Testimony Revealed: The Case for Murder in Fallujah

by Nathaniel R. Helms

September 25, 2007 -- Three Marine veterans of the horrific Battle of Fallujah, Iraq in 2004 are accused of killing four Iraqi prisoners of war on the first day of the nearly two-month mêlée. What the government says happened to that group of Marines on the opening day of battle was captured in chilling detail in a series of recorded witness statements obtained by Defend Our Marines and offered in this narrative.

The story began unfolding publicly when former infantryman Sergeant Jose Luis Nazario, 27, was charged on August 17 in US District Court for Central California with two counts of voluntary manslaughter. He allegedly killed two Iraqi captives during the Battle of Fallujah thirty months before. A federal Grand Jury subsequently indicted him for the same charges.

The complaint was brought by Special Agent Mark O. Fox of the Naval Criminal Investigative Service on evidence he obtained through witness testimony. Nazario was arrested on August 7 on his complaint while on the job as a probationary police patrolman in Riverside, California. All of the testimony presented here was recorded by Special Agent Fox prior to Nazario’s arrest.

A fortnight after Nazario was arrested, a Marine sergeant named Jermaine Nelson was charged with one count of unpremeditated murder at Camp Pendleton, California. He  confessed to Fox that he killed another Iraqi in the same incident. He was not represented by legal counsel when he told Fox he killed a prisoner on Nazario’s orders. Nelson said the orders came from somebody on a PRR radio he could not hear or identify. On March 21 Fox and Nelson had another interview. After being given his Miranda rights and waiving them, Nelson again voluntarily confessed to killing a prisoner.

Fox:  “You described to me an incident which happened in Fallujah, Iraq back on 9 November 2004 where you and members of 3^rd Squad went into a house. You encounter four unarmed Iraqi males – there are weapons in the house, however the males weren’t holding the weapons and essentially – based on an order that was given to you by Sgt Nazario – Jose Nazario – the four Iraqis are essentially executed, with Sgt Nazario killing two of them, Corporal [Ryan] Weemer killing one of them – and you killing the last one and that was after you were ordered to do so by Sgt Nazario, is that right?”

Nelson: “Yes.”

Less than two weeks later Lt. Gen James N. Mattis named himself the convening authority in the military investigation of the Fallujah killings revealed by Nelson’s arrest. He immediately dismissed the charge against him without prejudice. Mattis will now decide what he intends to do. Mattis can recharge Nelson, reduce the charge, handle it administratively, or simply do nothing.

Ryan Weemer, attending college in Kentucky, is accused by three fellow Marines with shooting a fourth prisoner to death with his pistol in the same incident. Weemer was the Marine who said he spilled the beans to a federal polygraph examiner almost two years ago during a job interview, a story that has now been maligned by his attorney of record. Weemer is not charged with any crime although he is reportedly in the process of being recalled into the Marine Corps. His lawyer, Paul Hackett, of Cincinnati, Ohio, has said he only met Weemer via telephone. Hackett isn’t currently returning telephone calls or emails.

All of the men facing charges were in 3^rd Platoon, Kilo Company, 3^rd Battalion, 1^st Marines – the “Thundering Third” – at Fallujah. Coincidently, Marines from the same platoon were charged with murdering 24 civilians or covering it up at Haditha, Iraq almost a year later in a separate and unrelated incident.

Seven Marines who fought with Third Platoon at Haditha also fought at Fallujah. One 3^rd Platoon Marine who fought at Fallujah was killed at Haditha and two other were wounded there. Four of the Marines charged in the Haditha cases – including two enlisted Marine riflemen who fought at Fallujah - have been exonerated by Mattis for murder and four more await their fates in military criminal procedures.

The Fallujah allegations are spelled out with much sharper detail than the Haditha incident, which was sparked by a wave of specious news reports. The Fallujah case is laid out in a series of statements obtained by Fox from Marines who were there. He made them during his nine-month investigation of the alleged killings.

Fox’s conclusions are offered in his affidavit filed in support of the complaint against Nazario. Basically Fox concluded that Nazario – in the heat of combat – killed two prisoners in retaliation for the death of his friend Lance Corporal Juan Segura. He believes Nelson and Weemer killed two other prisoners.

The statements offered in this narrative are not all the statements taken by Fox, a forty-eight year old civilian investigator who criss-crossed the country gathering them. Other Marines and former Marines report they have been approached by Fox, but these statements represent the crux of the government’s case.

