Skip to comments.NAZARIO TRIAL, DAY ONE: "This kind of case is supposed to be in a military court"
Posted on 08/22/2008 4:58:28 AM PDT by RedRover
Riverside, California--There is a lot at stake in the utilitarian court room dominated by the Seal of the United States District Court for Central California at Riverside.
This is where former Marine Corps Sergeant Jose Luis Nazario, 28, is on trial for allegedly killing enemy combatants his squad captured in the opening hours of the battle for Fallujah, Iraq almost four years ago.
Two other Marines in the squad he led are charged with unpremeditated murder and dereliction of duty by the Marine Corps.
For the record, Nazario says it never happened.
On trial with Nazario is almost 250 years of American law that our nations warriors are not to be second-guessed by disassociated, ill-informed civilians thousands of miles and millions of emotions away from their battlefields.
Nazario was a squad leader in the notorious 3rd Platoon, Kilo Co., 3rd Battalion, 1st Marines, the Thundering Third, which, incidentally, has not been mentioned thus far.
In 2005, the Thundering Third was picked to deck the halls of the Pantheon of Heroes at the National Museum of the Marine Corps in Quantico, Virginia because of its magnificent performance at Fallujah.
Somebody sure has a weird sense of humor.
Nazario stands accused of executing the prisoners because he received an unlawful order over his radio from an unknown superior to do so. So far that allegation hasnt even been mentioned either.
"Docile" combatants and a repugnant case of civilians judging warriors
According to the government, Nazario simply decided to whack four innocent Iraqi men who just happened to be in a house full of hot weapons, ammunition, and spent cartridges when his squad barged in to take the place over. The government prosecutor told the jury he was upset because his friend and subordinate, LCpl Juan Segura, had just been killed.
Assistant U.S. Attorney Charles Kovats didnt mention that Segura was the first Marine to die in Operation Phantom Fury, later rechristened Operation Al Fajr to mollify Iraqi prestige. Before it was over in mid-December, 32 other Marines from the Thundering Third, including five from Kilo Company, would die as well. Kovats didnt mention that either.
As expected, the opening arguments were interesting. The government fumbled its way though understandably unfamiliar terrain trying to make sense out of things that dont make sense. In a civilian courtroom, trying to equate combat to criminal behavior seemed ludicrous on its face.
Kovats did have the temerity to call the allegedly dead enemy combatants docile." I once shared dehydrated American tomato sauce and orange drink for a few days with some mujehadin jihadists from Chechnya, Pakistan and Azerbaijan while in Bosnia in 1993.
I certainly wouldnt characterize them as docile. The Chechen fondly told me he would like to kill me but I was useful at the moment. Instead he went off to madly snuff out the Serbs, in his mind all Slavs were infidels of an even worst sort.
The defense, led by veteran military lawyer Kevin B. McDermott was far more interesting to listen to. Government lawyers like to drone, McDermott likes to make impassioned pleas to the sensibility of the jurors.
Of course he said Nazario was innocent. Defense lawyers always say that. But he added a warning that isnt usually heard. He told the jurors they were making decisions that would affect the lives of all our soldiers, sailors and Marines for years to come.
A former Marine himself, McDermott candidly admits he finds it repugnant that civilians should judge the actions of warriors.
After opening arguments ended, the government put on its case. Because it doesnt have any bodies, names, identities, nationalities, physical evidence, or grieving widows and orphans to prove the existence of the phantom decedents, it is falling back on policy and procedures to prove a crime occurred.
A joke going around is that the Naval Criminal Investigative Service special agent heading the investigation actually found the dead guys; they were hiding among Saddams weapons of mass destruction.
The first prosecution witness was a retired Marine named Courtney Johnson. Johnson fought his war as a corporal during Desert Storm when Iraqi soldiers were surrendering en masse to journalists that had sneaked over the border ahead of the Marines slipping into Kuwait. He admitted he had never been confronted with the kind of face to face war Nazario experienced.
