With only mixed success prosecuting U.S. soldiers for alleged atrocities in Iraq, the U.S. government is now turning to a novel legal approach to try military veterans in U.S. civilian courts.
The first target is Jose L. Nazario, a former Marine named as the defendant in the case United States of America v. Jose Luis Nazario.
In August 2007, federal prosecutors filed the case in U.S. District Court in California, charging Nazario with two counts of voluntary manslaughter.
Nazario’s alleged crime is that while serving with the Marines during the November 2004 battle in Fallujah, Iraq, he shot to death two insurgent prisoners of war.
Sgt. Nazario left the military with an honorable discharge after eight years of service. The New York City native then moved to Riverside, Calif., with his family and became a police officer.
The Naval Criminal Investigative Service (NCIS) brought the charges to the U.S. attorney for Central California last summer, claiming Nazario is beyond the jurisdiction of military law.
He was charged under the Military Extraterritorial Jurisdiction Act (MEJA), a law passed by Congress in 2000 to give government prosecutors a mechanism for charging civilians and former service members for alleged criminal acts they committed while serving overseas.
Before MEJA, members of the armed forces were prosecuted under military law or not at all, and in many instances civilians who committed crimes in foreign lands were completely beyond the reach of American civilian jurisdiction.
In 1996, Congress formed the Overseas Jurisdiction Advisory Committee to investigate alternative methods of prosecuting civilians accompanying our armed forces overseas. The final legislative outcome was MEJA.
MEJA applies to two categories of people, those "employed by or accompanying” the armed forces outside the U.S. and those to whom the Uniform Code of Military Justice (UCMJ) – military law – applied at the time of the offense.
The latter group includes members of the armed forces who allegedly commit offenses while subject to the UCMJ but whose criminal acts are not discovered until after they have separated from the service. Nazario is in that category.
Travesty of Justice
Married and the father of a 2-year-old son, Nazario, now 28, was accused by another Marine who twice confessed he had participated in killing four prisoners captured in the opening hours of the Fallujah battle. Nazario is charged with personally shooting two of the prisoners.
Based on that Marine’s testimony, several partially corroborating statements, and very little else, the U.S. government decided to take the almost unprecedented step of prosecuting Nazario.
The criminal complaint filed in the District Court acknowledges that Nazario acted “in the heat of passion caused by adequate provocation.”
The complaint includes testimony that Nazario’s unit came under fire from a house, and that after the fire was suppressed, the Marines searched the house and encountered four men. They also found AK-47 rifles and ammunition. That testimony also alleges that Nazario was told by an “unknown Marine” over the radio to shoot the four prisoners.
California-based Kevin B. McDermott, Nazario’s attorney, called his prosecution a “travesty of justice.”
McDermott, a former Marine lawyer and longtime foe of Marine Corps prosecutors, said Nazario’s defense may be difficult.
He notes that civilian juries may view soldiers like Nazario as they would police officers and apply high standards, without an understanding of what a soldier might do under battlefield conditions.
He argues that Marines’ cases during a court-martial, for example, are heard by other military personnel, who likely have served in combat and have faced similar battlefield conditions.
McDermott says he is disturbed by the government’s “unlimited venom.”
Last year he successfully defended Capt. Lucas M. McConnell, the company commander relieved of duty and charged with dereliction and other crimes in the Haditha incident.
So far, of the eight Marines charged with crimes relating to the November 2005 incident that killed Iraqi civilians in Haditha, five have been cleared and three still face charges.
McDermott suggested that Nazario may be the convenient fall guy for atrocities the government can’t pursue.
“The U.S. government spent a lot of time listening to the Blackwater debacle, but that is untouchable under the current law,” McDermott said. “Jose is being charged with voluntary manslaughter for an incident the government can’t prove ever happened.”
Blackwater USA is a private security firm operating in Iraq and Afghanistan with powerful political and personnel ties to the Bush administration. It has been awarded more than $1 billion in contracts since 2002.
On Sept. 16, 2007, Blackwater guards allegedly shot and killed 17 Iraqi civilians in Nisour Square, Baghdad, while escorting a convoy of U.S. State Department vehicles. No one has been prosecuted.
“They cannot be charged because they are contractors and not subject to MEJA,” McDermott explained. “But a Marine sergeant operating under orders can be. It is absurd.”
The Battle of Fallujah
The Fallujah incident purportedly occurred on Nov. 9, 2004, during the first day of the Marines’ savage monthlong fight for control of the vital crossroads city.
Nazario was then a squad leader in 3rd Platoon, Kilo Company, 3rd Battalion, 1st Marine regiment.
The Marines’ no-quarter assault on the ancient “City of Mosques” in the Sunni Triangle west of Baghdad cost at least 3,000 Iraqi lives and destroyed more than 160,000 structures.
All told, the U.S. reportedly suffered approximately 150 fatalities in the fierce engagement, with more than 2,000 wounded. Nazario’s battalion alone suffered 33 dead and more than 600 wounded.
Two other Marine enlisted men, Sgt. Jermaine Nelson and Sgt. Ryan Weemer, have been arrested and charged under military law with murder and dereliction of duty in the Fallujah incident.
Weemer was shot three times at Fallujah and honorably discharged from active duty more than two years ago.
The fighting at Fallujah entailed relentless room-to-room, house-to-house combat. Weemer shot one insurgent so close that he watched the man die in the flames of his burning beard, Weemer said.
Marines estimated the daily enemy body count by the long, narrow ditch the insurgent dead were buried in at the end of each day. The dark slash across the so-called Jolan Park District eventually cut a swath in the dun-colored earth visible from 5,000 feet in the air.
Nazario’s combat experience at Fallujah was the culmination of eight years of hard slogging that included surviving two tours in Iraq. When Nazario completed his military obligation he took an honorable discharge to join the Riverside police force.
He now lives in upstate New York. His house in Riverside is collateral for the $50,000 property bond he posted to remain free until his trial date, most likely in July.
Meanwhile Nazario and his son live off his wife’s meager earnings.
“It’s not great, but it’s OK,” the soft-spoken Marine veteran said. “After I get found innocent we can go back to California and I will get my job back.”
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