Marine Federal Prosecution
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Ex-Marine decries prosecution in civilian court
A former Marine sergeant facing the first federal civilian prosecution of a military member accused of a war crime says there is much more at stake than his claim of innocence on charges that he killed unarmed detainees in Fallujah, Iraq.
In the view of Jose Luis Nazario Jr., U.S. troops may begin to question whether they will be prosecuted by civilians for doing what their military superiors taught them to do in battle.
Nazario is the first military service member who has completed his duty to be brought to trial under a law that allows the government to prosecute defense contractors, military dependents and those no longer in the military who commit crimes outside the United States.
"They train us, and they expect us to rely back on that training. Then when we use that training, they prosecute us for it?" Nazario said during an interview Saturday with The Associated Press.
"I didn't do anything wrong. I don't think I should be the first tried like this," said Nazario, whose trial begins Tuesday in Riverside, east of Los Angeles.
If Nazario, 28, is convicted of voluntary manslaughter, some predict damaging consequences on the battlefield.
"This boils down to one thing in my mind: Are we going to allow civilian juries to Monday-morning-quarterback military decisions?" said Nazario's attorney, Kevin McDermott.
Others say the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.
Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, says it has little to do with questioning military decisions and everything to do with whether a service member committed a crime.
"From a legal point of view, there is no difference in law between war and peace," he said.
The Military Extraterritorial Jurisdiction Act law was written in 2000 and amended in 2004 primarily to prosecute civilian contractors who commit crimes while working for the U.S. overseas. One of the authors contends prosecuting former military personnel was "not the motivation."
"I don't fault the Department of Justice for using what legal authority they have if a clear criminal act has been committed. But I do think that it would be preferable for crimes committed on active duty be prosecuted by court martial rather than in civilian courts," said Sen. Jeff Sessions, R-Ala.
"I think maybe what it says is we need to rethink the question of military personnel who are subject to prosecution."
Telephone messages for a spokesman in the U.S. attorney's office in Los Angeles seeking comment were not returned.
Nazario, of Riverside, is charged with one count of voluntary manslaughter on suspicion of killing or causing others to kill four unarmed detainees in November 2004 in Fallujah, during some of the fiercest fighting of the war. He also faces one count of assault with a deadly weapon and one count of discharging a firearm during a crime of violence.
If convicted of all charges, he could face more than 10 years in prison.
The case came to light in 2006, when Nazario's former squadmate, Sgt. Ryan Weemer, volunteered details to a U.S. Secret Service job interviewer during a lie-detector screening that included a question about the most serious crime he ever committed. Weemer was ordered this month to stand trial in military court on charges of unpremeditated murder and dereliction of duty in the killing of an unarmed detainee in Fallujah. He has pleaded not guilty.
According to a Naval Criminal Investigative Service criminal complaint, several Marines allege Nazario shot two Iraqi men who had been detained while his squad searched a house. The complaint claims four Iraqi men were killed during the action.
The complaint states the squad had been taking fire from the house. After the troops entered the building and captured the insurgents, Nazario placed a call on his radio.
"Nazario said that he was asked, 'Are they dead yet?'" the complaint states. When Nazario responded that that the captives were still alive, he was allegedly told by the Marine on the radio to "make it happen."
Nazario later received the Navy-Marine Corps Commendation Medal with a 'V' for valor for combat and leadership in Fallujah.
Though Nazario and his attorneys declined to discuss the facts of the case with the AP, the former Marine has always maintained his innocence.
After leaving the military, Nazario worked as an officer with the Riverside Police Department and was close to completing his one-year probation. He said he knew nothing of the investigation until he was arrested Aug. 7, 2007, after being called into the watch commander's office to sign a performance review.
He said he was leaning forward to sign when he was grabbed from behind by his fellow officers, told he had been charged with a war crime and was turned over to Navy investigators waiting in a nearby room. Because he had not completed probation, the police department fired him.
Since then, he said, has been unable to find work.
"You're supposed to be innocent until proven guilty," he said. "I've put in applications everywhere for everything. But nobody wants to hire you if you have been indicted."
Without income, Nazario said, he has been forced to move in with his parents in New York. He and his wife resorted to selling some of their household goods, such as electronics equipment, to a pawn shop.
His wife, once a stay-at-home mother to their 2-year-old son, has gone to work as a customer service receptionist, he said. She will be unable to attend his trial.
"She has to work. We need the money," he said, his eyes reddening as he blinked away tears.
Nazario said he has no regrets about being a Marine, only regrets about what has happened since.
"My faith in the system is shaken. There's no doubt about that," he said.
One of Nazario's defense attorneys, Doug Applegate, said he believes that ultimately the former Marine will be acquitted because of lack of evidence.
