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The War Profiteers - War Crimes,
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May 13th,
2008 - Accused in Killing, Former Marine Speaks |
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Accused in Killing, Former
Marine Speaks By Gidget Fuentes Marine Corps Times May 13, 2008 Oceanside, Calif. - When
Jose L. Nazario Jr. enlisted in the Marine Corps a decade ago at age 17, he
wanted to join the elite warriors he revered as “the honorable ones.” “I wanted to be a fighter. I
didn’t want to be a pencil pusher,” said Nazario, who ultimately became an
infantry squad leader. “I wanted to be one of the heroes you see in the
movies.” In 2005, after fighting in
Iraq and spending eight years in the Corps, Nazario joined the police
department in Riverside, Calif., a growing city east of Los Angeles, where he
and his wife settled with their new baby. But today, from his parents’
house in upstate New York, his future, his finances and his freedom are in
doubt. Nazario, 28, was ending his
police shift Aug. 7, 2007, when he was called into his supervisor’s office
for bad news: He was facing federal felony charges of voluntary manslaughter
for his part in shooting several men to death. Nazario and his infantry squad
allegedly encountered the men inside a house during combat operations in
Iraq. Nazario spoke to Marine
Corps Times on the condition from defense attorneys that he wouldn’t discuss
specifics about the case and incident in question. Government prosecutors,
prompted by a Naval Criminal Investigative Service probe, contend the male
victims were detainees, not combatants, when the Marines shot them. The allegations stemmed from
the squad’s actions Nov. 9, 2004, during the pivotal Battle of Fallujah that
crushed a stubborn, dangerous insurgency that threatened one of Anbar
province’s heavily populated cities. Then-Sgt. Nazario was a
squad leader in Kilo Company with the Camp Pendleton, Calif.-based 3rd
Battalion, 1st Marines, which was engaged in intense fighting in the city’s
densely built Jolan district. More than 1,200 suspected
insurgents were killed and 1,000 others detained in the battle’s first 10
days, the Defense Department reported at the time. Dozens of Marines and
other service members since have been heralded for bravery and heroics during
the intense house-to-house combat, which Marines and historians have
described as the fiercest urban fighting since 1968 during the Battle of Khe
Sanh in Vietnam. Nazario, still in his
probationary year on the police force when he got the news, was stunned. He
thought it was a joke. He couldn’t believe what he heard about the incident,
nearly three years old. “I was like, ‘Which people
are you talking about?’” he recalled, speaking by telephone from New York.
“It was obvious all of it was hearsay.” His life that day took a
180-degree turn. “They said I couldn’t work
there anymore, and they fired me,” he said of the police department. They
told him to hand over his badge and his weapon, and “they cuffed me in front
of my peers, my captain. “They just threw me out. A
wife and kid, expenses. They didn’t care,” he said. “They just threw me out.
They didn’t ask for an explanation.” Because Nazario had
completed his military obligation on Oct. 11, 2005, and had no pending
Reserve commitment, the Corps had no legal avenue to charge him under the
Uniform Code of Military Justice. Instead, NCIS contacted the U.S. Attorney’s
Office, which filed federal charges under a little-known law, the Military
Extraterritorial Jurisdiction Act. A federal grand jury indicted him on two
counts of voluntary manslaughter. MEJA, which Congress
approved and which took effect in 2000, extends military jurisdiction to
members of the armed forces who “engage in conduct outside the United States
that would constitute an offense punishable by imprisonment for more than 1
year if the conduct had been engaged in within the special maritime and
territorial jurisdiction of the United States.” The government decided the
law applied to Nazario’s situation. “The killings in this case
were unlawful because they violated clearly established law of war,” U.S.
Attorney Thomas P. O’Brien and assistant U.S. attorneys Sheri Pym, Jerry
Behnke and Charles J. Kovats wrote in a brief to the court, citing the
handling and killing of detainees. Since Nazario “was not acting ‘in
conformity with [the president’s] orders’ the political question doctrine is
inapplicable.” Nazario’s defense attorneys
asked U.S. District Court Judge Stephen Larson in Riverside to dismiss the case
on grounds that included a lack of jurisdiction and inapplicability of MEJA
to combat actions. The government objected, arguing the alleged actions
against “detainees [who] were unarmed” represent “a defined criminal
violation.” On April 28, the judge rejected
the defense’s motion and ordered the case to trial beginning July 8. “The express language of
this statute provides federal courts with jurisdiction to hear criminal cases
where, as here, the alleged crime was committed prior to discharge from the
Armed Services,” Larson wrote in his ruling. Nazario’s defense attorneys
contend that MEJA doesn’t address or apply to conduct during any combat
action. Such prosecutions, they warn, would subject any service member to
investigation and prosecution many years after alleged combat-zone crimes.
Kevin B. McDermott said a comment made by a combat veteran self-medicating
himself with alcohol at a bar “15 to 20 years from now ... ends up in federal
court.” “There is no end to this war
for any veterans,” said McDermott, a Tustin, Calif., attorney representing
Nazario. “You are on the hook forever.” Nazario isn’t the sole
member of his squad facing charges in the alleged incident. The Corps has charged Sgts.
Jermaine Nelson and Ryan Weemer separately with murder and dereliction of
duty charges in connection with the alleged shootings, and those cases are
expected to go to general courts-martial. It was Weemer’s admission during a
polygraph examination that originally prompted an NCIS agent to look into the
allegations. Nazario and his defense
attorneys dispute the charges. In court briefs seeking the dismissal, they
noted the squad, while clearing buildings of insurgent fighters, had taken
fire from a house and encountered the men during a search of the house where
“the Marines found AK47 rifles, ammunition and four military-age males.” “The government, however,
chooses to gloss over these allegations in its response because it recognizes
that any inquiry into Sgt. Nazario’s conduct on November 9, 2004, will necessarily
implicate military decision-making and combat orders.” Amid the charges and legal
wrangling, Nazario has lost 30 pounds and battles depression as he tries to
keep his head high. His unemployment benefits have run out. His defense
attorneys are working pro bono, and a defense fund is helping raise money to
offset some of the legal expenses. His wife, Diette, returned to work while
he cares for their son, Gabriel, 2. “I’m a former sergeant of
Marines, and I can’t even provide the basic necessities for my family,” he
said. “It’s depressing.” Nazario has sent out
numerous resumes and job applications, but no one will hire him. Most job
forms ask whether any legal actions are pending against him. “Of course, I’ve got to say
‘yes,’” he said. “After that, it’s pretty much ‘OK, we’ll call you back.’ And
they don’t call back.” External link: http://www.marinecorpstimes.com/news/2008/05/marine_nazario_051208w/ |