Skip to comments.Marine charged in civilian court with voluntary manslaughter at Fallujah seeks dismissal of charges
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, Nazarios 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, Nazarios 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 Nazarios 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 Nazarios 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 Nazarios 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 Allawis 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 Amys 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 3/1s 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.
Naval Criminal Investigative Service Special Agent Mark Fox brought the complaint to Thomas P. OBrian, 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 Nazarios 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 Nazarios 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 Nazarios orders, evidence introduced last month at his Article 32 investigation showed..
According to Nelson the incident occurred within hours of the Marines in Nazarios 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 Nelsons 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 Nazarios 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 dont 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 doesnt 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”
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.
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.
Thanks. I didn’t know shooting instructors rated the campaign cover.
Yeah, you may have to ask some active duty guys about that.
A new one? Give a hint...Army or Marine.
When I went off the deep end I thought it would be a lonely place. Boy was I wrong. This case with Nazario leaves me WOW (with out words).
I get the same feeling reading the e-mail streams between Evan’s lawyers.
It’s out of Pendleton, but it may not go forward. Hope not, needless to say.
Speaking of Evan, I hear he’s made a friend in Ray. Hope that helps at least a little.
I hear he’s made a friend with Ray.
Certainly, darling. I’m turning in. See you tomorrow!
“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.”
And add, especially when an act was ordered over a communications device such as a radio.
This should never have gone to court. It should have been laughed out as soon as it was filed.
“No statute 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.”
I’d hate to think about it but this could make asbestos litigation look like small potatoes to trial lawyers. I can just see them flocking to the middle east to recruit anyone claiming to be related to a departed terrorist. I hope this doesn’t turn into open season on GI’s, but it’s beginning to smell that way.
I'm going to stay optimistic about Nazario. The bad would be that he can't possibly get a jury of his peers unless they are all veterans.
The good (I think) is that the bar of evidence in a civilian court is much higher. Having a taped "confession" that someone else killed someone is one thing if you have something to collaborate it, like definitive forensics such as bullets that matched Nazario's weapon found during the autopsy on the BODY, intent, a NAME, none of which they have.
Perhaps someone should present to the court a tape of me confessing to the Coast Guard that Agent Fox killed and ate one of Greg Gutfield's houseboy's in a fit of rage for not being picked to be on his waterpolo team, and that during the melee I drank all of Greg's beer without asking, which is a crime.
A federal judge is deciding whether to keep or drop manslaughter charges against an Iraq war veteran.
The debate in Riverside federal court Monday afternoon raised international issues.
Jose Luis Nazario Jr. served as a Marine sergeant during Operation Phantom Fury in Fallujah, Iraq, in November 2004.
A former Riverside police officer, Nazario has pleaded not guilty to two charges of manslaughter in the deaths of two Iraqi detainees. He is being tried in federal court because he is no longer in the military.
Also, two other Marines have been charged in the deaths of two more Iraqis connected to the Nazario case.
According to court documents filed by the U.S. Attorney's Office, Nazario killed one detainee, ordered the two subordinates to kill two more and then shot the remaining detainee himself.
Attorneys for Nazario requested the case be dismissed, asserting that the law under which he was charged does not apply to combat -- and that it's not the job of the civilian courts and juries to examine combat actions.
Prosecutors said the killings violated the laws of war.
U.S. District Court Judge Stephen G. Larson debated with each side and said he probably would not rule until next week.
The case is scheduled for a jury trial on July 8.
The case centers on the 2000 Military Extraterritorial Jurisdiction Act. The law is so recent that case law is almost non-existent.
Defense attorney Kevin McDermott said a jury of civilians would have greater difficulty understanding the rules of engagement and war.
"Do we have the fundamental fairness to go through this scenario for Sgt. Nazario to have the best possible process?" he asked.
Larson compared the case to how a civil jury learns about police rules of engagement for an excessive-force case. He then asked Assistant U.S. Attorney Jerry Behnke about future consequences of a civilian ruling, as excessive-force cases are designed to affect how a police department functions.
Behnke said the only question is whether Nazario committed a crime.
"It is not a tactical decision," Behnke said. "It is not a strategic decision."
He said the Jurisdiction Act was intended to make sure service members could be tried for crimes after they have left the military and prevent what he called an imbalance of justice.
"The message ... is that servicemen have to conduct themselves within the limit of the law," Behnke said.