Ex-Marine decries prosecution in civilian court
By CHELSEA J. CARTER (AP Military Affairs Writer)
From Associated Press
August 17, 2008 7:05 PM EDT
IRVINE, California - 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
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
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
"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, an Alabama
"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
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."
Though Nazario and his attorneys
declined to discuss the facts of the case with the AP, the former
Marine has always maintained his innocence.
Fallujah was the scene of two Marine
battles in 2004, the first of which was launched after insurgents
killed four U.S. contractors in the city. That battle was aborted in
April 2004, and the Marines launched Operation Phantom Fury in November
of that year.
Nazario said he was on his first
deployment when his squad entered Fallujah, which he described as a
"high combat zone" with insurgents taking shots at troops at every turn
- with everything from AK-47s to rocket-propelled grenades.
Thirty-three in his battalion were
killed in the battle. The first, he said, was a man in his squad.
Nazario later received the Navy-Marine Corps Commendation Medal with a
"V" for valor for combat and leadership in Fallujah.
Though Nazario was not physically injured, he was later found to have post-traumatic stress disorder.
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, he 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 any 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
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
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