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Exclusive Look Inside the Fallujah Investigation
Defend Our Marines ^ | September 4, 2010 | Nathaniel R. Helms

Posted on 09/05/2010 11:21:58 AM PDT by jazusamo

Declassified NCIS Report Raises More Questions Than It Answers

The 82-page summary of the Naval Criminal Investigative Service inquiry into allegations of murder at Fallujah, Iraq offers an inside glimpse of frustrated investigators stymied by a green wall of silence that surrounded the infantrymen from the 3rd Battalion, 1st Marines after a few of their own cried murder.

The investigation was triggered by discharged Marine Ryan Weemer during a Secret Service pre-employment polygraph examination in October, 2006. The former corporal told the examiners he had participated in the execution of four captured enemy combatants at Fallujah in response to a question about particpating in unlawful activities while in the service. The former Kilo Company, 3/1 fire team leader “alluded that similar attrocities had occurred on other occasions, indicating his unit did not take any prisoners,” according to the declassified NCIS report obtained by Defend Our Marines.

Neal Puckett, the lead attorney representing Haditha defendant SSgt Frank Wuterich in his upcoming court-martial, says the revelations contained in the Fallujah ROI summary are extremely important to his client’s case. The perceptions and previous experiences of the Marines who endured the ferocious battle influenced the men who found themselves ambushed at Haditha a year later. Former Haditha co-defendants LCpls Justin Sharratt and Stephen Tatum survived the vicious Hell House battle at Fallujah that is now enshrined in Marine Corps lore, as did Weemer, Nazario, Nelson and several of the Marines who were reluctant witnesses in both cases.

The already maligned infantry battalion was deep in the throes of self-flagellation following the specious “Haditha Massacre” allegations when Weemer confessed. His timing couldn’t have been worse. At Camp Pendleton his buddies in Kilo were already taking head shots for the alleged slaughter of innocents at Haditha. Two months later four of them would be indicted for murder. The fallout came fast and furious.

By the summer of 2007, Weemer, his former squad leader Jose Nazario, a rookie cop in Riverside, California, and Sgt. Jermaine Nelson, an assaultman still in Weapons Co., 3/1, were charged with executing insurgents after Nelson corroborated Weemer’s account with a rambling confession of his own. Nelson hadn’t been diagnosed yet, but he was suffering from pronounced Post Traumatic Stress Disorder when he offered his account of what happened on Nov. 9, 2004.

Weemer, promoted to sergeant in the Reserves, was recalled to active duty to face murder charges. Nelson was charged with murder at almost the same time. Nazario, a civilian with no obligation to the Corps, was charged in U.S. District Court with voluntary manslaughter and assault. Later he was indicted again for using his rifle to commit a felony. He was first Marine – and arguably the first service member - charged with a civilian crime that allegedly occurred while on active duty.

Perp walk for a hero

“It had always been our contention that the case was never about Jose, it was about the command,” explained Orange County defense lawyer and former Marine Kevin B. McDermott when asked about the findings in the ROI summary. His team of lawyers defended Nazario. “Even before the AUSA (Assistant US Attorney) got the indictment from the grand jury, he [Jerry A. Behnke] requested a sit down with counsel to press the fact that they wanted Jose’s cooperation and not his prosecution. They wanted to know where the order came from. When Jose was not about to do that, the AUSA had no choice. The high profile arrest of a former Marine could not just be dropped, not after an indictment had been obtained.”

In May, 2010 McDermott was surprised to learn from lead NCIS investigator Special Agent Mark Fox that one federal Grand Jury in 2007 secretly “no billed” – refused to indict – Nazario so the AUSA who brought the case was forced to shop around for another Grand Jury that would indict him on evidence so flimsy it is almost never relied upon in “ordinary” federal prosecutions, McDermott said.

In the mean time Fox arrested Nazario and “perp walked” him in front of his peers in handcuffs. It was part of the investigative agency’s clumsy effort to psychologically break the hardcore former Marine’s will. Fox later told Nazario he “should have talked to him” when he had the opportunity.

It was an inauspicious beginning of an investigation that was supposed to be targeting senior Marines who ostensibly ordered Nazario to carry out the executions. A few weeks later the second Grand Jury indicted Nazario on Fox's complaint, the one Fox had filed to arrest Nazario in July 2007. After posting his house for bond, Nazario spent the next six months unsuccessfully looking for work while the case ground on.

“They gave us an additional chance in the spring of 2008. Again we were offered a deal, plead to the sheet and cooperate,” McDermott said. “We said ‘no.’ They went back to the grand jury to up the charges from Voluntary Manslaughter to Murder. The grand jury refused to go along, although they did give the AUSA the additional count of 'use of a weapon in the commission of a felony' a mandatory minimum 10 years if convicted.”

