by Nathaniel R. Helms | 4 September 2010 |
Read the NCIS report at the
The 82-page summary
of the Naval Criminal Investigative Service inquiry into
allegations of murder at Fallujah, Iraq offers an inside glimpse of
frustrated investigators stymied by a green wall of silence that
surrounded the infantrymen from the 3rd Battalion, 1st Marines after a
few of their own cried murder.
The investigation was triggered by discharged Marine Ryan Weemer
during a Secret Service pre-employment polygraph examination in
October, 2006. The former corporal told the examiners he had
participated in the execution of four captured enemy combatants at
Fallujah in response to a question about particpating in unlawful
activities while in the service. The former Kilo Company, 3/1 fire
team leader “alluded that similar attrocities had occurred on other
occasions, indicating his unit did not take any prisoners,” according
to the declassified NCIS report obtained by Defend Our Marines.
Neal Puckett, the lead attorney representing Haditha defendant SSgt
Frank Wuterich in his upcoming court-martial, says the revelations
contained in the Fallujah ROI summary are extremely important to his
client’s case. The perceptions and previous experiences of the Marines
who endured the ferocious battle influenced the men who found
themselves ambushed at Haditha a year later. Former Haditha
co-defendants LCpls Justin Sharratt and Stephen Tatum survived the
vicious Hell House battle at Fallujah that is now enshrined in Marine
Corps lore, as did Weemer, Nazario, Nelson and several of the Marines
who were reluctant witnesses in both cases.
The already maligned infantry battalion was deep in the throes of
self-flagellation following the specious “Haditha Massacre”
allegations when Weemer confessed. His timing couldn’t have been
worse. At Camp Pendleton his buddies in Kilo were already taking head
shots for the alleged slaughter of innocents at Haditha. Two months
later four of them would be indicted for murder. The fallout came fast
By the summer of 2007, Weemer, his former squad leader Jose Nazario, a
rookie cop in Riverside, California, and Sgt. Jermaine Nelson, an
assaultman still in Weapons Co., 3/1, were charged with executing
insurgents after Nelson corroborated Weemer’s account with a rambling
confession of his own. Nelson hadn’t been diagnosed yet, but he was
suffering from pronounced Post Traumatic Stress Disorder when he
offered his account of what happened on Nov. 9, 2004.
Weemer, promoted to sergeant in the Reserves, was recalled to active
duty to face murder charges. Nelson was charged with murder at almost
the same time. Nazario, a civilian with no obligation to the Corps,
was charged in U.S. District Court with voluntary manslaughter and
assault. Later he was indicted again for using his rifle to commit a
felony. He was first Marine – and arguably the first service member -
charged with a civilian crime that allegedly occurred while on active
Perp walk for a hero
“It had always been our
contention that the case was never about Jose, it was about the
command,” explained Orange County defense lawyer and former Marine
Kevin B. McDermott when asked about the findings in the ROI summary.
His team of lawyers defended Nazario. “Even before the AUSA (Assistant
US Attorney) got the indictment from the grand jury, he [Jerry A.
Behnke] requested a sit down with counsel to press the fact that they
wanted Jose’s cooperation and not his prosecution. They wanted to know
where the order came from. When Jose was not about to do that, the
AUSA had no choice. The high profile arrest of a former Marine could
not just be dropped, not after an indictment had been obtained.”
In May, 2010 McDermott was surprised to learn from lead NCIS
investigator Special Agent Mark Fox that one federal Grand Jury in
2007 secretly “no billed” – refused to indict – Nazario so the AUSA
who brought the case was forced to shop around for another Grand Jury
that would indict him on evidence so flimsy it is almost never relied
upon in “ordinary” federal prosecutions, McDermott said.
In the mean time Fox arrested Nazario and “perp walked” him in front
of his peers in handcuffs. It was part of the investigative agency’s
clumsy effort to psychologically break the hardcore former Marine’s
will. Fox later told Nazario he “should have talked to him” when he
had the opportunity.
