Ex-Marine Questions Prosecution in Civilian Court

[ToughOmbre]

This is very troubling to me....

What do you think is going on here?

Sunday, August 17, 2008

IRVINE, Calif. — 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.

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."

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, 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 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.

TO

[Matt308]

Lawyers will be the death of us all.

Treating prisoners of war with fully nationalized US citizen rights. Treating fully nationalized citizens serving in our military as enemy combatants. I think I have fallen down the proverbial rabbit hole.

[wilbur1]

THIS IS COMPLETE BULLS#$%!!!!!!!!!!!!!!!!!!!!

[pbfoot]

Originally Posted by ToughOmbre

T



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.

.

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."

Sorry guys I can't see anything wrong except is the order giver on the radio also charged.
I understand things happen on the battlefield but thats why you get the training to obey Lawful Orders

[Matt308]

Yes Pb. But that is what a Courts Martial is for. Not a civil court. Kinda like the UN prosecuting a Canadian soldier for war actions. BS. In fact if a US civil court is appropriate, then why not other world state civil courts. It quickly spins out of control.

[ToughOmbre]

Civil court? No effin' way.

And this may be emotion talkin', but I'm giving the benefit of the doubt to the soldier in combat every damn time!

TO

[pbfoot]

Originally Posted by Matt308

Yes Pb. But that is what a Courts Martial is for. Not a civil court. Kinda like the UN prosecuting a Canadian soldier for war actions. BS. In fact if a US civil court is appropriate, then why not other world state civil courts. It quickly spins out of control.

Then why didn't the US Military take the ball and run
Realizing that the man is innocent until proven guilty the facts as shown indicate the man had shown poor judgement the man is professional soldier. When we had a similar but worse situation in Somailia we ended up with a parlimentary inquest

[Matt308]

Poor judgement or not, if the civil courts assume legal responsibility for adjudicating military actions, the US military will be hornswaggled (handicapped).

I'm not weighing in on an individuals soldiers, marines, sailors, etc., case, but rather am stating a position that civil courts interfering with military affairs directed by the Commander in Chief (President) are contrary to constitutional powers.

The military has their own means of ensuring proper behavior as defined in the Uniformed Code of Military Justice (UCMJs).

[pbfoot]

Originally Posted by ToughOmbre

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.

.

He could not be charged under military law since he was no longer in the military its this option or he cannot be charged . For the most part I trust the legal systems and I'm sure the right decision will be made . I'm sure glad the guy ain't a cop anymore

[Matt308]

Then go after the military. Don't go after the individual. Perhaps the UCMJs should be adjusted to account for attrocities (not sure they aren't now).

[Njaco]

It sounds like a loop-hole that they're exploiting especially with the focus on Gitmo.

He was a military member at the time of the crime (if there was one), and it should therefore come under military rule.

[freebird]

Originally Posted by Matt308

Yes Pb. But that is what a Courts Martial is for. Not a civil court. Kinda like the UN prosecuting a Canadian soldier for war actions. BS. In fact if a US civil court is appropriate, then why not other world state civil courts. It quickly spins out of control.

Originally Posted by Njaco

It sounds like a loop-hole that they're exploiting especially with the focus on Gitmo.

He was a military member at the time of the crime (if there was one), and it should therefore come under military rule.

Yes I agree that it would probably be better to give a soldier a Court Martial after discharge for actions committed while in uniform, rather than a civilian court.

Originally Posted by Matt308

Then go after the military. Don't go after the individual. Perhaps the UCMJs should be adjusted to account for attrocities (not sure they aren't now).

Originally Posted by Njaco

It sounds like a loop-hole that they're exploiting especially with the focus on Gitmo.

He was a military member at the time of the crime (if there was one), and it should therefore come under military rule.

Here is a question: If I understand correctly, a US soldier in a combat zone WITHOUT ANY LAWFUL GOVERNMENT is subject only to the UCMJ. If a soldier commits a crime in another country is he not subject to that countries law? For example the soldiers that raped a girl in Okinawa were tried in Japanese court.

So if I understand correctly, he could be charged by the Iraqi government with a crime?

Originally Posted by Japan News

March 7, 1996
Web posted at: 12:45 a.m. EST (0545 GMT)

NAHA, Okinawa (CNN) -- Three U.S. servicemen were convicted Thursday in the kidnapping and rape of a 12-year-old Okinawa girl and sentenced to up to seven years in a Japanese prison.

The verdict handed down by a panel of three judges -- Japan does not have a jury system -- followed months of protests against the U.S. military presence in Okinawa. In the aftermath of the crime, support for American troops in Japan has reached one of its lowest points since World War II.

The sentence was lighter than expected; prosecutors had urged the judges to return 10-year sentences against all three, arguing that the girl was kidnapped, beaten, brutally raped, and then abandoned.

[Matt308]

Depends on the nation treaties, Freebird. This was a sticking point with the US just recently.

[freebird]

Originally Posted by Matt308

Depends on the nation treaties, Freebird. This was a sticking point with the US just recently.

It's a double edged sword Matt. On one hand I totally understand the US resistance to exposing soldiers to juctice in every tin-pot banana republic. {no offence to those of you who live in such a place }

I think if the soldier makes an error of judgement IN COMBAT, say shoots civilians by mistake or whatever, I can agree the UCMJ should apply.

But if the guys are off duty and commit some crime then the local law should apply.

Like the guys who raped the 14 yr old in Iraq & shot the whole family

Spielman is the third soldier from Company B, First Battalion, 502nd Infantry, 101st Airborne Division to be convicted of murder and rape in the case, in which soldiers raped a 14-year-old Iraqi girl and then killed her and her entire family.

Spielman, Sergeant Paul Cortez, and Specialist James Barker will each be eligible for parole after 10 years in prison, according to Dan Christensen, one of Spielman's civilian lawyers.

I'm sorry to say but that sentance was lame. For this kind of crime they should be castrated & torn apart by camels.

But then the Japanese court was out to lunch too. 7 years for gang raping a 12 yr old girl? Bull***t!


And I don't want anyone to think I am saying this is only a military problem, it's a problem with lots of scum in society. There are too many slack judges {lots in Canada!} that give out just a few years for rape/murder. I have no sympathy for these creeps.

I wish we could vote out the lame judges in Canada, like you can in the USA.

Sorry for the rant.

[Njaco]

Sorry, Freebird. In some states you can't - like NJ - Judges are appointed for life, just like the Supreme court. And even if you could vote them out like PA it still doesn't matter. From what I've seen, Judicial elections are as popular as deep-fried mud pies. Hardly anybody votes unless its tagged onto the general election. But mostly voters go party lines.