“Now he can’t get a job doing squat,” McDermott added, noting his partner is pursuing a lawsuit against the City of Riverside for discharging Nazario without legal or ethical cause. Meanwhile Nazario is attending college in California.

Anything that moves gets killed

At the heart of the criminal complaint that eventually evolved was who pulled the trigger. The AUSA opined in the government’s trial memorandum that the radioed order Weemer and Nelson said Nazario received from higher ups to kill the four prisoners was not relevant because the defendant could not rely on “obedience to orders” as a defense.

“Are they dead yet,” the unidentified superior supposedly inquired.

The squad’s blood lust was up, Weemer told the undoubtedly astounded Feds, especially his own. When the order came his hands were still sticky with blood from his best friend LCpl Juan Segura, who died of gunshot wounds during the fight. After Nazario acknowledged the command, Weemer said he took one of the prisoners into a different room and shot him with his 9mm pistol. The agents immediately communicated Weemer’s confession to the Naval Criminal Investigative Service and the hunt was on.

The incomplete NCIS summary reveals enough to show that on October 18, 2006 the Naval Criminal Investigative Service, the U.S. Secret Service and the Commanding General of the 1st Marine Division knew that the former fire team leader was claiming 3/1’s combat-hyped Marines had been ordered to “take no prisoners” at Fallujah. The startling admissions were considered so profound the report was given the highest NCIS designation “Director’s Special Interest” and a copy forwarded to the Marine Corps as soon as the NCIS was notified of Weemer’s “confession,” the report shows.

The former rifleman’s unsolicited admission on Oct. 9, 2006 set off a violent chain reaction that swiftly climbed up the Marine Corps’ chain of command before coming to rest on the backs of three lowly grunts fighting to stay alive in the midst of the most ferocious battle the Marine Corps had fought in forty years. Despite assertions by the AUSA to the contrary, the investigation to identify those allegedly responsible for giving the radioed order never got off the ground, the ROI summary shows. With the exception of a few “pretext telephone calls” to the former 3rd platoon leader and a cursory interrogation of the former Kilo Company commander the investigation never rose above squad level.

One witness, a riflemen who said he observed some of the reported dead men, told NCIS special agents that Kilo’s highly respected 1st Sergeant at Fallujah told his Marines the day before that “anything that moves gets killed, that he didn’t want us to take any prisoners, and that the innocent people were given time to leave.” The former first sergeant provided NCIS his version of the allegedly illegal order and the matter was dropped, the summary shows.

I was justified in what I did over there

The enlisted Marines who lived through the extraordinary time like to say it was “déjà vue all over again” when the murder allegations surfaced. After a lot of talk about leaving no stone unturned the highest ranking Marine charged with a crime was a Sergeant E-5, one step above the lowest rung on the ladder of command. The allegations that the Marines battling in the streets were ordered to execute prisoners was no longer a serious subject of the investigation. The Director’s Special Interest case was subsequently handled as an ordinary street crime.

The NCIS took immediate advantage of Nelson’s battle rattled condition to induce him to make clandestine telephone calls – the so-called “pretext calls”- the controlling agents hoped would entrap other suspects into confessing murder. Somehow the word got out. While Nelson and his handlers were trying to trap more Marines in their web of intrigue the Marines he was calling were warning each other to watch out for Nelson. The enterprise failed.

The following year Nelson and Weemer redeemed themselves in the eyes of their brother Marines when they accepted imprisonment in a nasty California county jail in a federal contempt beef rather than testify against Nazario. The day they marched into the Federal courtroom, snapped to attention and refused to testify was a proud moment, Nazario later said. The prosecution tried all sorts of means to shake their critical testimony loose without success. In the end the judge gave up.

On August 29, 2008 a jury in US District Court for Central California at Riverside found Nazario innocent of charges of voluntary manslaughter, assault, and using his military issue weapon in the commission of a felony during the supposed offense. The jurors said the NCIS had failed to convince them Nazario had executed two of the four elusive insurgents never identified from among the estimated 3,000 enemy dead littering Fallujah’s 140,000 battered structures. Although Nazario was freed Weemer and Nelson still faced charges of unpremeditated murder and related offenses at nearby Camp Pendleton.

At his court martial Weemer claimed the decedent he was accused of killing had gone for his weapon. Nazario refused to testify, something neither the Marine Corps or NCIS could do nothing about. On the last day of testimony Navy Cross recipient Sgt. Maj. Brad Kasal, wounded alongside Weemer in the Hell House, told the panel he was a fine Marine who always displayed "excellent" military bearing.Without any evidence to the contrary Weemer was found not guilty on April 9, 2009 by an eight-officer panel.

"I was justified in what I did over there," the Illinois native reportedly told North County Times reporter Mark Walker after hearing the not guilty verdict.