It was an inauspicious beginning of an investigation that was supposed
to be targeting senior Marines who ostensibly ordered Nazario to carry
out the executions. A few weeks later the second Grand Jury indicted
Nazario on Fox's complaint, the one Fox had filed to arrest Nazario in
July 2007. After posting his house for bond, Nazario spent the next
six months unsuccessfully looking for work while the case ground on.
“They gave us an additional chance in the spring of 2008. Again we
were offered a deal, plead to the sheet and cooperate,” McDermott
said. “We said ‘no.’ They went back to the grand jury to up the
charges from Voluntary Manslaughter to Murder. The grand jury refused
to go along, although they did give the AUSA the additional count of
'use of a weapon in the commission of a felony' a mandatory minimum 10
years if convicted.”
“Now he can’t get a job doing squat,” McDermott added, noting his
partner is pursuing a lawsuit against the City of Riverside for
discharging Nazario without legal or ethical cause. Meanwhile Nazario
is attending college in California.
Anything that moves
At the heart of the criminal complaint that eventually evolved was who
pulled the trigger. The AUSA opined in the government’s trial
memorandum that the radioed order Weemer and Nelson said Nazario
received from higher ups to kill the four prisoners was not relevant
because the defendant could not rely on “obedience to orders” as a
“Are they dead yet,” the unidentified superior supposedly inquired.
The squad’s blood lust was up, Weemer told the undoubtedly astounded
Feds, especially his own. When the order came his hands were still
sticky with blood from his best friend LCpl Juan Segura, who died of
gunshot wounds during the fight. After Nazario acknowledged the
command, Weemer said he took one of the prisoners into a different
room and shot him with his 9mm pistol. The agents immediately
communicated Weemer’s confession to the Naval Criminal Investigative
Service and the hunt was on.
The incomplete NCIS
summary reveals enough to show that on October 18, 2006 the Naval
Criminal Investigative Service, the U.S. Secret Service and the
Commanding General of the 1st Marine Division knew that the former
fire team leader was claiming 3/1’s combat-hyped Marines had been
ordered to “take no prisoners” at Fallujah. The startling admissions
were considered so profound the report was given the highest NCIS
designation “Director’s Special Interest” and a copy forwarded to the
Marine Corps as soon as the NCIS was notified of Weemer’s
“confession,” the report shows.
The former rifleman’s unsolicited admission on Oct. 9, 2006 set off a
violent chain reaction that swiftly climbed up the Marine Corps’ chain
of command before coming to rest on the backs of three lowly grunts
fighting to stay alive in the midst of the most ferocious battle the
Marine Corps had fought in forty years. Despite assertions by the AUSA
to the contrary, the investigation to identify those allegedly
responsible for giving the radioed order never got off the ground, the
ROI summary shows. With the exception of a few “pretext telephone
calls” to the former 3rd platoon leader and a cursory interrogation of
the former Kilo Company commander the investigation never rose above
One witness, a riflemen who said he observed some of the reported dead
men, told NCIS special agents that Kilo’s highly respected 1st
Sergeant at Fallujah told his Marines the day before that “anything
that moves gets killed, that he didn’t want us to take any prisoners,
and that the innocent people were given time to leave.” The former
first sergeant provided NCIS his version of the allegedly illegal
order and the matter was dropped, the summary shows.
I was justified in
what I did over there
The enlisted Marines who
lived through the extraordinary time like to say it was “déjà vue all
over again” when the murder allegations surfaced. After a lot of talk
about leaving no stone unturned the highest ranking Marine charged
with a crime was a Sergeant E-5, one step above the lowest rung on the
ladder of command. The allegations that the Marines battling in the
streets were ordered to execute prisoners was no longer a serious
subject of the investigation. The Director’s Special Interest case was
subsequently handled as an ordinary street crime.
