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Attorneys stunned CNO’s SEAL court-martial orders not followed

Hours after Chief of Naval Operations Adm. John Richardson ordered authorities to dismiss all charges against SEAL Lt. Jacob X. “Jake” Portier, prosecutors told the military judge hearing the case that they couldn’t actually dismiss it.

Prosecutors had accused Portier of helping to cover up alleged war crimes committed by Special Warfare Operator Chief Edward “Eddie” Gallagher during an Alpha Platoon, SEAL Team 7, deployment to Iraq in 2017, but Richardson on Thursday ordered the Navy to drop the case in what appeared to be unambiguous language.

“Chief of Naval Operations Adm. John Richardson today dismissed all charges in the case of Lt. Jacob Portier," read the Thursday statement issued by the sea service.

Reached at the Pentagon by Navy Times, officials appeared stunned that CNO’s orders weren’t followed. Adm. Richardson at the time was in Millington, Tennessee, visiting Navy Personnel Command, they said.

Outside the Naval Base San Diego courthouse, attorneys told Navy Times that they were confused by the service’s failure to submit paperwork dismissing the case to Capt. Aaron Rugh, the military judge hearing the case.

Rugh was forced to adjourn the hearing until the afternoon.

“We don’t know what’s going on,” said Portier’s civilian defense attorney, Jeremiah J. Sullivan III. “This is crazy.”

Around 10 a.m. in San Diego, however, Sullivan indicated that he received a call from the CNO’s office assuring him that the admiral’s order would be followed and Portier would leave the courtroom as a free man.

The attorney said prosecutors in San Diego appeared to blame the CNO’s office for the mix up.

Navy officials declined comment about that but Portier’s prosecution had been teetering since the case against Gallagher collapsed on July 2, when a military panel of his peers returned a verdict of not guilty on charges that included premeditated murder of an Islamic State prisoner of war and obstruction of justice.

The sole charge that stuck was a specification for appearing in a photo next to the detainee’s dead body, something Gallagher never denied doing.

Richardson’s Thursday message also nixed any action against Special Warfare Operator 1st Class Corey Scott, the SEAL petty officer who confessed on the witness stand during Gallagher’s trial to killing the prisoner so that he wouldn’t be tortured to death later by Iraqi forces.

It also ordered Vice Chief of Naval Operations Adm. Bob Burke to investigate the leadership and performance of the service’s Judge Advocate General Corps in the wake of a prosecution plagued by allegations of warrantless spying on defense lawyers and Navy Times; manipulating witness statements to Naval Criminal Investigative Service agents; using immunity grants and a bogus “target letter” in a crude attempt to keep pro-Gallagher witnesses from testifying; illegally leaking documents to the media to taint the military jury pool; and then trying to cover it all up when they got caught.

Members of Alpha Platoon, SEAL Team 7, pose in front of the body of a dead Islamic State prisoner of war in Iraq in 2017. Only Gallagher was convicted for appearing in the photo. (Navy)
Members of Alpha Platoon, SEAL Team 7, pose in front of the body of a dead Islamic State prisoner of war in Iraq in 2017. Only Gallagher was convicted for appearing in the photo. (Navy)

Richardson’s message arrived only a day after a tweeting President Donald J. Trump ordered him and Secretary of the Navy Richard V. Spencer to revoke four Navy Achievement Medals bestowed on four junior officers assigned to Gallagher’s prosecution team, citing concerns about the Navy’s conduct in the court-martial case.

Trump concluded his Tweets by saying he was “very happy for Eddie Gallagher and his family!”

That might not be a sentiment shared by Navy Region Southwest commander Rear Adm. Bette Bolivar, the convening flag officer in Gallagher’s court-martial.

Although military jurors credited Gallagher with time served in confinement, they recommended that the Navy demote him to petty officer first class. Under the services regulations, however, that conviction at a general court-martial proceeding coupled with a day behind bars could bust the highly decorated SEAL down to E-1.

Arguing that the minor photograph charge likely would netted Gallagher non-judicial punishment had it not been tied to a court-martial trial, the SEAL’s civilian attorney, Timothy Parlatore, urged Bolivar to defer that sanction and institute a lighter sentence that would preserve his anchors and let him retire quietly from the military after 20 years of service.

Dated Friday, a letter signed by Bolivar telegraphed a harsher outcome looming for the SEAL.

She suggested that factors such as witness intimidation, interference with the administration of justice, the effect of deferment on the good order and discipline on the command and Gallagher’s character could be considered and that Parlatore’s plea “fails to satisfy” those concerns.

Parlatore told Navy Times that Bolivar’s letter seemed to lean on the charges rejected by the military jury to bolster the SEAL’s punishment.

“Given the national attention that this case has received and the significant fallout from the highest levels of the Navy, it is incomprehensible to think that, after being acquitted of witness intimidation, Eddie Gallagher might now try to intimidate the witnesses who lied about him,” Parlatore said.

“Since his acquittal, Eddie Gallagher has been continuously subjected to unlawful retaliation by the command and the JAG Corps. Because the local Navy leadership seems entirely deaf to the guidance provided by both the Pentagon and the White House to end this nightmare, someone at a higher level needs to step in and order that Eddie Gallagher be permitted to immediately retire as a Chief Petty Officer.”

But Navy Region Southwest spokesman Brian O’Rourke said that Bolivar’s letter had nothing to do with the charges in Gallagher’s court-martial case.

“The administration respects the panel’s decisions and the decision to deny defense counsel’s request for deferral of sentence had nothing to do with the trial,” O’Rourke said.

He refused to elaborate on his statement.

It remains unclear if Bolivar was embracing the witness intimidation charge rejected by the military jury or reacting to an often incendiary Instagram account helmed by Andrea Gallagher, the SEAL’s wife, which continues to lampoon the special operators who testified against her husband during the court-martial trial.

Parlatore hopes Bolivar won’t penalize Gallagher for his wife’s words but he also urged her to order a probe into the witnesses the account frequently skewers.

“These witnesses went in and lied and the Navy is making zero efforts to investigate them for perjury and hold them accountable,” said Parlatore.

Parlatore has exchanged letters with Bolivar before.

In April, she rejected his efforts to further immunize Scott from prosecution, a decision by her that led to the SEAL withholding his bombshell testimony until he took the stand as a government witness against Gallagher, words that helped unravel the case against him.

“Scott would’ve told them all of that in April and they would’ve had to have made a decision about going to trial. They could’ve and should’ve dismissed and saved the Navy a great deal of embarrassment and the taxpayers a lot of money,” said Parlatore.

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