Second Marine charged in Fallujah detainee deaths

North County Times ^ | August 20, 2007 | MARK WALKER

[rightalien]

CAMP PENDLETON ---- The Marine Corps announced Monday it has charged a sergeant with unpremeditated murder for the killing of an Iraqi detainee in Fallujah in 2004.

Sgt. Jermaine A. Nelson is the second person charged in the case in which four detainees were killed. The incident was first reported in the North County Times in late June.

A Marine Corps spokesman stressed that Nelson is considered innocent until findings show otherwise, adding that leadership at Camp Pendleton is committed to fully investigating alleged acts of wrongdoing in Iraq.

"Our message is to tell the citizens of the United States and the citizens of Iraq that we will fully investigate these matters and hold our own people accountable," Lt. Col. Chris Hughes said. "But we also stress that this Marine is innocent until proven guilty."

Although Nelson was charged last week, the Marine Corps did not announce the action until Monday for reasons that were not immediately clear.

Last week, the Los Angeles U.S. attorney's office filed a voluntary manslaughter charge against a former member of the same unit Nelson is from, alleging that Jose L. Nazario Jr. shot and killed two of the detainees.

After his appearance in U.S. District Court in Riverside, the 27-year-old Nazario maintained his innocence.

"I would just like to say that I am a U.S. Marine who fought for his country and I am innocent of these charges," he told reporters.

Nazario was a sergeant when he led a platoon of Camp Pendleton troops under investigation for the slaying of four Iraqi detainees on Nov. 9, 2004.

A criminal complaint included in charging documents filed against Nazario alleges he shot two detainees "in heat of passion caused by adequate provocation unlawfully and intentionally killed two unarmed male human beings."

The complaint includes an affidavit from Naval Criminal Investigative Service Special Agent Mark Fox, who wrote that Nazario and other Marines from Camp Pendleton's 3rd Platoon, Kilo Company from the base's 3rd Battalion, 1st Marine Regiment detained the insurgents during a house search.

The document contends that Nazario shot the two in the head at close range and that he directed other Marines to shoot two other Iraqis.

"Who else wants to kill these guys, because I don't want to do it all myself?" Nazario is quoted in the Fox affidavit as saying to his Marines.

The affidavit also states that Nazario told an unidentified Marine that the squad needed "to take care of them" so the unit could complete its assignment of moving to the center of the city, according to the affidavit.

A probe into the incident launched several months ago also is targeting one other former Marine as well as another man still in the service, according to a source with intimate knowledge of the investigation.

Nazario, who is free on a $50,000 property bond, is being prosecuted in federal court because he no longer is in the service and therefore the military does not have legal jurisdiction.

The fight for Fallujah was one of the major battles of the Iraq war.

On Nov. 6, 2004, a main group of troops from Camp Pendleton's 3rd Battalion, 1st and 5th Marine Regiments, along with supporting Marine units and U.S. Army forces, launched an assault to wrest control of the city from insurgents.

Intense fighting took place during the next week, with the final resistance cleared by late December. Several Camp Pendleton Marines were later honored with awards, including two Navy Cross citations for valorous actions during the fighting.

Ninety-five U.S. service members were killed and more than 600 were wounded. An estimated 1,350 insurgents were killed and 1,000 captured.

The rules of engagement were loosened during the battle because U.S. and Iraqi authorities had spent a week telling residents to leave and dropping leaflets over the city warning that a battle was coming.

Despite that, the law of armed conflict that governs the military forbids the shooting of any enemy combatant who has been disarmed and does not pose a threat.

See Tuesday's North County Times for more on the latest developments in the case.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

[jazusamo]

Lt. Col. Chris Hughes said. "But we also stress that this Marine is innocent until proven guilty."

Undoubtedly said for the benefit of Fat Jack Murtha.

[RedRover]

Sgt. Jermaine A. Nelson must still be on active service if the Corps is bringing charges. So some Marines will be tried under the UCMJ while others are tried in civilian court for the same incident. That'll get interesting.

Previous thread here: Marine arraigned today in killing of Iraqi prisoners [Jose Nazario / Fallujah].

[Girlene]

Our message is to tell the citizens of the United States and the citizens of Iraq that we will fully investigate these matters and hold our own people accountable," Lt. Col. Chris Hughes said.

That's all fine and dandy. I wonder if Lt. Col. Hughes realizes the message he is sending to the Marines, though. I wish a reporter would ask him that question.

[RedRover]

And who the heck is Lt. Col. Hughes and who appointed him as the messenger to the citizens of the United States and Iraq?

[RedRover]

So far, nothing is on the USMC Iraq Investigations site.

[lilycicero]

You don’t have to be a reporter to ask Lt. Col. Hughes.
Go ahead, call him up.

[xzins]

They use a couple of expressions in the charges that we should focus upon:

Unpremediated.

WITH adequate provocation.

That sounds like, “These marines did not plan to kill anyone, and the situation was such that the average person would have done the same given the threat AGAINST THEM in the situation, but we’re charging them anyway, because that’s the way the law is written.”

I’m no lawyer. Maybe I’m just a lousy reader, but it sounds to me like those lines could also be in an awards citation.

[Girlene]

Good point, xzin, but this is all I see for Sgt. Jermaine Nelson.

The Marine Corps announced Monday it has charged a sergeant with unpremeditated murder for the killing of an Iraqi detainee in Fallujah in 2004.

