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Second Navy SEAL is charged in alleged Iraq war crime cover-up

By ANDREW DYER | The San Diego Union-Tribune | Published: November 21, 2018

SAN DIEGO (Tribune News Service) — Evidence was presented in a San Diego military courtroom Tuesday to determine whether a Navy SEAL platoon commander will be tried on charges that he failed to act when made aware of atrocities allegedly committed by another SEAL during a 2017 deployment in Iraq.

Lt. Jacob Xavier Portier faces seven charges under the Uniform Code of Military Justice, including conduct unbecoming an officer and a gentleman and dereliction of duty.

Military prosecutors allege Portier knew about the actions of Special Operations Chief Edward Gallagher, who is accused of killing of a wounded teenage ISIS combatant in Mosul. In the hours after the killing, Portier conducted a reenlistment ceremony for Gallagher next to the teenager’s corpse.

Portier then, according to the prosecution, ordered his platoon to take a group photo next to the dead prisoner.

Prosecutors said that although Portier was not present during the killing, he was made aware of it by other SEALs.

The defense argued that Portier reported Gallagher as soon as the lieutenant found out about the incidents.

Marine Capt. Conor McMahon argued the government’s position in front of Navy Cmdr. Phil Hamon, who presided over the hearing at Naval Base San Diego.

“This case is about a Navy lieutenant who didn’t possess the moral courage to do the right thing,” said McMahon, in his closing comments. “Lt. Portier didn’t take out a hunting knife and stab a prisoner in the neck. He didn’t get behind a sniper rifle and shoot at a little girl trying to escape from ISIS and he didn’t shoot an old man taking water jugs to the river. But he knew about it — and he did nothing.”

Tuesday’s hearing — called an Article 32 hearing — was not a trial, but a preliminary hearing, similar to what would be held in front of a civilian grand jury. Hamon will make a report to military authorities, who will then determine whether Portier will stand trial.

Navy judge advocates said that decision was expected by early December.

Prosecutors allege that other, unnamed members of the platoon came to Portier throughout the deployment with concerns about Gallagher’s conduct in the field, including shooting at least two non-combatant civilians.

After the platoon returned to San Diego, some of its members continued to lobby Portier to hold Gallagher accountable for his actions, prosecutors said.

“It got so bad that by February or March 2018, (the two SEALs) were so frustrated that they went to Lt. Portier and told him if an investigation wasn’t launched, they were going directly to NCIS, the Commodore or Fox News,” McMahon said. “This is not a case about any minor misconduct by the enlisted sailors in the platoon or any perceived guilt by association. This is about Chief Gallagher killing civilians indiscriminately and the chain of command that did nothing about it.”

Prosecutors also allege Portier made false statements when questioned about Gallagher’s actions by his commanders.

Attorney Jeremiah Sullivan, who represents Portier, said there are conflicting accounts from members of the platoon, and that instead of reporting the incidents to him, the SEALs actually kept information from Portier. Once he found out, he did report Gallagher to his chain of command. Sullivan is asking for a speedy trial for Portier, saying the prosecutions case was weak.

“It’s not going to go well for the government,” he said in comments to the hearing officer.

After the hearing, Sullivan told the Union-Tribune that members of the platoon had had meetings in order to “get their stories straight” and that “a war crime was never reported to (Portier).”

Portier was an ROTC cadet at Ohio State University and reported to the Navy’s Basic Underwater Demolition/SEAL school upon his graduation in March 2010. He has served with San Diego-based SEAL units since then. His awards include the Bronze Star with combat “V” device and the Navy/Marine Corps Commendation Medal.

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