"There are no bodies, no forensic evidence, no crime scene and no identities," he said.
It is unclear what, if anything, Marines being subpoenaed to testify will say about the events in the house in Fallujah.
Another Marine, Sgt. Jermaine Nelson, 26, of New York is slated to be court-martialed in December on charges of unpremeditated murder and dereliction of duty for his role in the deaths.
Although he has not entered a plea in military court, Nelson's attorney has said his client is innocent.
Nelson and Weemer were jailed in June for contempt of court for refusing to testify against Nazario before a federal grand jury believed to be investigating the case. Both were released July 3 and returned to Camp Pendleton.
Chelsea J. Carter covers military affairs in Southern California. Associated
Press writer Ben Evans in Washington contributed to this report.
Federal trial begins for ex-Marine in Fallujah case
By Steve Liewer
12:25 p.m. August 21, 2008
RIVERSIDE – Prosecutors and defense attorneys jostled Thursday to present their contrasting descriptions of former Camp Pendleton Marine Jose Nazario, who is accused of shooting two unarmed captives and urging his men to kill two others.
Nazario, who left the Marine Corps three years ago, is the first former service member to be prosecuted in civilian court for an incident that took place during military service.
The trial is taking place in U.S. District Court in Riverside, where he was working as a probationary police officer at the time of his arrest.
In opening remarks, Assistant U.S. Attorney Charles Kovats contended that Nazario led his squad in killing “unarmed, submissive, docile” prisoners during battle Nov. 9, 2004, in Fallujah, Iraq.
He said Nazario violated the Marine Corps' clearly defined rules for handling detainees when he and two other Marines killed the four captives during their house-to-house search in Fallujah.
“The defendant didn't show courage, honor and commitment that day,” Kovats said. “Being a Marine means doing the right thing, even if it's the hard thing. That's what separates us from the other guys.”
Nazario has denied shooting any prisoners. Besides, his lawyers argued Thursday, the intense fighting in Fallujah forced the Marines to “toss out” their prior rules of engagement.
“The overwhelming majority of those left were people who were spoiling for a fight,” said attorney Kevin McDermott, a former Marine. “The insurgents didn't play fair. They didn't follow the rules.”
Nazario is charged with voluntary manslaughter, assault with a deadly weapon and discharge of a firearm during a crime of violence. Conviction on all those charges could land him in prison for more than 10 years.
Two members of Nazario's squad – Sgts. Ryan Weemer and Jermaine Nelson – are scheduled for courts-martial later this year at Camp Pendleton on similar charges.
On Thursday, U.S. District Judge Stephen Larson ordered Weemer and Nelson to appear in court Friday morning to testify about Nazario's conduct during the alleged incident. A few months ago, Weemer and Nelson went to jail rather than obey a judge's order to testify before a grand jury in Nazario's case.
Larson also granted a defense motion to suppress a taped statement in which Weemer said he, Nelson and Nazario killed the detainees.
The audiotape came from a 2006 job interview that Weemer had with the U.S. Secret Service. During the session, he underwent a lie-detector test and was asked about the worst crime he had ever committed. His response marked the first time the Fallujah killings were revealed.
Weemer said he and other Marines from the 3rd Battalion, 1st Marine Regiment were fighting their way through Fallujah when they discovered four men in a barricaded house containing weapons. He recalled that they didn't have enough time to bring the captives to jail.
“We called the platoon leader and the response was, 'Are they dead yet?' ” he said on the tape.
Weemer said Nazario and other Marines interpreted the question as an order to kill the detainees, so they did.
“We argued about it, but we had to move, we had to get out, our unit is moving down the street.. . . I did one guy,” Weemer said on the tape.
“If we let anyone go,” he added, “they were going to run down the street and grab an (assault rifle) because they had them stashed.”
Weemer then said there were “plenty of incidents” in which Marines killedIraqis in similar fashion.
The military also has a taped statement in which Nelson said his squad shot the captives to death.
Nelson gave his account during an interview with an agent from the Naval Criminal Investigative Service. He said he watched Nazario become angry after finding assault rifles in the house, even though the detainees had insisted there were no weapons.
On the tape, Nelson recalled Nazario shooting a kneeling captive at point-blank range, then saying: “I'm not doing all this by myself. You're doing one and Weemer is doing one.”
Weemer then pulled his 9mm sidearm and killed one of the detainees, Nelson said.
“He shot him and the dude was on the ground and rolling and (Weemer) was shooting, shooting, shooting, shooting, shooting,” Nelson told the naval investigator.
Afterward, Nelson said, he joined in and shot another detainee.
2 Marines refuse to testify in ex-comrade's case
RIVERSIDE, Calif. (AP) — A judge found two Marines in contempt of court Friday for refusing to testify against a former squad leader accused of killing unarmed detainees in Iraq, but he rejected the prosecution's pleas to throw the men in jail immediately.
