’re also seeking new dining, retail and fitness businesses, along with professional firms and small office users.

The second phase calls for a hotel of about 160 rooms to begin construction by the end of 2020. Hicks said it would rise at least twice as high as the former Regency Lodge, which closed a year ago. A brand has yet to be decided.

Hanson said that, even with the proliferation of hotels in the metro area, he foresees plenty of demand from travelers doing business with area companies and hospitals.

The acquisition of nearby TD Ameritrade by an out-of-town competitor could hurt overall hotel and office occupancy in the area if downsizing occurs, Hicks said. The Fortune 1000 company, which opened its 12-story, ticker tape-designed headquarters tower in 2013, employs about 2,300 people locally.

But, Hicks said, the shift shouldn’t derail Regency Landing plans.

“I don’t think it is going to deter us from our path that we’ve been on for some time,” Hicks said. “These short-term adjustments, although impactful in the near term, aren’t going to deter us from our long-term plans.”

The later phases of Regency Landing would bring up to 250,000 square feet of high-end office space in the form of two buildings. One of those is envisioned as a glassy high-rise.

In the end, Hanson and Hicks said, the goal is a dense, more vertical and modern campus where office users, for instance, won’t need in-house cafeterias because they’ll want to eat and be entertained at places in the neighboring retail strip.

They say the site bounded in part by Interstate 680 gets exposure to 175,000 cars daily. It has views of Regency Lake and is near the Westroads Mall and coming TopGolf facility.

It has, within a 5-mile radius, about 115,000 households with an average income nearly 70% higher than the metro area.

Those demographics, the developers said, give them reason to believe they’ll find tenants to fulfill their vision.

“It’s just been a forgotten piece for a long time,” Hanson said.