Posted on 04/22/2008 2:57:39 PM PDT by RedRover
April 21, 2008, Riverside, California--The defense team representing Marine infantryman Jose Luis Nazario asked a federal court judge Monday to dismiss voluntary manslaughter charges against their client for allegedly killing two Iraqi insurgents in Fallujah, Iraq more than three years ago. At the time Nazario was a squad leader engaged in desperate house-to-house combat.
The decorated Marine veteran was assigned to 3rd Platoon, Kilo Company, 3rd Battalion, 1st Marines when the incident allegedly occurred. A year later four enlisted members of the same platoon would be charged with murder and other war crimes in the unrelated “Haditha Massacre” incident.
Government prosecutors allege the unknown dead men were insurgent soldiers caught with their weapons on November 9, 2004, the opening day of the battle for Fallujah.
But even that is not certain, Nazario’s defense lawyers argue.
There are no bodies, no names, no grieving relatives, no civilian witnesses, no crime scene, and no physical evidence. Last year the government sent investigators to the house in Fallujah where they thought the crime occurred, but the people who lived there said they knew nothing about it.
They told the government investigators they were in Syria when the alleged killings occurred, said Kevin D. McDermott, Nazario’s lead counsel.
“When they came home everything was fine. There was no blood, no damage, no destruction, nothing to indicate anything had happened in their home,” McDermott said.
Without mentioning the paucity of evidence, McDermott argued that the US District Court has no jurisdiction in Nazario’s case because decisions made in combat are outside the jurisdiction of federal courts, he said.
McDermott argued before US District Judge Stephen G. Larson that the actions “giving rise to the charges against Sgt. Nazario occurred during intense combat operations, including almost three weeks of house-to-house fighting meant to remove insurgents from the city of Fallujah.”
“Every decision, every charge, therefore, must be examined against the backdrop of battle. The decisions whether and under what circumstances to employ military force are constitutionally reserved for the executive and legislative branches,” McDermott said in his motion to dismiss the charges.
“The government simply has no reason to be involved in this case,” McDermott added. “The courts have decided over and over that decisions made in combat cannot be second-guessed in court rooms. This kind of thing sends a terrible message to our combat troops who must make split-second decisions to save their lives.”
For the prosecution
Nazario, now a civilian without any military obligation, was charged under the Military Extraterritorial Extradition 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.
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. Nazario is in that category of alleged offenders.
Assistant US Attorneys Jerry A. Behnke and Charles J. Kovats represented the government in Nazario’s motion hearing. They argued that MEJA is specifically tailored to prosecute former service members who allegedly committed crimes while serving in combat.
“On its face, MEJA clearly applies to the instant matter,” they told Judger Larson in their motion in opposition to Nazario’s request to dismiss the charges. To bolster its case the government went all the way back to Marbury v. Madison, a famous Supreme Court separation of powers case heard in 1803 that is familiar to every student whoever took a course in Constitutional law in college.
In that precedent setting case, Chief Justice John Marshall wrote: “The President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers who act by his authority, and in conformity with his orders.”
“These separation of powers principals are not implicated where, as here, the executive branch has brought the issue to the Court by filing criminal charges under clearly defined criminal statutes and any political policies or questions at issue rest with the executive [branch]. The killings in this case were unlawful because they violated clearly established law of war,” the government prosecutors said.
Nazario, now 28, is scheduled to go on trial in US District Court in Riverside, California on July 7, 2008 if the motion to dismiss fails. He was a probationary patrolman on the Riverside, Calif. Police Department when he was arrested on August 7, 2007. Nine days later he was indicted by a civilian Grand Jury hearing the meager evidence.
Attack on Fallujah
For more than a month before the November, 2004 attack on Fallujah began the residents of the city were warned by various means to leave or be treated as insurgents. In the week preceding the attack Marine Corps and Army psychological warfare teams showered the city with leaflets warning the 30,000 or so Iraqis still believed to be in the city of 260,000 to leave.
On November 4, 2004 Iraqi interim Prime Minister Iyad Allawi warned them that, “The window is really closing for a peaceful settlement. The Fallujah people, most of them, have left Fallujah, and the insurgents and the terrorists are still operating there. We hope they will come to their senses. Otherwise, we will have to bring them to face justice.”