U.S. District Judge Stephen Larson instead ordered Sgt. Ryan Weemer and Sgt. Jermaine Nelson to return to court in 30 days to begin proceedings on the contempt charges.
The men invoked their Fifth Amendment rights against self-incrimination after being called to testify in the civilian trial of former Marine Jose Luis Nazario Jr. The two face military charges of their own over the Nov. 9, 2004, shootings in Fallujah during some of the fiercest fighting of the Iraq war.
Weemer and Nelson could have been the trial's most important witnesses. Other Marines are scheduled to testify about events that day, but unlike Weemer and Nelson, prosecutors do not allege that Nazario ordered those witnesses to shoot detainees.
Larson said before ruling on the contempt issue that he did not believe jailing the men would compel them to testify. "My suspicion is considering what these men have been through, there is probably not a whole lot in this world they do fear," he said.
Several Marines allege Nazario shot two Iraqi men who had been detained while his squad searched a house, according to a Naval Criminal Investigative Service criminal complaint. The complaint claims four Iraqi men were killed during the action.
The case came to light in 2006 when Weemer volunteered details to a U.S. Secret Service job interviewer during a lie-detector screening that included a question about the most serious crime he ever committed. Larson has ruled that the interview cannot be presented as evidence.
When prosecutor Jerry Behnke asked Nelson whether Nazario ordered him to shoot and kill a detainee, he responded, "Sir, at this time, I'd like to plead the Fifth Amendment."
Larson asked if there was any condition under which he would testify. Nelson told him "no."
It was nearly identical testimony when Weemer took the stand.
The proceedings became so contentious that Larson at one point asked if the two Marines were perpetuating "a charade." Nelson's attorney, Joseph Low, said he objected to that characterization.
Weemer and Nelson have been granted immunity in the federal case and told that their testimony would not be used against them in their own military cases. Their attorneys, however, do not believe their testimony would be withheld from their upcoming courts-martial.
Behnke pleaded with the judge to jail both Marines immediately.
"The government is extremely concerned about the fraud that is being put before the jury," Behnke said.
Larson declined to jail the Marines without a contempt trial but said he also has "serious concerns about what is going on here."
Weemer's attorney Chris Johnson told the judge that all Weemer had left was his life. Larson responded that it was his understanding that the last thing a Marine had was his honor.
"This court is once again calling on his honor and integrity," Larson said.
Behnke said Weemer was made an offer to plead guilty to a reduced charge of dereliction of duty in his military criminal case. Until recently, Nelson was cooperating with the government, the prosecutor said.
Weemer and Nelson were previously jailed for refusing to testify before a federal grand jury looking into allegations against Nazario, whose trial began Thursday.
Nazario's federal trial marks the first time in which a civilian jury will decide whether the alleged actions of a former service member in combat violated of the rules of engagement. A law written in 2000 and amended in 2004 made that possible.
During opening statements, prosecutor Charles Kovats described Nazario as a man who killed "unarmed, submissive, docile" detainees and encouraged men under his charge to do the same.
Defense attorney Kevin McDermott countered that Nazario killed insurgents to protect his men in a city where every resident was looking for a fight.
Nazario, 28, has pleaded not guilty to voluntary manslaughter on suspicion of killing or causing others to kill four unarmed detainees, assault with a deadly weapon and discharging a firearm during a crime of violence. If convicted of all the charges, he could face more than 10 years in prison.
Weemer was ordered this month to stand trial in military court on charges of unpremeditated murder and dereliction of duty in the killing of an unarmed detainee in Fallujah. He has pleaded not guilty.
Nelson, 26, is slated to be court-martialed in December on charges of
unpremeditated murder and dereliction of duty for his role in the deaths.
Although he has not entered a plea in military court, Nelson's attorney
has said his client is innocent.
It's the first time civilians have determined whether the alleged actions of a soldier in combat violated the laws of war.
Jose Luis Nazario Jr., a former Riverside police officer, was found not guilty of voluntary manslaughter, assault with a deadly weapon and discharging a firearm during a crime of violence. He could have faced 10 years in prison.
The 28-year-old Nazario and family members wept loudly on hearing the verdict in federal court. The judge had to bang his gavel to call for order.
The U.S. attorney had urged the jury to convict Nazario, saying he violated his duty as a Marine and must be held accountable.
Two other squad members — Sgts. Jermaine Nelson and Ryan Weemer — have been charged in military court with murder and dereliction of duty. They also face criminal contempt charges in federal court because they refused the court order to testify in the Nazario case.
The Press-Enterprise has more.
(Aug. 16 photo of Jose Luis Nazario Jr. by Sean Dufrene, AP.)
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