Ultimately Nelson, now 29, waffled about his role several times before finally pleading guilty on September 30, 2009 to two counts of dereliction of duty in exchange for the dismissal of the murder count. He was reduced in rank to lance corporal and sentenced to a 150-day jail sentence that was immediately suspended as part of a plea deal. He was the only defendant punished.

Nelson called the outcome a good one.

Continued at Defend Our Marines


TOPICS: Extended News; Foreign Affairs
KEYWORDS: fallujah; haditha; wuterich
NOTE:

SSgt Wuterich Court Martial Postponed

by Nathaniel R. Helms | September 4, 2010

The general court martial of SSgt Frank Wuterich has been postponed due to the serious injury of a former NCIS crime scene reconstructionist injured in a fall. SSgt Wuterich was scheduled to go on trial September 13, 2010.

Neal Puckett, lead attorney for Wuterich, said military judge LtCol David M. Jones, currently stationed in Okinawa, has postponed the trial until November 1. This will give time for the witness to recover from surgery for serious injuries to his hands and legs, Puckett said.

Prosecutor Major Nicholas Gannon informed Puckett late Thursday that former NCIS Special Agent Mike Mahoney sustained the injuries when he fell from a cliff while recreating with his son. Mahoney is the government’s expert on what happened in the houses where civilians died at Haditha.

The so-called “Hutchins Motion” hearing seeking dismissal of the charges will go on as scheduled, Puckett said.

“We have to remain pessimistic the trial will go forward and we have to continue to prepare,” Puckett said.

SSgt Wuterich Court Martial Postponed

1 posted on 09/05/2010 11:22:03 AM PDT by jazusamo
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To: Semper Fi Mom; RedRover; smoothsailing; Just A Nobody; 4woodenboats; American Cabalist; ...
Article by Nat Helms

.

HADITHA MARINE PING!

2 posted on 09/05/2010 11:24:03 AM PDT by jazusamo (But there really is no free lunch, except in the world of political rhetoric,.: Thomas Sowell)
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To: jazusamo

BUMP!


3 posted on 09/05/2010 11:56:24 AM PDT by Lancey Howard
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To: jazusamo
Mike Mahoney sustained the injuries when he fell from a cliff while recreating with his son.

Ewww! Is that legal?

4 posted on 09/05/2010 1:56:55 PM PDT by Islander7 (If you want to anger conservatives, lie to them. If you want to anger liberals, tell them the truth.)
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To: jazusamo

So again, the good Sargent must wait while some idiot (NCIS) heals this time around. What bull shit.


5 posted on 09/05/2010 4:19:49 PM PDT by Marine_Uncle (Honor must be earned....)
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To: Marine_Uncle

Yep, yet another delay but if the “Hutchins Motion” is ruled on like it should be ruled on there’ll be no CM!


6 posted on 09/05/2010 4:46:03 PM PDT by jazusamo (But there really is no free lunch, except in the world of political rhetoric,.: Thomas Sowell)
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To: jazusamo
the serious injury of a former NCIS crime scene reconstructionist injured in a fall.

Sorry, but that part strikes me as hilarious.

I can't believe this person is SO "critical" medically or to the prosecution that they can't proceed. This is such B.S.

They need to pull the plug on this and let it die.

7 posted on 09/05/2010 8:03:44 PM PDT by bigheadfred (We built a tower of stone. With our flesh and bone. Just to see him fly .)
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To: Islander7; jazusamo; Marine_Uncle
he fell from a cliff

I would take that as a SIGN. A wise and prudent person should.

8 posted on 09/05/2010 8:10:36 PM PDT by bigheadfred (We built a tower of stone. With our flesh and bone. Just to see him fly .)
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To: Marine_Uncle; Semper Fi Mom; jazusamo
FWIW, Gannon falling on his face should enhance Puckett's argument for an acquital.

NCIS scores another own goal.

9 posted on 09/05/2010 10:17:52 PM PDT by 4woodenboats (Defend America peacefully, vigorously, and swiftly against all enemies before she becomes a memory)
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To: bigheadfred
I can't believe this person is SO "critical" medically or to the prosecution that they can't proceed. This is such B.S.

No shit.

How long could it possibly take him to grow a new set?

10 posted on 09/05/2010 10:24:10 PM PDT by 4woodenboats (Defend America peacefully, vigorously, and swiftly against all enemies before she becomes a memory)
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To: jazusamo

>> The day they marched into the Federal courtroom, snapped to attention and refused to testify was a proud moment,

I remember the news of that event very well. It was a big deal.

Thanks for the ping.


11 posted on 09/06/2010 1:00:22 AM PDT by Gene Eric (Your Hope has been redistributed. Here's your Change.)
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To: Gene Eric

evading the justice system is a cause for pride?