To emphasis Allawi’s warning American airstrikes began on November 7 to “shape the battlefield” by destroying suspected enemy strong points and supply depots inside the fortified city. On November 8, Marine Corps and Army artillery and mortar batteries began pounding the city whole sale.
Phosphorous rounds fired from the Amy’s massive 120mm “Mad Mortars” fell like red rain, said Marine Sgt R. J. Mitchell, who would earn the Navy Cross five days later.
Meanwhile the Marine Corps was mentally preparing its troops for the impending attack.
Lt Col Willard Buhl, the commanding officer of 3rd Battalion, 1st Marines held a “Ben Hur Day” rally two days before the attack began to incite his men to be aggressive. Chariot races, inspirational speeches and squad, platoon and company pep talks were given to the men by Buhl, his company commanders and senior non-commissioned officers.
Just before the attack was to commence in the false dawn of November 9 3/1’s Marines were told “to kill anything that moved,” dozens of them later reported. No quarter was offered and none was expected. It was a fight to the death and everyone who fought there understood it, Nazario said.
Bringing charges
Naval Criminal Investigative Service Special Agent Mark Fox brought the complaint to Thomas P. O’Brian, the US Attorney for Central California on early August, 2007. He handed the case of to Sheri Pym, the Chief of the Riverside branch of the US District Court.
In an August 7, 2007 affidavit supporting the complaint Fox charged that Nazario shot the two unidentified men during the opening phase of the month-long battle after receiving an order over his radio to do so. The basis of his complaint are two partially corroborated statements from Sgt Jermaine Nelson, at the time of the alleged incident a corporal and weapons specialist attached to Nazario’s squad for the Fallujah assault.
The two prisoners he is accused of killing were among four insurgents Nelson said his squad captured and subsequently killed, Fox alleged in his complaint. The men were captured moments after a member of Nazario’s squad was shot and killed in the vicinity of the alleged crime scene.
Nazario is accused of telling an unidentified Marine that the squad needed “to take care of them” so the unit could continue its mission, according to the Fox affidavit.
Fox stated that Nazario shot two detainees execution-style and directed other Marines to shoot the two remaining prisoners. Nazario allegedly told his squad that he had been asked during the radio transmission if the Iraqis were dead and indicated to his Marines that the squad had to move on, according to the affidavit.
“We can't be here all day,” he allegedly said. “You know what has to be done.”
Fox brought the complaint to the US Attorney after obtaining two confessions from Nelson, who twice confessed to Fox after waiving legal counsel that he participated in the killings on Nazario’s orders, evidence introduced last month at his Article 32 investigation showed..
According to Nelson the incident occurred within hours of the Marines in Nazario’s squad crossed the line of departure on November 9, 2004 to recapture Fallujah from an Al Qaeda-led army occupying the ancient city.
Nelson was charged December 7, 2007 with voluntary murder and dereliction of duty for failing to follow the rules of engagement and the laws of war regarding the handling of detained prisoners of war.
The 26-year old infantry assaultman is also charged with dereliction of duty. Currently Nelson is on active duty at Camp Pendleton pending a general court-martial. He faces a possible life prison sentence if convicted.
At Nelson’s half-day evidentiary hearing at Camp Pendleton on March 28, prosecutors played recordings of the confessions Nelson gave Fox in the spring of 2006. It is the only evidence they presented.
In the confessions Nelson told Fox that Nazario received an order over his radio to kill the prisoners and then ordered Nelson and a corporal named Ryan Weemer to assist him. Nelson claims that Nazario shot two of the prisoners in the head, he shot the third, and Weemer gunned down the fourth man with his pistol.
Weemer, now a sergeant, was recalled to active duty at Camp Pendleton from the inactive reserves and charged with murder and dereliction of duty on March 18. His Article 32 investigation to determine if there is enough evidence to court-martial him is still pending, a Marine spokesman said last week.
Weemer brought about the investigation two years ago when he revealed to Secret Service investigators that he “witnessed” a “wrongful death” during a polygraph examination for a uniformed Secret Service job, he said. Soon after revealing the circumstances to investigators the NCIS initiated a formal investigation.
