MARINE CHARGED IN CIVILIAN COURT
WITH VOLUNTARY MANSLAUGHTER
AT FALLUJAH SEEKS DISMISSAL
by Nathaniel R. Helms
Monday, April 21, 2008,Riverside, California – The defense team
representing Marine infantryman Jose Luis Nazario asked a federal
court judge Monday to dismiss voluntary manslaughter charges against
their client for allegedly killing two Iraqi insurgents in Fallujah,
Iraq more than three years ago. At the time Nazario was a squad leader
engaged in desperate house-to-house combat.
The decorated Marine veteran was assigned to 3rd
Platoon, Kilo Company, 3rd Battalion, 1st
Marines when the incident allegedly occurred. A year later four
enlisted members of the same platoon would be charged with murder and
other war crimes in the unrelated “Haditha Massacre” incident.
prosecutors allege the unknown dead men were insurgent soldiers caught
with their weapons on November 9, 2004, the opening day of the battle
But even that is not certain, Nazario’s defense
There are no bodies, no names, no grieving
relatives, no civilian witnesses, no crime scene, and no physical
evidence. Last year the government sent investigators to the house in
Fallujah where they thought the crime occurred, but the people who
lived there said they knew nothing about it.
They told the government investigators they were in
Syria when the alleged killings occurred, said Kevin D. McDermott,
Nazario’s lead counsel.
“When they came home everything was fine. There was
no blood, no damage, no destruction, nothing to indicate anything had
happened in their home,” McDermott said.
Without mentioning the paucity of evidence,
McDermott argued that the US District Court has no jurisdiction in
Nazario’s case because decisions made in combat are outside the
jurisdiction of federal courts, he said.
McDermott argued before US District Judge Stephen
G. Larson that the actions “giving rise to the charges against Sgt.
Nazario occurred during intense combat operations, including almost
three weeks of house-to-house fighting meant to remove insurgents from
the city of Fallujah.”
“Every decision, every charge, therefore, must be
examined against the backdrop of battle. The decisions whether and
under what circumstances to employ military force are constitutionally
reserved for the executive and legislative branches,” McDermott said
in his motion to dismiss the charges.
“The government simply has no reason to be involved
in this case,” McDermott added. “The courts have decided over and over
that decisions made in combat cannot be second-guessed in court rooms.
This kind of thing sends a terrible message to our combat troops who
must make split-second decisions to save their lives.”
Nazario, now a civilian without any military
obligation, was charged under the
Military Extraterritorial Jurisdiction Act
(MEJA), a law passed by Congress in 2000 to give
government prosecutors a mechanism for charging civilians and former
service members for alleged criminal acts they committed while serving
Before MEJA, members of the armed forces were
prosecuted under military law or not at all, and in many instances
civilians who committed crimes in foreign lands were completely beyond
the reach of American civilian jurisdiction.
MEJA applies to two categories of people, those
“employed by or accompanying” the armed forces outside the U.S. and
those to whom the Uniform Code of Military Justice (UCMJ) – military
law – applied at the time of the offense. Nazario is in that category
of alleged offenders.
Assistant US Attorneys Jerry A. Behnke and Charles
J. Kovats represented the government in Nazario’s motion hearing. They
argued that MEJA is specifically tailored to prosecute former service
members who allegedly committed crimes while serving in combat.
“On its face, MEJA clearly applies to the instant
matter,” they told Judge Larson in their motion in opposition to Nazario’s request to dismiss the charges. To bolster its case the
government went all the way back to Marbury v. Madison, a famous
Supreme Court separation of powers case heard in 1803 that is familiar
to every student whoever took a course in Constitutional law in
In that precedent setting case, Chief Justice John
Marshall wrote: “The President is invested with certain important
political powers, in the exercise of which he is to use his own
discretion, and is accountable only to his country in his political
character, and to his own conscience. To aid him in the performance of
these duties, he is authorized to appoint certain officers who act by
his authority, and in conformity with his orders.”
“These separation of powers principals are not
implicated where, as here, the executive branch has brought the issue
to the Court by filing criminal charges under clearly defined criminal
statutes and any political policies or questions at issue rest with
the executive [branch]. The killings in this case were unlawful
because they violated clearly established law of war,” the government
Nazario, now 28, is scheduled to go on trial in US
District Court in Riverside, California on July 7, 2008 if the motion
to dismiss fails. He was a probationary patrolman on the Riverside,
Calif. Police Department when he was arrested on August 7, 2007. Nine
days later he was indicted by a civilian Grand Jury hearing the meager
Attack on Fallujah
For more than a month before the November, 2004
attack on Fallujah began the residents of the city were warned by
various means to leave or be treated as insurgents. In the week
preceding the attack Marine Corps and Army psychological warfare teams
showered the city with leaflets warning the 30,000 or so Iraqis still
believed to be in the city of 260,000 to leave.
On November 4, 2004 Iraqi interim Prime Minister
Iyad Allawi warned them that, “The window is really closing for a
peaceful settlement. The Fallujah people, most of them, have left
Fallujah, and the insurgents and the terrorists are still operating
there. We hope they will come to their senses. Otherwise, we will have
to bring them to face justice.”
To emphasis Allawi’s warning American airstrikes
began on November 7 to “shape the battlefield” by destroying suspected
enemy strong points and supply depots inside the fortified city. On
November 8, Marine Corps and Army artillery and mortar batteries began
pounding the city whole sale.
