Judge issues injunction, siding with Navy SEALs in vax mandate suit
First Liberty Institute general counsel Michael Berry joins 'The Story' with reaction
EXCLUSIVE: A Navy admiral who said, during a deposition in a case involving Navy SEALs who refuse vaccination on religious grounds, that COVID-19 shots were a national security matter nevertheless acknowledged that he knew of no cases where it had adversely impacted operations.
First Liberty Institute and Hacker Stephens LLP, which represent Navy SEALs seeking religious exemptions to the coronavirus vaccine in the U.S. Court of Appeals for the Fifth Circuit, filed a brief late Monday, first obtained by Fox News Digital.
The filing includes for the first time a deposition, conducted in late June 2022 with William Lescher, vice chief of naval operations. During the deposition, Lescher stated he was "unaware" of any Navy SEAL combat missions that had been negatively affected by COVID-19, despite his earlier claim that the vaccine mandate was necessary for successful Navy operations.
Lescher, who serves as the Navy's second-highest ranking uniformed officer, stated in a sworn declaration before the Supreme Court earlier this year that allowing unvaccinated SEALs will cause "immediate harm to the Navy" and "to the national security of the United States" and could be considered a "dereliction of duty."
CORONADO, CA - AUGUST 13: A group of Navy SEAL trainees in August 2010 during Hell Week at a beach in Coronado, California. (Charles Ommanney/Getty Images)
In addition, according to the new filing by First Liberty, which was filed during the discovery period: "Admiral Lescher submitted a long declaration attesting to facts supporting the Navy’s contentions that it has a compelling interest in mandatory COVID-19 vaccination for religious objectors and that without it, the Navy would be subject to unacceptable risk because of the presence of unvaccinated sailors."
First Liberty states that the Navy "relied heavily on Admiral Lescher’s declaration during the stay proceedings and relies on it in both briefs in this appeal."
However, during Lescher's June deposition, he said he was "unaware of any combat failure" due to COVID-19, and also unaware of specific examples of "COVID-19 making a medical evacuation harder" or of a time it "was contracted through a rebreathing device, or was contracted on a submarine."
Members of the Special Operations Team of the Cypriot National Guard and U.S. Navy SEALs participate in a joint military training in Limassol, Cyprus, September 10, 2021. REUTERS/Yiannis Kourtoglou
In addition, the admiral confirmed the Navy's policy, which requires the "0.6% of service members with a religious objection [be vaccinated] because of the purported increased risk of severe cases," despite accepting the risk of severe COVID cases that occurs in 25% of the Navy due to sailors meeting the medical definition of obesity.
"Admiral Lescher also admitted that Navy policy permits HIV positive individuals to deploy at commander discretion and states that HIV status may not be the sole basis for deployment decisions, despite the risks to others on the deployment," says the court document.
Finally, Lescher stated that COVID outbreaks continue on ships despite 100% vaccination rate and the Navy is now facing recruitment and retention issues and has been forced into "lowering" its standards.
Lt. Col. U.S. Marine Corps Reserve Michael Berry, First Liberty Institute's general counsel, told Fox News Digital that Lescher's deposition is "very concerning" because the Supreme Court relied on his sworn declaration.
"They'll paint this ‘sky falling’ scenario, saying if they're not allowed to separate these [unvaccinated] people, the sky is going to fall. But yet when you look at the evidence, they can't defend their position," he continued.
Members of the Special Operations Team of the Cypriot National Guard and U.S. Navy SEALs participate in a joint military training in Limassol, Cyprus, September 10, 2021. REUTERS/Yiannis Kourtoglou
First Liberty in November filed the lawsuit on behalf of 35 active-duty SEALs and three reservists seeking a religious exemption, as first reported by Fox News Digital. The SEALs represented are all members of various denominations within the Christian faith and are objecting to the vaccine mandate based on "their sincerely held religious beliefs.
In March, the Supreme Court blocked a lower court in Texas' order that would have forced the Navy to stop implementing the vaccine mandate for Navy SEALs. Now, the case is continuing to be litigated in the Fifth Circuit, and the unvaccinated SEALs have not yet been terminated by the military, pending the ongoing court case.
The case centers around whether the military is violating the Religious Freedom Restoration Act by enforcing the mandate.
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The Navy has not granted a single religious exemption to the mandate --there are currently 4,244 pending--but has granted 19 permanent medical exemptions, 189 temporary medical exemptions and 3 permanent medical exemptions, according to the filing.
A Navy spokesperson said DOD does not comment on ongoing litigation and referred Fox News Digital to the Justice Department, which declined to comment.
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