The allegations they contain help explain why Fox was able to convince a civilian US Attorney to bring charges against a former Marine infantry for voluntary manslaughter in civilian court while failing to convince a Marine Corps general to do the same under military law. When considering alleged crimes under the Uniform Code of Military Justice, the mission can trump the sanctity of human life, an unfortunately true circumstance almost never considered a valid defense in civilian jurisprudence.

Ryan Weemer and "Iraqi # 1" 

Weemer is accused by two members of his own fire team, as well as Nelson, with killing an Iraqi prisoner identified as “Iraqi # 1” by shooting him with his pistol. Weemer’s alleged victim is easy to identify because he had a white beard.

Ironically, it was Weemer who said he brought the alleged killings to the attention of authorities when he revealed the killings during a polygraph investigation for a federal law enforcement job. Weemer said at the time that he was asked if he had any knowledge of a wrongful death while he was taking the examination and blurted out the truth. At the time Weemer said he was merely a witness to the killings, which he claimed included eight Iraqis.

Weemer was shot three times at Fallujah in a face-to-face gun duel with two foreign fighters. He killed one of them with his pistol and rifle before being shot in the leg by the other one. The story Weemer first revealed to this writer is largely different than the story emerging in the official investigation.

Weemer has not commented on the veracity of his statement since. Through his sister and two email notes he said he wanted to put the matter behind him. His sister said he revealed the killings to offer an example of what Marines go through in Iraq.

Jose Nazario: "a fabrication"

Unlike Nelson and Weemer, Nazario is not afforded the possibility of a military courts-martial where fellow Marines make up the jury. He is being prosecuted by a civilian attorney, tried before a civilian judge, and judged by a civilian jury in US District Court. His attorney Kevin B. McDermott, of Tustin, California, said he is particularly concerned where Nazario will find a jury of his peers in Riverside.

McDermott claims that Nazario says the whole story is a fabrication. He says the other Marines in Weemer’s fire team made it up. The testimony is obviously conflicted in part by the fog of war, in part by perception and memory, and in part by the worm’s eye view that limits every combatant’s vision to a few meters around him. There may also be some serious lying in the mix. What apparently isn’t at issue is whether four Iraqi insurgents died, only why and how.

Given the problems with clarity among the Marines who were there, it is unlikely any civilian jury can envision the realities confronting Nazario and his squad on November 9, 2004 – designated D+2” at Fallujah, Iraq. McDermott says a civilian jury cannot possibly relate to the conditions and circumstances a Marine squad leader encounters in a no-quarter urban battle.

Counting piles of gnawed bones 

Several days before the attack 3/1’s Marines attended a pep rally of sorts complete with Spartan costumes, charioteers, and rabble-rousing speeches to get their blood up. After moving into position for attack the Marines watched a day and night of intensive bombardment on the city by attack aircraft, artillery and mortars. There was so much red phosphorus falling on the city the young Marines called it “red rain.”

Mobile banks of loudspeakers blasting heavy metal music in mega-decibels announced the attack when Nazario’s squad crossed the line of departure the next dawn. The Marines had their orders. They were simple enough.  In the parlance of one senior Marine who spoke to Kilo Company before the battle, “If it moves, kill it.”

The heavy metal fanfare on D+2 heralded the first time the United States Marine Corps had attacked a major city since Capt Ron Christmas led his Devil Dogs into Hue, South Vietnam thirty-four years before. For his bravery Christmas went on to fame and three-star glory. Every Marine waiting to cross the line of departure expected the same kind of no-quarter killing Christmas found at Hue. 

They were not disappointed. The fighting at Fallujah was a bloody, dirty business. It was war without pretense or compassion. Dogs and cats were already feeding off the rotting Iraqi corpses on D+2 when 3/1’s attack commenced. When the battle ended on December 23 more than 80 percent of the city’s 160,000 buildings were damaged or destroyed. Inside the crushed buildings and debris-filled streets roughly 3,000 Iraqis and their foreign minions were rotting in the abandoned city.

The Marines say a more accurate count of the enemy dead is impossible because their remains were frequently eaten by the starving animals before the corpses could be counted. All that was left for counting were piles of gnawed bones. That is the context the battle was fought in, the context a jury of Nazario’s “peers” will have to consider in their deliberations.

The horrors of Fallujah are undoubtedly a useful pretext for a desperate defense, but the government’s case already has traction. Chief among Nazario’s antagonists is Sgt. Jermaine Nelson. Nelson was a rocketeer from Kilo Company’s Weapons Platoon in November 2004. He was attached to Nazario’s squad along with a demolitions man named Pedro Garcia.