For the defense
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.
Today, Nazario was up early after a fitful night of sleep. While he is optimistic that he will eventually prevail, he is not entirely convinced the judge will simply dismiss his case without a trial.
“They tell me it will be dismissed, but I will wait and see. It has been almost a year since all this started and my wife and son and I don’t get as upset or excited as when it first started,” the soft-spoken native New Yorker said from his temporary digs in California. “I have one more motion hearing in June if this doesn’t happen and then I will stay out here until the trial is over. In the end we will win and I will get my job back –I got good attorneys and this stuff never happened. I would just like to get it over, the sooner the better.”
Awaiting a decision
The decision should be out next week, McDermott said at the conclusion of today's 90-minute motion hearing. He said he was "optimistic" that the court would find in his client's favor.
"The court recognizes there is no precedent for this," McDermott explained. "The court will proceed carefully because of the unique nature of Jose's circumstances. It is important that everything offered here today is examined carefully."
“no bodies, no names, no grieving relatives, no civilian witnesses, no crime scene, and no physical evidence”
Guilty!/sarc
Hard to believe that charges were brought. Hope the judge will see reason and toss out the case.
Nazario was a Drill Instructor. Do you know if that was before or after the battle at Fallujah?
Exactly, this whole thing really stinks!
What in the H is a federal Civilian Court doing in military Combat in a foreign country?
The federal anti-American Prosecutor should be fired immediately.
Mad as hell!WTF over.
Another crap law passed by the know nothings in Congress. With laws like this, who the hell would want to volunteer for the Armed Services anymore.
We won't be happy until our ability to use the armed forces grinds to a halt under the weight of litigation SNAFUs like this.
I don’t know but will find out.
One ugly little word says it all: Fallujah.
Look it up judge.
Aye.
How did this bill (Senate version PDF) House Version PDF) The House version of the bill, the provisions of which are what made it into law, was sponsored by Rep. Saxby Chamblis (R GA-8, now R Senator from GA) with cosponsor Bill McCollum (R FL-8, Now FL Attorney General) It passed the House by a voice vote, thus no record of who voted for it. In the Senate there was a companion bill sponsored by Senator Jeff Sessions (R AL) with cosponsors Mike Dewine (R OH), Zell Miller (D GA (DINO) and Bob Smith (R/I NH). However without doing a side by side comparison, I don't know how it differed from the final bill passed by the Senate, which had the language of the House bill substituted for the original Senate language. That version, with the House language passed "without objection", so again no record of the vote.
Really Lame Duck Billy Jeff (D Ark now Harlem NY) signed the measure on Nov. 22, 2000, after Al Gore lost the 2000 election, but before the Flim Flam in Florida and the Supreme Court's slapping down of that.
So a nice bipartisan screwing of US Servicemen serving in a war zone.
To be fair, I don't think the Congress had actions committed during combat operations in mind when they passed this law. More like crimes committed by troops, DoD Civilians and DoD contractors "in garrison" such as in Korea, Japan, England and Germany at that time.
The law doesn't mention "combat" only "serving outside the United States".
If McCain somehow manages to dodge all the minefields and gets elected President, his first act should be to fire these Assistant US Attorneys peckerwoods.
His next act, now, should be to introduce legislation to amend the law to exclude actions committed during combat or in a combat zone, from trial in Civilian courts. And to make all trials of former service members be conducted in Military Courts, not civilian courts. People can always be recalled to active duty for trial.
“Nazario, now a civilian without any military obligation, was charged under the Military Extraterritorial Extradition 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.”
Now a bunch of ambulance chasers have set themselves up as a full time Nuremburg tribunal ! Is there any statute of limitations on soldiers getting back from a war? How many other MEJA’s are waiting in the bushes?
Nat tells me that he was a shooting instructor after Fallujah at Camp Pendleton.
Just what the hell is the JAG trying to prove. I’ll bet you if all these alleged charges against now so many soldiers and Marines where given intense and fair coverage by the L/MSM, none of these cases would have been pursued.
No statue of limitations on murder. Any Iraq or Afghanistan vet could be charged anytime. At least one other case is brewing and charges may be coming soon.
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