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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.

Government prosecutors allege the unknown dead men were insurgent soldiers caught with their weapons on November 9, 2004, the opening day of the battle for Fallujah.

But even that is not certain, Nazario’s defense lawyers argue.

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.”

For the prosecution

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 overseas.

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 college.

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 prosecutors said.

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 evidence.

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 non-commissioned officers.

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.

Bringing charges

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 investigation showed..

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 investigation.

For the defense

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 conditions. 

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 conditions. 

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 a trial.

“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

The 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.

 "The 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).

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