The NCIS took immediate
advantage of Nelson’s battle rattled condition to induce him to make
clandestine telephone calls – the so-called “pretext calls”- the
controlling agents hoped would entrap other suspects into confessing
murder. Somehow the word got out. While Nelson and his handlers were
trying to trap more Marines in their web of intrigue the Marines he
was calling were warning each other to watch out for Nelson. The
The following year Nelson
and Weemer redeemed themselves in the eyes of their brother Marines
when they accepted imprisonment in a nasty California county jail in a
federal contempt beef rather than testify against Nazario. The day
they marched into the Federal courtroom, snapped to attention and
refused to testify was a proud moment, Nazario later said. The
prosecution tried all sorts of means to shake their critical testimony
loose without success. In the end the judge gave up.
On August 29, 2008 a jury
in US District Court for Central California at Riverside found Nazario
innocent of charges of voluntary manslaughter, assault, and using his
military issue weapon in the commission of a felony during the
supposed offense. The jurors said the NCIS had failed to convince them
Nazario had executed two of the four elusive insurgents never
identified from among the estimated 3,000 enemy dead littering
Fallujah’s 140,000 battered structures. Although Nazario was freed
Weemer and Nelson still faced charges of unpremeditated murder and
related offenses at nearby Camp Pendleton.
At his court martial
Weemer claimed the decedent he was accused of killing had gone for his
weapon. Nazario refused to testify, something neither the Marine Corps
or NCIS could do nothing about. On the last day of testimony Navy
Cross recipient Sgt. Maj. Brad Kasal, wounded alongside Weemer in the
Hell House, told the panel he was a fine Marine who always displayed
"excellent" military bearing.Without any evidence to the contrary
Weemer was found not guilty on April 9, 2009 by an eight-officer
"I was justified in what
I did over there," the Illinois native reportedly told North County
Times reporter Mark Walker after hearing the not guilty verdict.
Ultimately Nelson, now
29, waffled about his role several times before finally pleading
guilty on September 30, 2009 to two counts of dereliction of duty in
exchange for the dismissal of the murder count. He was reduced in rank
to lance corporal and sentenced to a 150-day jail sentence that was
immediately suspended as part of a plea deal. He was the only
Nelson called the outcome
a good one.
Why did this
prosecution ever happen?
Why the charges were
brought in the first place still mystifies the lawyers who defended
Nazario. There was never any corroborating physical evidence to
support the charges, McDermott says. Despite intensive records
searches during the worldwide investigation that followed no evidence
of the insurgent’s existence or deaths was ever found. The
investigation officially began on October 16, 2006 and ended on April
8, 2009. The last entry in the 2,700-plus page report merely says,
“This investigation is closed.”
Unlike the Haditha Eight debacle brought on by widely published and
largely specious claims of massacre and cover up that demanded the
episode be investigated, the alleged murders at Fallujah very quietly
opened a proverbial Pandora’s Box that apparently needed to stay
closed. Despite the certainty of the heinous initial accusations and
the corroboration of several Marines during the investigation neither
the image conscious Marine Corps or the NCIS delved any deeper than
into a single squad of Marines.
The who, when and what of the failed investigation is succinctly
explained in the NCIS summary and the why is self evident. The report
shows witness after witness refused to cooperate, making themselves
conspicuously absent, immediately seeking legal counsel, or simply
denying any knowledge of anything that supposedly happened that day.
Nazario once said the Marines had learned their lesson when they
cooperated in the Haditha investigation.
The highest ranking Marine questioned was a major that was a captain
and commanding officer of Kilo Company when the alleged “take no
prisoners” orders were made. He denied any knowledge of the event. So
did everyone else above the rank of sergeant. Ironically the NCIS
examiners had to rely almost solely on the cooperation of the Marines
they were investigating to make their case, the summary shows.