12 posted on 09/06/2010 1:06:47 AM PDT by HiTech RedNeck (I am in America but not of America (per bible: am in the world but not of it))
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To: jazusamo

Good summary of the Fallujah cases. It will be interesting to read through the NCIS summary.

I can’t believe they are delaying SSGt Wuterich’s court martial, once again. They couldn’t find another “crime scene” reconstructionist to replace Mr. Mahoney? Maybe the outcome of the Hutchin’s motion will make this whole CM a moot point. Thanks for the ping, jaz!


13 posted on 09/06/2010 5:48:29 AM PDT by Girlene
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To: HiTech RedNeck
evading the justice system is a cause for pride?

What justice? From Nat Helm's article:

..........."Why the charges were brought in the first place still mystifies the lawyers who defended Nazario. There was never any corroborating physical evidence to support the charges, McDermott says. Despite intensive records searches during the worldwide investigation that followed no evidence of the insurgent’s existence or deaths was ever found. The investigation officially began on October 16, 2006 and ended on April 8, 2009. The last entry in the 2,700-plus page report merely says, “This investigation is closed.” "............

............The Thundering Third used every weapon at its disposal; bombs, rockets, grenades, machine guns, rifles, knives and fists to exterminate a ruthless al Qaeda led enemy that thought beheading civilians was great sport. Nobody knocked first to see who was inside a barricaded house. Their calling card was something that exploded. After they finished the enemy off the Thundering Third sometimes ordered Israeli-made armored bulldozers to grind the flattened houses containing their bodies into the dirt. It was that kind of war.


The two Marines who refused to testify had already been jailed and faced criminal contempt charges for their refusal to testify. Here's what the judge in Nazario's case thought about their "evasion of justice". From VIEW FROM THE COURTROOM: NAZARIO TRIAL, DAY TWO

Larson, [the judge] who has shown remarkable restraint during the entire bizarre proceeding, shrugged off Behnke’s demand to immediately jail the Marines. Instead, he ordered the men before his bench on September 29th to decide what he ought to do with them.

“There is no maximum limit to what sentence this court can impose,” he warned the assembled cast.

Both Nelson and Weemer already spent three weeks in civilian confinement in May and June after Larson, and another US district judge, sent them to the slammer for refusing to testify to the Grand Jury that indicted Nazario. They never budged.

"Placing either of these two men in jail would have no effect,” Larson reasoned. “There is probably not a whole lot in this world that these men fear."


Eventually, the government dropped the criminal contempt charges (Sept. 23, '08) before any hearing was held.
14 posted on 09/06/2010 6:15:46 AM PDT by Girlene
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To: jazusamo

Thanks for the clarification J.


15 posted on 09/06/2010 4:57:08 PM PDT by Marine_Uncle (Honor must be earned....)
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To: bigheadfred

Heheh. Pretty good Fred.


16 posted on 09/06/2010 5:09:10 PM PDT by Marine_Uncle (Honor must be earned....)
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To: 4woodenboats

I wouldn’t trust the NCIS further then I could throw the whole unit. They screwed the pouch on this whole incident, and they continue to get away with their screw ups.


17 posted on 09/06/2010 5:13:28 PM PDT by Marine_Uncle (Honor must be earned....)
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To: HiTech RedNeck; Girlene
evading the justice system is a cause for pride?

Most of the sitting judges in this country make a career of it.

18 posted on 09/06/2010 5:31:14 PM PDT by bigheadfred (We built a tower of stone. With our flesh and bone. Just to see him fly .)
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To: bigheadfred; jazusamo
We all know that NCIS fell off something a long time ago, myabe Gannon is just getting it now. LOL
19 posted on 09/06/2010 5:35:13 PM PDT by Saoirise (Sgt Larry Hutchins is a Free Man!!!! Keep it that way!)
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To: Girlene

Bush apparently called the dogs off. If this had been going on under Obama the court would still be holding the man defying the court in that “nasty jail.”

However, what was to be lost in testifying except some ego? This lowered the contest from one of truth and honor, to one of battling wills.


20 posted on 09/06/2010 9:26:59 PM PDT by HiTech RedNeck (I am in America but not of America (per bible: am in the world but not of it))
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To: bigheadfred

True, hell can always use one more citizen.


21 posted on 09/06/2010 9:31:31 PM PDT by HiTech RedNeck (I am in America but not of America (per bible: am in the world but not of it))
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To: Girlene
"Placing either of these two men in jail would have no effect,” Larson reasoned. “There is probably not a whole lot in this world that these men fear."

Eventually, the government dropped the criminal contempt charges (Sept. 23, '08) before any hearing was held.

Ah, these battles are not without victories. Thanks for revisiting that memory ;~)

22 posted on 09/07/2010 2:51:49 AM PDT by 4woodenboats (Defend America peacefully, vigorously, and swiftly against all enemies before she becomes a memory)
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