Sgt. Nelson is charged under the UCMJ because he's still active, Jose Nazario is charged under civilian federal court. If you read the affadavit presented by NCIS agent Fox, it sounds like PREmeditated. I'm wondering if the JAG prosecutors are only charging UNpremeditated because they know their case is weak. They may think they can't meet the bar for PREmeditated.

[RedRover]

Word was that the Corps wasn’t interested in prosecuting Marines for Fallujah...until NCIS found a civilian DA who would bring charges against Nazario.

Wonder how much these new charges were pushed from outside the Corps.

[Girlene]

Whoops, meant to ping you also, jude.

[RedRover]

I hope there’ll be more in tomorrow’s NC Times.

By the way, I notice there’s a whole new group of people adding comments to NCTimes stories these days. It’s all rabidly anti-Marine/Mattis/P8 at the moment.

[xzins]

Another point for Fallujah and this article is the line:

“Rules of engagement were loosened for Fallujah...”

Sounds like a free-fire killing zone.

Would Nazario be better served before a military court-martial? If so, can he request that along with reactivation for purposes of these charges?

[yield 2 the right]

So it looks like a very few “bad” ones are making it look like the rest of the “good” US troops do this often, innocent until proven guilty....

[Dick Vomer]

I wonder if Lt. Col. Hughes realizes the message he is sending to the Marines, though. I wish a reporter would ask him that question.

After reading this....tell me how many unpremeditated deaths occurred.... I'm sure one or two of the Japs were wounded and tried to give up...or were running around his flank and not at him...so could have been interpreted as "running away" and therefore just an innocent Jap trying to surrender...

Oh that's right, they were mounting suicide attacks and dismembering prisoners and thinking Americans were weak and couldn't stomach a fight to the death...

Read the citation as follow and see what all the libs hate about the Marine Corps.

Day, James L.

"For conspicuous gallantry and intrepidity at the risk of his life above and beyond the call of duty as a squad leader serving with the Second Battalion, Twenty-Second Marines, Sixth Marine Division, in sustained combat operations against Japanese forces on Okinawa, Ryukya Islands from 14 to 17 May 1945.

On the first day, Corporal Day rallied his squad and the remnants of another unit and led them to a critical position forward of the front lines of Sugar Loaf Hill. Soon thereafter, they came under an intense mortar and artillery barrage that was quickly followed by a ferocious ground attack by some forty Japanese soldiers. Despite the loss of one-half of his men, Corporal Day remained at the forefront, shouting encouragement, hurling hand grenades, and directing deadly fire, thereby repelling the determined enemy. Reinforced by six men, he led his squad in repelling three fierce night attacks but suffered five additional Marines killed and one wounded, whom he assisted to safety.

Upon hearing nearby calls for corpsman assistance, Corporal Day braved heavy enemy fire to escort four seriously wounded Marines, one at a time, to safety. Corporal Day then manned a light machine gun, assisted by a wounded Marine, and halted another night attack. In the ferocious action, his machine gun was destroyed, and he suffered multiple white phosphorous and fragmentation wounds. He reorganized his defensive position in time to halt a fifth enemy attack with devastating small arms fire. On three separated occasions, Japanese soldiers closed to within a few feet of his foxhole, but were killed by Corporal Day.

During the second day, the enemy conducted numerous unsuccessful swarming attacks against his exposed position. When the attacks momentarily subsided, over 70 enemy dead were counted around his position. On the third day, a wounded and exhausted Corporal Day repulsed the enemy's final attack, killing a dozen enemy soldiers at close range. Having yielded no ground and with more than 100 enemy dead around his position, Corporal Day preserved the lives of his fellow Marines and made a significant contribution to the success of the Okinawa campaign.

By his extraordinary heroism, repeated acts of valor, and quintessential battlefield leadership, Corporal Day inspired the efforts of his outnumbered Marines to defeat a much larger enemy force, reflecting great credit upon himself and upholding the highest traditions of the Marine Corps and the United States Naval Service."

[RedRover]

Yes, I think he’d be a lot better served. For starters, I don’t trust a civilian jury in LA County to sit dispassionately and weigh the evidence with calm deliberation in search of the truth.

A civilian jury of Angeleanos will be interested in one thing: putting the war on trial and sending a message to the world.

Also, as a practical matter, a defense in a civilian court will end up costing Nazario a lot more than if it were in a court martial. And, as you know, money does matter.

The only brightside is that a civilian jury should be a LOT less forgiving of NCIS and their illegal tactics of fabricating evidence than would a military jury.

[Girlene]

When these “alleged” shootings occurred, supposedly the ROE’s were such that these “alleged” killings were unlawful. A couple of days later the ROE’s were loosened to, as you say, pretty much sound like a “free-fire zone”. By the end of the battle, it “sounded” like most MAM’s were fair game. IOW, the leadership realized they needed to loosen the ROE to win the battle and prevent more Marine deaths.

So, if these guys “allegedely did what is claimed, it was a matter of timing in the battle on whether it was considered lawful or unlawful. Two or three days later, this same “alleged” incident would likely have been A-OK.

[RedRover]

If anyone has Bing West’s book on Fallujah, check out “Nelson” in the index.

Scuttlebutt is pretty negative. (I have a copy and can check later.)

[Girlene]

That is a heroic man, thanks for sharing that citation.

[jude24]

"Unpredmediated with adequate provaction" means it was done in the heat of the moment, with the sort of provocation that would make a reasonable person lash back.

It would be a "provoked" manslaughter in the civilian world.