Garcia blew the gate that allowed the squad entry into the house where the Iraqi insurgents were discovered. He later tried unsuccessfully to blow the front door. He took pictures of his handiwork and sent them to his mother in Crystal City, Texas. They are now evidence of the crime scene. Garcia told Fox he saw one body in the kitchen when he was passing through the house. Nelson says Garcia stayed outside while he went in with Weemer’s fire team and Nazario.

Nelson's accusations

Nelson claims Nazario beat the prisoners as well as killing two of them. He claims Nazario repeatedly butt stroked one Iraqi with his M-16. Nazario also kicked and stomped the man repeatedly in the groin, Nelson says. Nazario’s actions offended Nelson, he claims. After watching Nazario butt stroke one prisoner several times he bandaged the Iraqi’s wounded ear.

Fox labeled the butt stroked Iraqi prisoner “Iraqi # 1”.

Nelson: “So I was sitting there looking at the three people and I’m like I don’t see no weapons in here.  So that’s when Nazario says, ‘Hey, have any weapons in the house? Hey, weapons, does he have any weapons, guns,’" (Nelson imitates Nazario in a mocking sotto voce tone.)

“So I’m like, 'Sallah, sallah' – I guess that means weapons back then. He’s like, ‘Oh no weapons, mister, no weapons’. So I guess Nazario pulled the rest of his team in. I don’t even know who the hell was in his team… at that – you know what I’m saying - I don’t remember anybody’s name. I guess, he sends the team in and they told me to do the door – hey stay here, so I said, Hey (unintelligible) and all this other f*****g s**t - rooms and s**t over here. So I guess they go upstairs and do a f*****g check and come back with f*****g AKs and magazines and rounds and s**t… that’s when Nazario starts getting f*****g pissed and starts hitting the f******g dude and hitting him.”

 Fox: “Number 1?”

Nelson: “Yeah, Number 1, he starts hitting him and butt stroked him so that his… I don’t know if he butt stroked him... I remember putting the band aid on the dude’s ear… I remember them laughing at that s**it while we were back on base… about that s**t… it’s like ‘he put a band aid on his ear’… other guys just thought it was funny that I would do that – you know what I am saying?”

In later testimony, Nelson recounts to Fox how Nazario became enraged after the weapons were discovered, how he butt stroked the prisoner several times in a row until Nelson told him to stop. While he bandaged the Iraqi’s ear, Nazario marched a prisoner off and shot him. When Nazario returned from shooting that prisoner he ordered Nelson and Weemer to kill two more, Nelson claims.

Nelson: “You, Weemer are going to do one and I’m going to do another one since you two were scared to do the first one.”

Nelson says he didn’t want to kill a prisoner but he was in fear of his own life after witnessing Nazario shoot a prisoner “right in his f****** eyeball.” Nelson didn’t want to, he said, but he was afraid Nazario might shoot him as well if he didn’t comply.

Nelson: “So I grab one of them – whatever one that was – one labeled Three or Four.”

Nelson marches his prisoner to a “big room” down the hall filled with a safe and bookshelves. Behind him Nazario has another prisoner in tow. Meanwhile Weemer has marched another prisoner into the adjacent kitchen, Nelson says. At that moment, Nazario shoots his prisoner in the head with his rifle. The man falls at his feet leaking blood and brains all over Nazario’s boots, Nelson claims.

Next door Weemer takes out his pistol and shoots the man with the grey beard, Nelson says.

Nelson: “Then Weemer starts f****** shooting the dude with his pistol. I don’t know how many shots he f****** took but it was more than one so he went in a rage.”

Fox: “He [the prisoner] is on his knees?”

Nelson: “He was on his knees and then he shot him and the dude, he was laying on the ground rolling and s***, and he’s just shooting, shooting, shooing, shooting, you know what I mean? He’s just shooting, shooting, shooting so f*** it, that’s when I f****** shot my guy.”

Fox: “Were you just standing there?

Nelson: “No, I moved a little closer.”

After the killing concluded Nelson says he went outside. Once out the door he encounters Garcia, who was still outside guarding the perimeter of the building.  

“F*** him, he [Nazario] gave me the order, he gave us the order to do that s***,” Nelson lamented to Garcia. He was recreating a poignant discussion with Garcia for Fox that occurred after shooting the prisoner. “And I kept telling him, ‘Dude, I’m sorry, you know what I’m saying?’”

