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Exclusive Look Inside the

Fallujah Investigation

Declassified NCIS Report Raises

More Questions Than It Answers

by Nathaniel R. Helms | 4 September 2010 | Read the NCIS report at the link.

 

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 and furious.

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 duty.

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 gets killed

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 defense.

“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 squad level.

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 enterprise failed.

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 panel.

"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 defendant punished.

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 clear.

“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 summary notes.

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 3/1.

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.


 

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Nathaniel R. Helms
Defend Our Marines
5 September 20
10

 

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)

© Nathaniel R. Helms 2010

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