Ex-Marine decries prosecution in civilian court
By CHELSEA J. CARTER, AP Military Affairs Writer
Sun Aug 17, 11:58 PM ET
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
UNION-TRIBUNE STAFF WRITER
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
By CHELSEA J. CARTER – 54 minutes ago [August 22, 2008 (2:31pm)]
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.
A federal jury in California has acquitted a former Marine sergeant
of killings four unarmed Iraqi detainees during the notorious November
2004 battle in Fallujah.
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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