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by attorney Kevin Barry
McDermott |
May 23, 2008
Defendant Jose Luis Nazario, Jr. is charged in United States
Federal District Court, Riverside California, by indictment with two
counts of voluntary manslaughter for killing two unknown individuals
on or about November 9, 2004. He is the first former United States
Marine to be charged under the Military Extraterritorial Jurisdiction
Act, or MEJA. This statute confers criminal jurisdiction over
Department of Defense contractors and former servicemembers to
district courts in the United States for conduct occurring overseas.
Venue is predicated upon determining the district in which the
defendant left from to go overseas.
In
addition to Jose, Sgt. Jermaine Nelson, USMC and Cpl Ryan Weemer USMCR
are active duty Marines charged with murder under the UCMJ. Their
criminal proceedings are occurring at Marine Corps Base Camp
Pendleton.
The
backdrop for the allegations is the city of Fallujah, Iraq during
Operation Al Fajr, initially known as Operation Phantom Fury,
conducted on or about November 8 through November 22, 2004. The object
of the operation was to eradicate domestic and foreign insurgents
infested within the city limits of Fallujah. The city had been a
developing sore point for the Coalition Forces as it was an extremely
dangerous location. This danger was highlighted by the murder and
mutilation of Blackwater employees in March 2004. Their remains were
hung from a bridge accessing the city and our Commander in Chief and
this country demanded action.
The
operation was commenced after extensive effort by Coalition Forces to
encourage non-insurgent residents to leave the city. The impact of the
effort was the mass exodus of thousands of individuals from the city.
At the time of the onset of the operation, there was a general
perception among the command and the troops that the vast majority of
individuals left behind were insurgents and spoiling for a fight. In
fact, the Government investigators have been attempting to determine
whether the Rules of Engagement were extremely relaxed during the
fight and whether these RoEs had an impact on the conduct underlying
this case.
Action
commenced on or about November 8, 2004 with the attack upon a train
depot on the outskirts of the city. It did not end until on or about
November 22, 2004 when it was determined that every structure in the
city had been searched and cleared. The bulk of the action was carried
out by various elements of the United States Marine Corps. Third
Battalion, First Marine Division, 3/1, was one of the elements and the
parent command for Jose, Jermaine and Ryan. Through the course of the
operation, this battalion, consisting of approximately 1500 Marines,
suffered 23 dead and 307 wounded. Defendant Nazario, a Sergeant in the
Marine Corps, was a squad leader within 3/1. Sgt. Nazario fought with
his unit for the entire length of the operation and earned the
Navy/Marine Corps Achievement Medal with the Combat “V” devise for
valor occurring during a battle with insurgents known in Marine Corps’
lore as “Hell House.” It can be assumed that during this armed
conflict, Sgt. Nazario and his squad engaged the enemy often and
throughout the operation.
The
United States Government, through the Department of Justice and the
United States Attorneys Office, has alleged that the killings of
unknown John Doe #1 and John Doe #2 occurred on or about the second
day of the operation, November 9, 2004. To date, the Government has
not provided the defense with any forensic evidence in support of the
counts. The investigation into the allegations started shortly after
Ryan Weemer made admissions of misconduct while undergoing a polygraph
examination for employment with the United States Secret Service.
Agents for that agency forwarded the information to the Department of
Defense. Investigators for the Naval Criminal Investigation Service, [NCIS],
were assigned to the case and extracted admissions from Sgt. Nelson
and antidotal information from other members of the squad.
Investigators for the Government do claim to have located a site that
the alleged killings occurred. This claim is based upon a photograph
taken by a Marine who photographed the exterior of a house in
Fallujah. He recalled taking the photograph for posterity sake, as it
was the first occasion he was able to use his technical skills in the
battlefield; this Marine is a demolition expert and at that location,
he was required to blow open a safe. From this photograph,
investigators gleaned a location within the city and subsequently
contacted the occupants of the house. The occupants were interviewed
and claimed to have been in Syria for medical treatment at the time of
the operation. Further, they told investigators that they returned to
the house and did not observe any bodies or any evidence of conflict
in the house. To date, the undersigned has not been informed as to
whether the occupants claimed to have a safe and whether they observed
the safe to have been blown.
In the
most recent discovery provided to the defense, there are numerous
photographs provided that appear to have been taken at night and
appear to depict a home’s exterior and interior. Individuals in the
photographs, believed to be investigators, are observed taking
measurements and conducting other measures similar to a crime scene
investigation. No results of that investigation have been provided to
date.
In
light of the paucity of evidence, the assistant United States
Attorneys in charge of the case have decided that the charges against
Jose are not sufficiently serious enough to convince him to make an
admission and have returned to the grand jury seeking to obtain a
superceding indictment for murder and for use of a weapon in the
commission of a felony. This superceding indictment could result in a
life sentence for Jose.
To
secure the superceding indictment, these same assistant US Attorneys
have issued use immunity orders to Jermaine and Ryan. Despite the fact
that both men face murder charges, the prosecutors have secured
testimonial grants of immunity for each and have compelled Jermaine
Nelson to appear before a grand jury to testify. At this grand jury
proceeding, Jermaine Nelson refused to answer any questions.
In a
hearing before District Court Judge Percy Anderson, Jermaine Nelson
was taken into custody on three occasions and on all three occasions
refused the Judge’s order to testify. On the final attempt, Judge
Anderson offered to allow Jermaine to appear in Camp Pendleton on the
morning of May 23, 2008 for his arraignment on the murder charges and
to allow Jermaine to return to the District Court in the afternoon.
The purpose for the delay was to allow Jermaine the opportunity to
reconsider his position. At that point, Jermaine informed Judge
Anderson that the delay would not be necessary and that he was ready
to go into custody right then and there. He was taken away in
handcuffs.
His
counsel appeared for Jermaine at the arraignment hearing on May 23,
2008 in Camp Pendleton. At that point in time, counsel for Jermaine
learned that the authorities, contrary to their public statements, had
been cooperating with the United States Attorneys Office as they
realize the lack of evidence for the court martial against Nelson and
Jermaine. It is assumed that they will expect Nelson and Weemer to
crack under the pressure of indeterminate confinement and eventually
coerce them to regurgitate the story the prosecutors want to hear.
MEJA is
the gift to the service member that “keeps on giving.” MEJA has no
statute of limitations. That means that any vet, self-medicating his
PTSD issues at the end of a bar because he can’t get the help from the
VA as he or she should, is in harms way of an errant AUSA or Justice
official because he or she happens to embellish a “war story.”
The
additional irony about this statute is the fact that it is selective
in its scope. As anyone may recall, there was a hue and cry over the
Blackwater employees involved with the deaths of civilians in Baghdad
in September 2007. There was much hand wringing by officials and
promises that the matter would be investigated. All show and no
substance as MEJA does not apply to Blackwater and its employees. The
contract that employs Blackwater was executed through the Secretary of
State and not DoD.
Unless
you are a former Marine or a DoD contracted employee, do as you wish
in the battle zone.
In the
interim, men like Jose, Jermaine and Ryan face indefinite confinement
for answering the call to arms in Fallujah. |