A Navy SEAL who allegedly staged a re-enlistment ceremony over the body of a dead Islamic State prisoner during the Battle of Mosul in Iraq and also hovered a drone over the corpse may have acted in “poor taste” but didn’t commit a war crime, a Navy judge has ruled.
On Friday, two military judges delivered a pair of big wins for two Navy SEALs on trial for alleged war crimes by tossing out key charges against the special operator at the center of the case, Chief Special Warfare Operator Edward “Eddie” Gallagher, and the officer in charge of his platoon, Lt. Jacob X. “Jake” Portier, who stands accused of covering up the incidents.
Gallagher is accused of stabbing to death a wounded Islamic State prisoner of war and attempting to shoot innocent civilians with his sniper rifle near Mosul in 2017.
Also among the allegations is that Gallagher staged the re-enlistment ceremony over the dead ISIS teenager’s body near the Iraqi city of Mosul on May 3, 2017, amid some of the U.S. forces fiercest fighting against ISIS. Prosecutors also say he hovered a drone over the body.
But the military judge, Navy Capt. Aaron Rugh, determined that those are not prohibited acts under Article 134 of the Uniform Code of Military Justice.
That ruling is also likely to be a big win for platoon leader Portier, who also faces a raft of charges alleging that he covered up his chief petty officer’s war crimes.
Military prosecutors charged Portier with lying to his superior officer, Lt. Cmdr. Robert Breisch, about whether he saw “anything criminal” at Gallagher’s reenlistment ceremony. Portier allegedly said: “There was nothing criminal. It was just in poor taste,” according to investigative files obtained by Navy Times.
If the judge overseeing Portier’s separate court martial case agrees with Rugh, however, then Portier told the truth and his charge must be tossed out, too.
“It is honorable for a Navy SEAL to reenlist on the battlefield, the same battlefield where he was willing to sacrifice his own life to protect our nation,” Portier’s civilian defense attorney, Jeremiah J. Sullivan III, told Navy Times.
SEAL “rock stars”
The origin of the sprawling war crimes investigation is murky, but appears to have started with allegations lodged by a special warfare operator first class — an SO1.
Because of the clandestine work performed by SEALs overseas, authorities have asked Navy Times to not publish some of the names involved in the investigation.
The way the SO1 recollected events — and reported them to Naval Criminal Investigative Service agents — the seeds of the scandal began to grow in Iraq in 2017, when he and others from SEAL Team 7’s Platoon Alpha voiced concerns about Gallagher’s conduct, according to an NCIS “investigative action” provided to Navy Times.
The SO1 and others talked “about what they should do to stop [Gallagher] from killing innocent civilians while they were deployed to Iraq” according to the NCIS file.
The SO1 said that platoon snipers “began shooting warning shots at any civilians they saw on the battlefield so that the civilians would run away and [Gallagher] could not kill them.”
The SO1 said that he had reported war crime allegations committed by Gallagher to both Portier, the platoon commander, and another lieutenant, the platoon’s Assistant Officer in Charge, or AOIC, who also has emerged as one of the key witnesses against both the lieutenant and his chief.
Portier and his AOIC assured the SO1 “that something was being done about the situation,” according to an NCIS report.
But they never seemed to do anything, so in the autumn of 2017 the SO1 confided with a master chief petty officer at SEAL Team 7 about the allegations, the report indicates.
Authorities also asked Navy Times not to publish the master chief’s name, but he was a troop chief, the next enlisted leader above Gallagher in his chain of command.
The allegations of war crimes against Gallagher came as a shock to the troop chief, who later told NCIS agents he considered Gallagher and his Platoon Alpha SEALs to be “rock stars.”
A platoon’s “hate and discontent”
The troop chief told investigators he’d mentored Gallagher over the phone in Iraq but had never taken disciplinary actions against him, even after the platoon chief had been accused of stealing nutrition bars from another SEAL’s gift bag.
The troop chief recalled serving as sniper Gallagher’s spotter during a brief visit to Alpha when they were operating near the Tigris River in an area known as “Old Mosul.” During his interview, an NCIS agent told him that Gallagher was alleged to have made it his priority “to shoot as many people as possible with his sniper rifle.”
The troop chief said “he could see [Gallagher] doing that.”
But it was only after the deployment ended that the troop chief began to realize Gallagher’s platoon was riven by “hate and discontent," he told investigators.
The troop chief said he urged Gallagher to talk to his platoon to make things right and thought the unspecified issues “had been solved but he started getting calls from platoon members about (Gallagher).”
It was then that the SO1 alluded to possible war crimes committed by Gallagher, the troop chief told investigators.
The troop chief said that he repeated the allegations to both Group 1 Command Master Chief Steve Ward and Lt. Cmdr. Breisch, an officer in Gallagher’s chain of command and the troop chief’s boss.
After consulting with the group’s judge advocate general, the SEAL leaders decided that those who said they witnessed the war crimes should come forward and make official statements.
The troop chief told investigators that it was during a March 18, 2018, briefing about that decision with six current or former members of Platoon Alpha that he first learned the specific allegation that Gallagher stabbed to death a detainee.
The troop chief warned them that the “frag radius” of that and other allegations “would be significant” and likely hit other SEALs and their officers with disciplinary action, according to the NCIS report.
The next day, the SO1 who lodged the initial allegations told NCIS agents that he’d previously gone to Portier and said a formal probe needed to be launched. He also “threatened to tell more people if an investigation did not occur,” according to the NCIS report.
As the investigation got underway, the SO1 had a meeting with Portier on April 6, 2018, and said he told Portier to send NCIS an email outlining some of the explosive allegations. The SO1 said he leaned over Portier’s shoulder as he typed out the email.