Johnson recited from manuals placed into exhibit books placed on his podium. He talked about what Marines are supposed to learn about enemy prisoners of war and when they were supposed to learn it.
Everybody passed, he said. It reminded me of getting qualified expert on the rifle range with a pencil; a poke here, a poke there, and every man a marksman.
The next witness was a sharp young infantry major named Daniel E. Schmitt. He told the jury that the Marine Corps called the environment of combat chaos. The government never mentioned he was Nazarios first company commander after he got out of boot camp.
Schmitt was sent to Riverside from his duty station in Iraq to testify about teaching Nazario the rules of war. He said that when he is finished he is going straight back to the war.
Schmitt passionately explained that one of the problems in preparing young Marines to enter combat in Iraq was getting their heads around shooting women holding babies. At first, the actors the Marines employed to add reality to the exercise simulated holding babies When the Marines didnt buy it the trainers went to Wal-Mart and bought doll babies to simulate the real thing.
After that, the Marines had a lot harder time shooting the moms, he said with a straight face. That was a good thing, he added. The baby toting mamas represented an important component of the training program dealing with identifying and reacting appropriately to perceived threats.
An obvious look of consternation passed over the face of one of the women jurors while Schmitt was explaining how the Marines decided whether the mothers holding the babies were also hiding bombs behind their children.
I wondered whether it was even possible for the jurors to ever imagine women holding bombs and their babies in the same embrace. That doesnt happen very often in Riverside. In fact, a cursory search for Riverside moms with bombs and babies drew a blank.
Deciding whether or not to shoot Iraqis digging holes in the side of the road was easier to come to grips with, Schmitt explained.
Digging holes in the side of the road is a non-growth industry because we know holes in the side of the road is where they plant bombs, he said. At the end of the day it is a mental, moral, or personal decision of the Marines. No Marine is ever denied the right of self defense.
No doubt the defense lawyers liked that answer. Nazario certainly did.
The last witness to testify Thursday was Capt. Jonathon Vaughn, a Marine who was the Thundering Thirds JAG Judge Advocate General (not to be confused with an SJA, Staff Judge Advocate) who was the battalions lawyer at Fallujah.
As one would expect from a lawyer, Vaughn had a lot to say. He even had a picture of himself teaching an ROE class in Iraq to show the jury in case anyone doubted his veracity. He looked good.
Vaughn testified that he taught and re-taught the rules of engagement and the law of war to 3/1 Marine in Iraq over and over before he was injured at Fallujah on November 12 and evacuated.
Halfway through his testimony a juror complained to the bailiff that he didnt understand the terminology and acronyms Vaughn and the trial lawyers were using to explain what they were all talking about.
Admittedly, there were enough letters floating around the room to make an alphabet soup. ROE (rules of engagement), UCMJ (Uniform Code of Military Justice), and LOAC (Law of Armed Conflict), to name a few.
The jury was kind of confused by all the military lingo because this kind of case is supposed to be in a military court, Nazario later observed.
It was undoubtedly the most logical explanation of the entire day.
There is a "live thread" to keep up with the latest on the trial HERE.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
I must have missed something. How did this get into a civilian court?
There was an act of Congress in 2000, the Military Extraterritorial Jurisdiction act (or MEJA). The statue gives criminal jurisdiction over contractors and former servicemembers for conduct overseas to district courts in the US.
Nazario is the first former serviceman to be charged with a crime arising out of combat.
Looks like the politicization of the military is now pretty much complete - as a warrior, one is now subject to whatever political wind happens to be blowing through the DOJ. Nice reward for those who would put their lives on the line to preserve our way of life.
As Nazario has found, this is an unpopular war with much to be gained, politically, by the communists and leftist radicals that have infiltrated so deeply into the gub'mints institutions.
This is crazy.Here’s a bump.Prayers for him and his family.
Do you think the prosecution will shout out....”No way Jose” when the defense prevails???
If that law works one way wouldn’t a court decision work the other as well. Meaning wouldn’t it circumvent the UCMJ by applying civilian procedures to the military.
