|
The War Profiteers - War Crimes,
Kidnappings, Torture and Big Money |
|
August 20th,
2008 - Civilians to Try Iraq War Case Against Ex-Marine |
|
Civilians to Try
Iraq War Case Against Ex-Marine By Steve Liewer San Diego Union-Tribune August 20, 2008 When Jose Nazario goes on
trial this week in Riverside on charges of voluntary manslaughter, he won't
exactly face a jury of his peers. Nazario, 28, is a former
Camp Pendleton Marine sergeant accused of executing two prisoners during the
battle to retake Fallujah, Iraq, from al-Qaeda militants in November 2004. Two of Nazario's men, Marine
Sgts. Ryan Weemer and Jermaine Nelson, are facing courts-martial at Camp
Pendleton because they are still on active duty or in the reserves. But because Nazario had left
the Marine Corps, only a civilian federal court has the jurisdiction to try
him. He's the first former service member to be tried under an 8-year-old law
passed primarily to allow prosecution of U.S. civilians connected to the
military who commit crimes overseas. “This is a trend-setting
case,” said Joseph Preis of Irvine, one of Nazario's three pro-bono
attorneys. Opening arguments are expected tomorrow in U.S. District Court in
the city where Nazario was working as a probationary police officer at the
time of his arrest. Some observers don't like
the idea that a Marine's combat actions are being judged by civilians who
know little of war. “You're talking about a
group of people that validly wake up every morning with an intent to kill,”
said Colby Vokey of Dallas, a Marine Corps defense attorney at Camp Pendleton
until his retirement a few weeks ago. “That's a little tough to grasp for
someone who has never been in that situation.” Nazario is facing a civilian
trial under the Military Extraterritorial Jurisdiction Act, which Congress
passed in 2000. The law plugged loopholes created by a pair of mid-1950s
Supreme Court decisions that said military courts had no authority to
prosecute civilians, including former service members, during peacetime. Congress acted because of
outrage over a child-rape case in Germany that could not be prosecuted. “Commanders overseas were
saying they just didn't have a way to (prosecute) civilians who came over
with military families,” said retired Rear Adm. Don Guter, the chief Navy and
Marine Corps lawyer from 2000 to 2002 and now dean of the Duquesne University
law school. “I don't ever remember it being contemplated that (the law) would
cover ex-military people.” One of the legislation's
sponsors said prosecuting former military personnel was “not the motivation”
for passing the law. “I don't fault the
Department of Justice for using what legal authority they have if a clear
criminal act has been committed,” Sen. Jeff Sessions, R-Ala., told The
Associated Press. “But I do think it would be preferable for crimes committed
on active duty to be prosecuted by court-martial rather than in civilian
courts.” Prosecutors said the
Fallujah captives were shot Nov. 9, 2004. The killings came to light when
Weemer told the U.S. Secret Service about them during a lie-detector
screening for a job interview. Weemer – who was called back to active duty
because, unlike Nazario, he was still on reserve status – has pleaded not
guilty to charges of unpremeditated murder and dereliction of duty. Nelson has not entered a
plea, but his attorneys have said he is innocent. Several Marines allege that
Nazario shot two detainees who were captured while his squad searched a
house, according to a report by the Naval Criminal Investigative Service. The
document said four Iraqi men were killed during the incident. It also said the squad had
been taking fire from the house. After the troops entered the building and
captured the insurgents, Nazario radioed his superiors. “Nazario said that he was
asked, 'Are they dead yet?' ” the report said. When Nazario responded that
the captives were alive, he was allegedly told by the Marine on the radio to
“make it happen.” Nazario later received the
Navy-Marine Corps Commendation Medal with a “V” for combat valor and
leadership in Fallujah. He left the Marines in 2005, not long after his
combat tour ended. He was arrested Aug. 7 last year. In an interview with the AP
on Saturday, Nazario said he lost his police job and hasn't been able to find
work since. “Nobody wants to hire you if
you have been indicted,” he said. Without income, Nazario
said, he has been forced to move in with relatives in New York. He and his
wife resorted to selling some of their household goods to a pawn shop. His wife, once a
stay-at-home mother to their 2-year-old son, has gone to work as a
receptionist, Nazario said. She won't be able to attend his trial. “She has to work,” he said,
his eyes reddening as he blinked away tears. “We need the money.” Nazario is one of two former
service members who have been charged under the 2000 law. In Kentucky, former Army
Pvt. Steven Green is accused of stalking a 13-year-old while he was serving
in Iraq, raping her, and then killing the girl and her entire family. If convicted, Nazario faces
more than 10 years in prison. His attorneys – Preis, Doug Applegate and Kevin
McDermott – fear the prospect of civilians determining his fate. “I have every confidence in
the people of Riverside,” said Preis, who like Nazario's other lawyers is a
former Marine. “You've got to be able to put somebody in the shoes of a
24-year-old Marine kicking down doors.” While not ideal, it's
necessary for civilians to be deciding such cases, said Joseph Casas of
Carlsbad, a former Navy lawyer now in private practice. “It's the lesser of two
evils,” Casas said. “If an atrocity was committed, who else is going to try
him? Is he going to escape prosecution because he's no longer in the
military?” It's the job of the lawyers,
he said, to make the jury understand what a combat soldier or Marine is up
against. A nonmilitary panel may
actually work to Nazario's advantage, said former California Assemblyman Tom
Umberg of Orange County, who has practiced law in military and civilian
courts. “I think he can get a fair
trial in front of a civilian jury,” Umberg said. “Because they have no
experience with the circumstances and exigencies of combat, they'll give him
the benefit of the doubt.” Scott Silliman, a former Air
Force lawyer, argues that members of Congress knew what they were doing when
they gave federal courts authority over cases such as Nazario's. “His situation is exactly
what Congress envisioned,” said Silliman, who now heads the Center on Law,
Ethics and National Security at Duke University. “If he's going to be brought
to trial, it has to be in federal court.” Preis and other lawyers said
Congress should move combat crimes back into military courts. He said a
politically motivated prosecutor could accuse veterans far into the future. “As long as (the law) is out
there in the arsenal of a U.S. attorney, they're going to use it,” Preis
said. “It means we're going to be second-guessing Marines for the rest of
their lives.” Staff librarian Denise
Davidson contributed to this report. External link: http://www.signonsandiego.com/news/military/20080820-9999-1n20trial.html |