Corey Carlisle

Other government witnesses include Corey Carlisle, of Lawrence, Indiana. He was on Weemer’s fire team at Fallujah. Carlisle, 25, is a devout Mormon born in Salt Lake City. He was doing missionary work in Lawrence, Indiana when Fox located him. Carlisle made his sworn statement to Fox in front of a Mormon elder who was present during the interview. It was the second time he had spoken with Fox.

Carlisle told Fox they were originally tasked to clear and search the house because it was believed to be where mortar fire was being directed from. Nazario, Weemer, and Nelson already had four Iraqi prisoners in custody when he got inside, he said.  One of them was older than the other three, a man with a white beard. The other three prisoners were younger – military aged men. After a moment watching Nelson interrogating the Iraqis Nazario told Carlisle to team up with LCpl James Prentice and clear and then search the rest of the house.

They had already cleared the house of any more insurgents and were searching it for weapons and contraband when the alleged killings occurred, Carlisle stated. Prentice had discovered expended AK-47 rounds on the roof and they found an unloaded AK-47 in an office, he said. They had just discovered another unloaded AK-47 secreted between two rugs in the so-called “rug room” when Carlisle heard the first killing shot. It was from a 9mm pistol, he told Fox.  

“I was actually re-searching the rug room, and that’s when I heard the first gunshot and I came to find out what happened,” Carlisle said.

Fox: “Okay, and what did you see when you came out?”

Carlisle: “What I remember is that when I came out I saw Corporal Weemer in the kitchen and there was a body laying down as far as I could see the feet.”

Fox: “Okay,” that was the first body you saw?”

Carlisle: “Yes, that was the first body I saw.…(and seconds later) He was the older man… .”

Carlisle goes on to recount how the body was an elderly man – maybe 50 - with a white beard and grey hair wearing a white robe. Weemer was standing over him with his pistol in his hand. The dead Iraqi was the same man Carlisle had seen Nazario and Nelson interrogating when he first entered the house. Much of the man’s head was missing, Carlisle said.

“What kind of weapon did Weemer have?” Fox asked.

Carlisle: “He shot him with his 9 mil (9mm Beretta).”

Fox: “How do you know that?”

Carlisle: “The sound and he had the 9millimeter in his hand.”

Upon further questioning Carlisle reveals that Weemer told him the dead man had made a try for his pistol.

Carlisle: “I was asking questions about as far as what had happened. And he (Weemer) had made something like ‘he went for a weapon’ or ‘he went for my gun,’ something like that.”

Meanwhile Nazario and Nelson were in the adjacent “living room” with the three surviving Iraqi prisoners, Carlisle said. Along with Prentice, he confronted Nazario. Carlisle said he was concerned about the situation and wanted to know what was happening.

Carlisle: “We came over and talked to Sgt. Nazario. We went over there to find out what was going on and that’s when we saw the three of them lined up in the living room.“ 

Fox: “Was anything said?”

Carlisle: “Something along the lines of them asking Prentice if he wanted to participate in shooting one of them. At that time Prentice was pretty livid towards the fact that previous of this Lance Corporal Segura had just died, we had just found out – barely – that he didn’t make it, so he was pretty ticked off. So at the time he wanted to shoot one of them so… and I wasn’t sure what was going on in the confusion so I started pushing him out and told him that he didn’t want to.”

Fox: “Prentice?”

Carlisle: “Yes, I told Prentice that he didn’t want to do that.”

Prentice and Carlisle left the living room seeking a way out of the house. They went to the front door first, but it was locked, Carlisle added. About that time they heard the first of a series of shots.

Carlisle: “As soon as we got to the front door there was a shot. It was my suspicion it was Sgt. Nazario that shot one of the individuals. All three of them were shot. Between intervals of, I don’t know, Sgt. Nazario – I don’t know - those two individuals were in the room. The first shot came when I was going to the front door. And then I turned around to get out of there and we met up with Weemer.”

Fox: “When you turned around did – did you see, look into the living room?"

Carlisle: “Umm yes, there was one individual down and the other two – I do remember the individual’s faces. Umm, they were, they had just seen their buddy get shot and their faces were not exactly - pretty somber. I saw that, and as soon as I saw that I still knew I needed to get out of there so I started heading for the back door and then on the way to the back door Cpl. Weemer then told us we needed to get out of here and so all three of our fire team left the back door. Now, between, I was talking to Cpl. Weemer and the back door there was two shots. One when I was talking to Cpl. Weemer and then one right as we started to walk out the back door.”