Phosphorous rounds fired from the Amy’s massive
120mm “Mad Mortars” fell like red rain, said Marine Sgt R. J.
Mitchell, who would earn the Navy Cross five days later.
Meanwhile the Marine Corps was mentally preparing
its troops for the impending attack.
Lt Col Willard Buhl, the commanding officer of 3rd
Battalion, 1st Marines held a “Ben Hur Day” rally two days before the
attack began to incite his men to be aggressive. Chariot races,
inspirational speeches and squad, platoon and company pep talks were
given to the men by Buhl, his company commanders and senior
Just before the attack was to commence in the false
dawn of November 9 3/1’s Marines were told “to kill anything that
moved,” dozens of them later reported. No quarter was offered and none
was expected. It was a fight to the death and everyone who fought
there understood it, Nazario said.
Naval Criminal Investigative Service Special Agent
Mark Fox brought the complaint to Thomas P. O’Brian, the US Attorney
for Central California on early August, 2007. He handed the case of to
Sheri Pym, the Chief of the Riverside branch of the US District Court.
In an August 7, 2007 affidavit supporting the
complaint Fox charged that Nazario shot the two unidentified men
during the opening phase of the month-long battle after receiving an
order over his radio to do so. The basis of his complaint are two
partially corroborated statements from Sgt Jermaine Nelson, at the
time of the alleged incident a corporal and weapons specialist
attached to Nazario’s squad for the Fallujah assault.
The two prisoners he is accused of killing were
among four insurgents Nelson said his squad captured and subsequently
killed, Fox alleged in his complaint. The men were captured moments
after a member of Nazario’s squad was shot and killed in the vicinity
of the alleged crime scene.
Nazario is accused of telling an unidentified
Marine that the squad needed “to take care of them” so the unit could
continue its mission, according to the Fox affidavit.
Fox stated that Nazario shot two detainees
execution-style and directed other Marines to shoot the two remaining
prisoners. Nazario allegedly told his squad that he had been asked
during the radio transmission if the Iraqis were dead and indicated to
his Marines that the squad had to move on, according to the affidavit.
“We can't be here all day,” he allegedly said. “You
know what has to be done.”
Fox brought the complaint to the US Attorney after
obtaining two confessions from Nelson, who twice confessed to Fox
after waiving legal counsel that he participated in the killings on
Nazario’s orders, evidence introduced last month at his Article 32
According to Nelson the incident occurred within
hours of the Marines in Nazario’s squad crossed the line of departure
on November 9, 2004 to recapture Fallujah from an Al Qaeda-led army
occupying the ancient city.
Nelson was charged December 7, 2007 with voluntary
murder and dereliction of duty for failing to follow the rules of
engagement and the laws of war regarding the handling of detained
prisoners of war.
The 26-year old infantry assaultman is also charged
with dereliction of duty. Currently Nelson is on active duty at Camp
Pendleton pending a general court-martial. He faces a possible life
prison sentence if convicted.
At Nelson’s half-day evidentiary hearing at Camp
Pendleton on March 28, prosecutors played recordings of the
confessions Nelson gave Fox in the spring of 2006. It is the only
evidence they presented.
In the confessions Nelson told Fox that Nazario
received an order over his radio to kill the prisoners and then
ordered Nelson and a corporal named Ryan Weemer to assist him. Nelson
claims that Nazario shot two of the prisoners in the head, he shot the
third, and Weemer gunned down the fourth man with his pistol.
Weemer, now a sergeant, was recalled to active duty
at Camp Pendleton from the inactive reserves and charged with murder
and dereliction of duty on March 18. His Article 32 investigation to
determine if there is enough evidence to court-martial him is still
pending, a Marine spokesman said last week.
Weemer brought about the investigation two years
ago when he revealed to Secret Service investigators that he
“witnessed” a “wrongful death” during a polygraph examination for a
uniformed Secret Service job, he said. Soon after revealing the
circumstances to investigators the NCIS initiated a formal
McDermott, a former Marine lawyer and longtime foe
of Marine Corps prosecutors, said Nazario’s defense may be difficult.
He notes that civilian juries may view soldiers
like Nazario as they would police officers and apply high standards,
without an understanding of what a soldier might do under battlefield
He argues that Marines’ cases during a court
martial, for example, are heard by other military personnel, who
likely have served in combat and have faced similar battlefield
Today, Nazario was up early after a fitful night of
sleep. While he is optimistic that he will eventually prevail, he is
not entirely convinced the judge will simply dismiss his case without
“They tell me it will be dismissed, but I will wait
and see. It has been almost a year since all this started and my wife
and son and I don’t get as upset or excited as when it first started,”
the soft-spoken native New Yorker said from his temporary digs in
California. “I have one more motion hearing in June if this doesn’t
happen and then I will stay out here until the trial is over. In the
end we will win and I will get my job back –I got good attorneys and
this stuff never happened. I would just like to get it over, the
sooner the better.”
Awaiting a decision
decision should be out next week, McDermott said at the conclusion
of today's 90-minute motion hearing. He said he was "optimistic"
that the court would find in his client's favor.
court recognizes there is no precedent for this," McDermott
explained. "The court will proceed carefully because of the unique
nature of Jose's circumstances. It is important that everything
offered here today is examined carefully."
Nathaniel R. Helms
Defend Our Marines
21 April 2008
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam veteran, former police officer, war
correspondent, and, most recently, author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).