There is plenty of evidence of extreme violence at Fallujah. The ratio
of captured to dead insurgents was surprising low, one former 3/1
officer pointed out, and so was the miniscule number of insurgents
thought to have survived. Soon after the battle concluded, pacified,
nearly destroyed Fallujah became the poster child of American nation
building efforts in Iraq.
Lt. Col Jeffrey Chessani, the commanding officer of 3/1 during the
Haditha debacle, said the Iraqis were well aware of what happened at
Fallujah and wanted no part of 3/1 the next time around.
All about violence
The assertion that 3/1’s Marines were soundly trained in
counter-insurgency warfare and knew how to win the hardened hearts and
closed minds of its adversaries at Fallujah is dismissed as
unadulterated bunk by the Marines who fought there. The Thundering
Third was trying to kill the insurgents pure and simple – wipe them
out – and someone high up didn’t want the ugly truth known.
“It is not surprising,” says Puckett.
Wuterich trained with the survivors of Fallujah while preparing for
Iraq in 2005. The battalion lost 33 dead and more than half of its men
were wounded at Fallujah in 2004. The lessons they learned were
incorporated in the “how to” method 3/1 adopted to fight the
burgeoning insurgency its second time around, Puckett added.
Every Marine who was at Haditha on Nov. 19, 2005 says Wuterich
employed those lessons perfectly during the lightning counter-attack
he led when his platoon leader said “clear South” and his ad hoc fire
team executed a devastating sweep through two houses that left 12
civilians dead. The quest for supreme violence was inculcated in the
young Marines by the old warriors who ran 3/1 when it was gearing up
for the new war exploding in Iraq in 2005. It is impossible to simply
turn off the switch once their killing instincts had been switched on,
said Puckett, a Marine for twenty years.
“It has always been our contention,” he added.
One grisly detail in the summary makes Puckett’s contention abundantly
“The photographs and Mortuary Affairs documentation for the remains of
460 of 532 non-U.S. deceased recovered in Fallujah in November and
December 2004 were obtained; however, the vast majority were
unidentifiable due to injuries and/or decomposition. Of the 69
tentatively identifiable, 15 were determined to have been recovered by
3/1 Marines or from the sector of the city controlled by 3/1,” the
During the 30-month inquiry the investigation spanned the globe
looking for clues. Three different times NCIS agents, defendants and
lawyers went to Fallujah to find the alleged crime scene. It has never
been established for certain they ever found it, McDermott opined.
NCIS is reasonably sure it discovered the right house, but it
contained no evidence of previous violence except a blown safe. It
based its finding on pictures of a gate that looks “strikingly
similar” to one a demo man attached to Kilo attempted to blow up with
plastique explosive before taking a picture of his work to send to his
Mom, according to the report.
NCIS forensic experts used all kinds of devices and methods to
discover a bullet hole, a drop of blood, or a piece of overlook human
tissue that would prove the executions ever happened without success,
the report shows.
Twice the people who lived there said they had fled to Syria before
the alleged executions took place and had no knowledge of the dead
men. The third time they were questioned they said neighbors told them
bodies had been carried from their home, but they never discovered any
evidence why, the report says.
Fallujah during November 2004 was all about violence, the Marines who
survived agree. In 2005 the Thundering Third’s commander at Fallujah
proudly said his 1,200-man reinforced battalion killed at least a
thousand of the enemy. The battalion took “100 to 200 prisoners” as
well, according to the JAG officer who kept track of such things for
The Thundering Third used every weapon at its disposal; bombs,
rockets, grenades, machine guns, rifles, knives and fists to
exterminate a ruthless al Qaeda led enemy that thought beheading
civilians was great sport. Nobody knocked first to see who was inside
a barricaded house. Their calling card was something that exploded.
After they finished the enemy off the Thundering Third sometimes
ordered Israeli-made armored bulldozers to grind the flattened houses
containing their bodies into the dirt. It was that kind of war.
Nathaniel R. Helms
Defend Our Marines
5 September 2010
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam vet, journalist, combat reporter, and, most
recently, author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007)