Lance Corporal James Prentice

Prentice has somewhat different recollections of the morning of D+2. He says they were in an adjacent house taking refuge from mortar fire when they began receiving small arms fire from the crime scene building. Nazario ordered Weemer’s fire team to take it out.  After they had secured the building Garcia left his exterior guard position and searched the second floor of the building. He found three AK-47s and their magazines, Prentice said.

Prentice: “Garcia came down and said they had AK-47s and loaded and empty magazines. And that’s when Sgt. Nazario stood them all up and punched them in the face.”

Fox: “Okay, did Garcia actually bring those weapons down?”

Prentice: “He had one of them in his hand and he said there were two more upstairs.”

Fox: “Okay, are you sure it was Garcia?”

Prentice: “From what I can remember it was.”

Fox: “Getting back to what you were saying, what happened then? What did Nazario do?”

Prentice: “Nazario stood all of them up and he punched all of them in the face.”

Fox: “He punched all of them or just one?”

Prentice: “I remember it was all of them.”

Fox: “Did he punch them with his fist or was it his weapon?”

Prentice: “With his fist.”

After that episode Weemer makes an appearance, Prentice says. He had been in a small room nearby containing a safe and a desk. It is where Carlisle said they discovered an unloaded AK- 47. He came in to see what the commotion was about, Prentice said.

Prentice: “That’s about the point where Sgt. Nazario called in on the radio and said that they have four, ahh, fighting age males in the house. At any rate they took fire from the house, what do you want us to do? And they pretty much told them – asked them – ‘are they dead yet?’ He (Nazario) said negative and they said. ‘Make it happen.’ They said, ‘Roger, so I copy,’ and then both…" 

Fox: “Could you hear who they were talking to?”

Prentice: “No, I heard that is what happened in a conversation with Sgt. Nazario when both we were talking to each other right after he got off the radio.”

Fox: “What kind of radio did he have?

Prentice: “A One-Nineteen (119) he was using and then ahh… ”

Fox: “That is not for inter-squad conversation is it? That is for inter-platoon or company?”

Prentice: “Yes.”

At this point in his testimony Prentice’s account varies wildly from Carlisle, the Marine he was ostensibly teamed up with through the entire ordeal. Prentice says that after receiving the order to kill the insurgents Nazario separated a young Iraqi, known as “Number 2,” from the group and led him into a bedroom where he shot him with his rifle. Prentice says after he heard the shot he looked for himself.

Prentice: “Once I heard the gunshot Sgt Nazario came out and I walked over here [pointing to location on hand drawn map]. The young male was lying here, just lying there.”

Fox: “So he’s between the closet and the foot of the bed?”

Prentice: “Yeah.”

Fox: “So that’s where Number 2 ends up?”

Prentice: “Umm huh!”

After acknowledging again that he didn’t actually see Nazario in the killing room shooting the dead Iraqi Prentice moves on to Weemer’s role in the alleged killings.

Prentice: “And simultaneously Corporal Weemer took One (Iraqi #1).

Fox: “Okay, where did he go with One?”

After a brief bit of confusion over who was who, Prentice continued his statement. There was some confusion about where Number Three and Four were standing and in what sequence they were dispatched. Prentice told Fox that Weemer took # 1`into the kitchen and shot him.

Fox: “How many gunshots did you hear?”

Prentice: “I think it was two.”

Fox: “And when Nazario takes Number Four into that bedroom how many shots did you hear?”

Prentice: “Just one.”

Fox: “Okay, and did you see that, that male’s body?”

Prentice: “Ah yes, once he came out I sort of looked in there and it was just laying on the ground. It didn’t even look like there was any blood anywhere at all. He wasn’t moving. Once Three and Four were dead they came out and that is when Sgt. Nazario came out and asked us if anyone else wanted to do this, because I don’t want to do it all myself.”

Prentice testifies that Carlisle was standing next to him when all this occurs. He even draws Carlisle’s location on Fox’s map.

Prentice: “That is when Sgt Nazario said ‘does anyone else want to do this because I don’t want to do it all by myself.’ And he said, ‘Remember what First Sergeant said,’ which was that ‘When we went into the city everybody who was innocent was given a chance to leave, so anything that moves you kill and don’t take any prisoners.’”

"Nobody said anything so I ended up saying, 'Oh, I’ll do it.' And at that point Cpl Weemer said, ‘No, my team is posting security outside’ and he grabbed both Carlisle and myself and we went outside.”

The investigation continues.

Nathaniel R. Helms
Defend Our Marines
25 September 2007

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).

© Nathaniel R. Helms 2007

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