It could have that effect indirectly. For instance, if Nazario was convicted under civilian law and his two co-defendants were acquitted under the UCMJ, it would cause the military justice system to come under closer scrutiny and criticism.
I don’t that’s a likely outcome though. I believe Nazario will be acquitted and so will his co-defendants. But anything can happen.
Yes, I think that’s exactly what will happen.
Then the prosecutors will be off for their Labor Day holidays while Jose tries to begin rebuilding the wreckage of his life.
Very good piece by Nat Helms.
It was pointed out yesterday that some of the jurors are veterans and Nazario was satisfied with the jury. Helms has now pointed out that some jurors can’t follow the testimony because they don’t understand the terminology.
As far as some jurors being veterans I’d like to know if any are combat veterans on that jury, working in an office or a hospital is not quite the same as combat. There are nine women on that jury and supposedly women are not supposed to be in combat though some now do experience it.
It makes me wonder if any on that jury can really imagine a woman with a suicide vest blowing herself up to kill a percieved enemy or four “docile” unlawful enemy combatants that had just stashed their weapons after killing Marines being captured in the middle of a combat zone.
Nat Helms has shown what a farce it is prosecuting combat veterans of our military in a civilian court in one short article.
Would someone, anyone explain to me why there appears to be almost NO INTEREST amongst GReepers in this case?
1. School starting.
2. Economy, gas prices stressed out
3. Election numbed, disillusioned stressed out.
4. Long priority list of screamingly frightful things on the near horizon and daily news headlines.
5. Hard to wade through the above and connect this case to anything personally impactful on their families.
You really nailed the big picture. This trial hasn’t been on the media’s radar (as far as I know, Michael Savage is the only guy in radio or TV to take notice of it) which is a shame because the issues at stake are crucial.
Well, for those who wish to use any of the above excuses, I would like to say that I cannot think of a case that will affect their lives more than this one.
If this soldier is tried and found guilty in a civil court, for actions he did while he was in the military, after he was discharged from the Service, where do they think the next batch of soldiers to defend America is going to come from?
Would you advise your sons or daughters to join the military if they could also be tried in a civil courtroom for actions they do on the battlefield. I won’t and that’s a guarantee. I won’t advise any American citizen to join the military if this club is going to be held over their head for the remainder of their life.
If these jurors are to pass judgment, they need to know what sort of environment the Marines were operating in. This is probably the 1st time that woman ever heard of such a thing - maybe she'll realize what sort of hellish standards our enemies keep, and that there's no way to survive an operation like Fallujah if you believe you can stroll in there and peacefully arrest "docile" terrorists, death squads imported from the most evil and murderous jihadist enclaves in the middle east.
I think the defense should continue to paint the picture that earned combat the term "chaos" if civilians have a chance of understanding what our guys survived...oh, wait a minute ~ wasn't Major Schmidt a witness for the prosecution?
Sounds like the prosecution's 1st volley was an "own goal".
Agreed. US Attorney Kovats was not at all impressive and sounds like fish out of water. It doesn’t seem the two military attorneys have been much help to him as yet.
Trying to explain to this jury that cutting the bottom out of a can of Coke, putting a fragmentation grenade inside the can, pulling the pin and having a cute little six year old sit the can down in a market is not an unheard of tactic. Can the jury envison what the remains look like of the innocent victim(s) who thinks they are picking up an unopened can of soda pop?
The jury will not envison a victim whose face has been erased and their body shredded by the frag grenade. Why not? Because they have no experience in matters such as this. They will think grenade make a lot of noise and the injuries come from flying soil particles and small rocks, not the thousands of tiny bits of wire 1/8 of an inch long. A frag grenade is made from one long piece of indented wire wrapped around an explosive C-4 charge encapsulated in a metal casing using a blast cap to set if off.
It’s things such as this that mandate the requirements that combat veterans be the only ones who should ever hold trial on other soldiers. Until you have been there you can’t possibly have any idea what war is about.
We must get this Marine out of this civilian courtroom and into a court martial of his peers.