Government prosecutors, who filed an application in US District
Court for an order compelling two Marines co-defendants to testify
against their former squad leader, revealed that one of them was a
government informant.
All
three men are accused of executing four enemy combatants they captured
in the opening hours of the month-long battle of Fallujah in November
2004.
Documents filed in the US District Court for Central California on August
11 reveal that Sgt. Jermaine Nelson, a co-defendant in the case
against former Marine Jose L. Nazario, tried to trick his former squad
leader into admitting the incident occurred.
Nazario,
28, is scheduled to go on trial next Tuesday in Riverside, California
for killing two insurgent prisoners in Fallujah, Iraq, encouraging two
subordinates to execute two other prisoners, and unlawfully using his
rifle during the incident.
Nazario
allegedly ordered Nelson and Weemer help him execute the enemy
combatants after receiving radioed instructions to do so, the
government claims.
US
Attorney Thomas P. O’Brien asked US District Judge Stephen G. Larson
to issue an order compelling Nelson and Sgt. Ryan Weemer to testify at
Nazario’s trial. Nelson and Weemer voluntarily went to a federal
lockup in May and June on civil contempt charges for refusing to talk
to a federal Grand Jury looking at the evidence.
If they
refuse to testify at Nazario’s voluntary manslaughter trial, they face
criminal contempt charges and mandatory jail time, the defense says.
Weemer’s attorney Christopher D. Johnson has already told the court
Weemer will not testify, the documents showed.
Nelson’s civilian attorney Joseph Low is reportedly weighing a
government offer of limited immunity in return for his client’s
cooperation. Low has not returned telephone calls regarding the
government offer.
After Nelson was jailed in May for civil contempt, following his
refusal to testify before the federal Grand Jury seated in Riverside,
Low said that Nelson told the court he would never inform on a brother
Marines.
"It was a beautiful thing to see," Low added. "The prosecutors are
attempting to break the bonds formed in combat. Nelson told them he'd
rather go to jail than rat out a brother Marine."
Both
Nelson and Weemer currently under open arrest at nearby Camp Pendleton,
charged with voluntary murder and dereliction of duty during the same
November 9, 2004 encounter.
The
superior who allegedly radioed the order to Nazario has neither been
charged nor identified.
Nazario
was initially indicted on August 7, 2007 for two counts of voluntary
manslaughter allegedly committed during the battle. The indictment was
based on a Naval Criminal Investigative Service complaint alleging
that Nazario, Weemer and Nelson killed four prisoners after receiving
radioed instruction from an unidentified superior to do so.
Nazario
is charged under a new law that allows the government to prosecute
former service members for crimes allegedly committed while under
military jurisdiction. It is the first time a Marine has been charged
under the law.
Nelson
and Weemer are charged by the Marine Corps and face general
court-martials.
In the
applications for the ex parte orders US Attorney Thomas P.
O’Brien asked the court to make Nelson and Weemer testify about what
they did and later said about the alleged incident. In the narrative
supporting the government’s request O’Brien revealed that, during
January 2007, Nelson agreed to help trap Nazario by recording
telephone calls between the two former comrades-in-arms.
On
January 8, Nelson, under the direction of Naval Criminal Investigative
Service Special Agent Mark O. Fox and with the approval of Marine
Corps prosecutors, made his first call to Nazario.
During
the conversation Nazario and Nelson discussed the alleged killings in
a cryptic conversation that the government claims clearly demonstrates
that Nazario participated in the executions, the government documents
show.
In one
instance the secretly recorded conversation turns to what Nazario
would say if he was asked during a polygraph test whether he had ever
murdered anyone. Nazario apparently didn’t respond so Nelson, who is
African-American, then asked Nazario, “I mean we had the right orders,
didn’t we?”
Nazario
responds, “Yeah.”
Nelson
then asks, “Who gave us the orders though, n-gger?”
Nazario
responds, “I did.”
After a
brief time Nazario expands on his explanation, the government claims.
“That
sh-t is coming from the battalion commanders. We got to get from Point
A to Point B and we ain’t got time to throw motherf-ckers on a truck
‘cause we’re moving.
"It
was, you know, a decision we made because it was the outcome that was
best. So it was, it was a decision. You can’t play Monday morning
quarterback, bro.”
The
government acknowledges that the enemy combatants the Marines
allegedly killed have never been proven to exist. Neither is there an
identifiable crime scene, forensic evidence, or any missing persons
report, government evidence shows.
During
the battle, Marines from Nazario’s company encountered foreign
fighters from 17 nations opposing their advance into the al
Qaeda-controlled city, the Marine Corps said.
Nazario’s platoon leader, radio operator and the platoon’s senior
Marines wearing private inter-squad radios that day in Fallujah told
Fox in recorded, sworn statements that no such order was ever sought
or given on any Marine Corps radio used during the operation.
Nazario’s defense attorney Kevin B. McDermott says Nazario’s claim of
innocence is supported by the absence of any physical evidence
indicating that a crime was ever committed.
Without
convincing physical evidence that government is trying to prove that
the killings occurred using the confused and conflicting statements of
Nelson, Weemer and several other witnesses who claim they heard shots
and subsequently saw dead bodies without seeing what actually
happened, their statements to Fox revealed
The
government’s initial complaint alleged Nazario killed two prisoners in
the heat of passion after witnessing the death of squad member LCpl
Juan E. Segura, the first Marine to die in the battle of Fallujah.
Before
Nelson obtained legal counsel he told Fox in two statements that he
shot one insurgent with his rifle, Weemer shot another prisoner over
and over again with his pistol, and Nazario executed the remaining two
with his rifle after getting a radioed instruction to do so.
Weemer,
also without legal counsel, told Fox he can’t remember whether he
personally witnessed the alleged radio conversation or heard about it
from somebody else. Weemer also told Fox he executed one prisoner with
a single shot from his pistol. He denied knowing who shot the other
prisoners.
Nazario
says the incident never happened at all.
__________________________________________
Nathaniel R. Helms
Defend Our Marines
14 August 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).