Soon afterward, an NCIS agent contacted the SO1 for an interview.
A platoon percolating with “rumors”
But others in the NCIS investigative report don’t remember it exactly like that.
For example, Lt. Cmdr. Breisch told investigators that he began hearing “rumors” in the summer of 2017 that members of Gallagher’s platoon were unhappy with his actions in Iraq, especially the “tactical decisions he made” there.
Breisch said he talked directly to the SO1 in October of 2017 during the Mosul deployment and the SO1 never mentioned war crime violations, according to his interview records.
Instead, Breisch said that the SO1 complained that Gallagher was going to be awarded a Silver Star for combat valor, calling it “unconscionable because (Gallagher) had lied about the incidents described.”
He also repeated accusations that Gallagher rifled through other SEALs' care packages.
Breisch told him “to decompress and let it go," according to the NCIS report.
When Breisch later began hearing about possible crimes committed by Gallagher in Iraq, he called the SO1 back “and asked him if there was anything criminal in nature to report.”
“No,” the SO1 told the officer, according to the NCIS report.
Breisch told investigators that he encouraged the SO1 to report anything criminal but “if there were no actual criminal allegations, he needed to let it go.”
A lying SEAL?
A similar pattern played out with Portier’s fellow lieutenant in the platoon, the AOIC who is now in graduate school.
During Platoon Alpha’s deployment to Mosul, the AOIC often shared a bedroom with Portier and Gallagher as part of a platoon leadership triad and he told an NCIS agent during a May 31, 2018, interview that he came to know both men well.
The agent asked the AOIC if he could guess why he was being questioned.
He told the investigator that it likely involved Gallagher stealing from care packages, some of his tactical decisions in Iraq and “lying to individuals,” including him, “about various topics.”
The AOIC said that he grew to dislike Gallagher during the Mosul deployment, mostly because he "was acting like a younger enlisted platoon shooter without the responsibility of being the platoon chief,” according to the NCIS report.
The AOIC said that he urged Portier to relieve Gallagher and that the platoon commander initially appeared to agree with him, but Portier never fired his chief and discontent within the platoon continued to fester.
The AOIC was deep into his interview with the NCIS agent before he suddenly disclosed the allegation that Gallagher stabbed a wounded ISIS fighter to death while he was being treated for his wounds.
The AOIC told the agent that he didn’t witness the alleged murder, but the SO1 did “and he reported it directly to Portier either the same day or within a few days of the event.”
In fact, the AOIC told the NCIS agent, “he first found out about the allegation from Portier.”
That statement doesn’t seem to jibe with the SO1′s recollection, which is a key reason why Portier’s attorney, Sullivan, wants to question both of them under oath in a public hearing.
“They wanted an officer’s scalp”
And it looks like he’s going to get that chance.
On Thursday, the Navy judge in Portier’s case quashed a blanket “protective order” issued by SEAL Group 1 that restricted the attorney’s access to key information about the case.
The decision by judge Capt. Jonathan Stephens, greenlights Sullivan to start interviewing witnesses and could force prosecutors to bring the case back to a preliminary hearing, repeating the Article 32 proceedings that brought the matter to Stephens' court in the first place.
The decision also sets up a legal showdown at Naval Base San Diego on Feb. 15.
Sullivan wants to call a slate of high-ranking witnesses from the SEAL community, including the commodore of Naval Special Warfare Group 1, Capt. Matthew D. Rosenbloom, as well as Rosenbloom’s staff judge advocate, Lt. Keleigh Anderson, and NCIS special agent Joseph Warpinski, who spearheaded the law enforcement probe into the alleged war crimes.
Also on his list are the SO1 who sparked the allegations against Portier and Gallagher and the AOIC who backed them up.
Sullivan suspects that Rosenbloom colluded with other unidentified senior Navy leaders to create a draconian “protective order” that attorneys had to sign or they were barred from reading the evidence collected against Portier.
While Gallagher’s lawyers agreed to Rosenbloom’s blanket gag order, Sullivan never did.
That meant that the only evidence Sullivan could review with his client was Portier’s own brief statement to investigators.
Sullivan believes that if he had the chance to sift through all the evidence collected by NCIS and then share it with other potential witnesses to find out what really happened in the case, he could’ve swayed the investigating officer in the preliminary Article 32 hearing to recommend against bringing his client to court-martial.
“Three separate judges now have found provisions in this protective order that were unlawful,” Sullivan said.
“We feel vindicated now and we can start conducting our own investigation into what really happened here. Instead, we’ve suffered from a prosecution that was gaming the system to gain a tactical advantage over defense attorneys.”
Sullivan vowed “to return to court on the 15th of February and we’re going to reopen the Article 32 hearing.”
“My client has been denied substantial rights, including having exculpatory evidence presented,” he said.
Under Rosenbloom’s “protective order,” Sullivan said he was allowed to read one thick government binder for about an hour shortly before the preliminary hearing, which prevented him from calling witnesses or properly preparing for Portier’s defense.
And he thinks that was by design.
“What this comes down to is that they wanted an officer’s scalp so they picked Portier,” Sullivan said.
Asked if prosecutors charged Portier to pressure him into ratting out other top officers and senior enlisted SEALs in Group 1 identified in investigative files provided to Navy Times, Sullivan declined comment.
Officials at Group 1′s parent unit, Naval Special Warfare, did not return messages from Navy Times.
Contacted directly by email, the Navy’s lead prosecutor in the case, Cmdr. Christopher W. Czaplak, referred all questions to Navy Region Southwest spokesman Brian O’Rourke, who also declined comment.
So did Phillip Stackhouse, one of Gallagher’s civilian attorneys.