I think that Asst. US Atty’s Behnke and Kovats need to be fired. I do not know if they are “hold overs” from the Clintons (Bush's BIGGEST mistake, trying to make nice with demo-rats) or whether they are “Johnny Suttons” looking to score political points, but these asses need to be fired.
If he was “recalled” to active service for prosecution then these “prosecutors helpers” should have shut the hell up and let the UCMJ take over!
So now, are we going to start prosecuting WWII vets from the Normandy invasion who “possibly” were involved with the execution of prisoners? We know that, according to many documentaries and other evidences, it MAY have happened. Are these two hero's of the law going to start after 86 year old Pfc. Joe Blow from Omaha or Utah beach?
These lawyers are bastards and give ALL lawyers a bad name.
Because Nazario had completed his military obligation on Oct. 11, 2005, and had no pending Reserve commitment, the Corps had no legal avenue to charge him under the Uniform Code of Military Justice. Instead, NCIS contacted the U.S. Attorney’s Office, which filed federal charges under a little-known law, the Military Extraterritorial Jurisdiction Act. A federal grand jury indicted him on two counts of voluntary manslaughter.
MEJA, which Congress approved and which took effect in 2000, extends military jurisdiction to members of the armed forces who “engage in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States.”
The government decided the law applied to Nazario’s situation.
“The killings in this case were unlawful because they violated clearly established law of war,” U.S. Attorney Thomas P. O’Brien and assistant U.S. attorneys Sheri Pym, Jerry Behnke and Charles J. Kovats wrote in a brief to the court, citing the handling and killing of detainees. Since Nazario “was not acting ‘in conformity with [the president’s] orders’ the political question doctrine is inapplicable.”
Nazario’s defense attorneys asked U.S. District Court Judge Stephen Larson in Riverside to dismiss the case on grounds that included a lack of jurisdiction and inapplicability of MEJA to combat actions. The government objected, arguing the alleged actions against “detainees [who] were unarmed” represent “a defined criminal violation.”
On April 28, the judge rejected the defense’s motion and ordered the case to trial beginning July 8.
“The express language of this statute provides federal courts with jurisdiction to hear criminal cases where, as here, the alleged crime was committed prior to discharge from the Armed Services,” Larson wrote in his ruling.
Nazario’s defense attorneys contend that MEJA doesn’t address or apply to conduct during any combat action. Such prosecutions, they warn, would subject any service member to investigation and prosecution many years after alleged combat-zone crimes. Kevin B. McDermott said a comment made by a combat veteran self-medicating himself with alcohol at a bar “15 to 20 years from now ... ends up in federal court.”
“There is no end to this war for any veterans,” said McDermott, a Tustin, Calif., attorney representing Nazario. “You are on the hook forever.”
http://www.marinecorpstimes.com/news/2008/05/marine_nazario_051208w/