MILITARY: First trial in Fallujah killings starts Tuesday

Case against Jose L. Nazario Jr. asks civilian jury to rule on battlefield incident

By MARK WALKER - Staff Writer | Sunday, August 17, 2008 9:13 PM PDT ∞

In the first trial of its kind, a civilian jury will decide if a former Camp Pendleton Marine is guilty of leading the slayings of four unarmed captives during a battle for the city of Fallujah nearly four years ago.

Military law experts say the manslaughter trial of former Sgt. Jose L. Nazario Jr. establishes a precedent by asking jurors who may have no military background to decide the legitimacy of a battlefield action.

The trial starts Tuesday in U.S. District Court in Riverside,

A conviction, according to his attorneys, would send a message to troops that what they do in an overseas war could later be called into question by a civilian jury back home.

That could cause some to hesitate during fighting, thus putting themselves and their fellow troops at risk, the attorneys argue.

"To second-guess the mind-set of a young man in the heat of battle four years later, and to put the question in a (civilian court) system that can't even remotely comprehend the battlefield, is shameful for this government," said Joseph Preis, one of three attorneys defending Nazario.

"While not acknowledging that any part of the government's case is true, the fact is, the military sent these people out to do a job and kill everything that moved in a city where there were no good guys left," Preis said during a telephone interview last week.

David Brahms, a former Marine Corps general who once was the service's top legal adviser, said the civilian court aspect of the case is troubling.

"The operative word is 'insight,' " said Brahms, who practices military law in Carlsbad. "The case is about what happens on the field of battle and how to deal with the rules of engagement.

"It presents a new paradigm because military matters are normally tried in a military setting by people who have some sensitivity to the kinds of events and circumstances that occur in war. Civilians who don't have any of that experience aren't equipped with that kind of insight."

Unnamed victims

On its face, winning a conviction appears a daunting task: There are no bodies, no names to identify the dead and no complaining witnesses other than the government, which has built its case on statements from the Marines who were present.

Some of those Marines initially aided in the investigation, including Sgt. Jermaine Nelson, who is facing prosecution in military court and with whom the government has attempted to strike a deal granting him limited immunity to testify against Nazario.

No such deal had been reached by late last week, according to Nelson's attorney, Joseph Low.

Nonetheless, statements from uncharged squad members confirm that the slayings took place and that Nazario is thus guilty of manslaughter and related offenses, according to the prosecutors, assistant U.S. attorneys Jerry Behnke and Charles Kovats.

"The killings were unlawful because they violated clearly established law of war," the prosecutors declared in a pretrial filing. "All Marines, including the defendant, were repeatedly taught that they shall do no harm to detainees."

Twenty Camp Pendleton Marines and one sailor have been prosecuted on charges related to unlawful killings in Iraq since the March 2003 invasion.

All except Nazario have been prosecuted under military law.

His trial before U.S. District Judge Stephen G. Larson is expected to continue through next week.

Unfair firearm allegation?

A former Riverside police officer, Nazario is one of three Camp Pendleton troops charged in the killings that prosecutors say took place in the opening hours of the battle for the Iraqi city.

Two of the men he led that day, Sgts. Nelson and Ryan Weemer, are being prosecuted by the Marine Corps at Camp Pendleton.

Each faces charges equivalent to second-degree murder and dereliction of duty for mistreating captured enemy combatants.

Nazario is accused of voluntary manslaughter for shooting two of the captives and directing subordinate squad members to shoot two others on Nov. 9, 2004.

He faces up to 10 years in prison if convicted on that charge.

And in what his attorneys say is a bitter twist, he's also charged with using his service-issued firearm to carry out the killings.

A conviction on the firearm charge carries a mandatory 10-year prison term and is an unfair escalation of the allegations, according to Gary Solis, a military law professor at Georgetown University and a former Marine Corps judge and prosecutor.

"It's unjust and unnecessary, because it's clearly a charge oriented toward civilian cases," Solis said. "Every person in a combat zone carries a weapon. It's just not fair."

Nazario is the first former service member to reach court after being charged under the Military Extraterritorial Judicial Act adopted by Congress in 2000.

The act is aimed at U.S. citizens who commit crimes in another country, but it also authorizes prosecution of former service members accused of crimes.

Nazario, who has pleaded not guilty, is only the second former service member charged under the act.

The other is former Army Pvt. Steven D. Green, who is accused of a crime not tied to a battle. Green's case involves the rape and slaying of a 14-year-old Iraqi girl.

Nazario's attorney unsuccessfully tried to have the case dismissed by arguing the extraterritorial judicial act was not intended to apply to battlefield incidents.

They now say that could be one basis of appeal if he is convicted.

Now a New York resident, Nazario left the Marine Corps long before the Fallujah killings came to light. He wasn't subject to recall into the service, leaving the Justice Department as the only entity that could prosecute him.

'Are they dead yet?'

It was Weemer's statement to a Secret Service agent during a 2006 job interview that he was aware of unlawful killings that led to the investigation and charges, according to court documents.

The prosecution says the slaying took place Nov. 9, 2004, the second day of the largest urban warfare for U.S. troops since the fight for the city of Hue during the Vietnam War.

The military had warned Fallujah residents for days that it was preparing to enter the city.

Civilians were told to gather their belongings and leave. Anyone encountered when the military moved in would be considered an enemy fighter.

The Anbar province city was then a hotbed for the insurgency. It was there that four Blackwater Security contractors were killed and their corpses hanged from a bridge just six months earlier, prompting a confrontation that ended when U.S. troops were ordered to withdraw in late April.

By that November, the city of about 160,000 people was home to thousands of insurgents.

When commanders gave the order for troops to move in, Nazario was leading a rifle squad from Camp Pendleton's 3rd Battalion, 1st Marine Regiment.

They were directed to advance to the city center and kill any armed insurgents they encountered, according to court documents.

Early on in that mission, court filings say, they encountered and detained the four unidentified men inside a home suspected of being a base for small-arms fire.

A search turned up several weapons ammunition, according to court records.

Nazario then placed a call over his squad radio, according to an affidavit from an agent with the Naval Criminal Investigative Service.

"Nazario said that he was asked, 'Are they dead yet?' " the affidavit from Special Agent Mark Fox states.

When Nazario responded that the captives were alive, he was told by a Marine on the radio to "make it happen," according to the court document.

The Fox affidavit says Nazario shot two detainees in the head and directed Nelson and Weemer to shoot the other men.

"Who else wants to kill these guys, because I don't want to do it all myself," Nazario is quoted as asking his Marines in the Fox affidavit.

Four days later, Weemer was shot three times during fighting in what came to be known as the "Hell House" battle.

Ninety-five U.S. servicemen were killed in that battle and more than 600 were wounded. An estimated 1,350 insurgents were killed and 1,000 captured.

Who gave the order?

Kevin McDermott, who along with Preis and Douglas Applegate are defending Nazario, said he believes the real aim of the trial is to find out who was on the other end of the radio call and may have suggested the detainees be killed so the squad could continue its mission.

"The government isn't that interested in Nazario," McDermott said. "It wants to know whether there was such an order and who gave it."

The defense attorneys, all former Marines from Orange County representing Nazario free of charge, say they would see how the prosecution plays out before deciding if they will call Nazario to the witness stand.

A conviction on any of the counts, Solis said, would establish a precedent for future civilian court prosecutions of former service members no longer subject to prosecution in military court.

If Nazario is convicted, there will be more prosecutions, Solis predicted.

If he's acquitted, Solis said, he believes federal civilian prosecutors will be hesitant to go after former service members on charges related to combat incidents.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

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