Legally Speaking: Law and the Fog of War, Part I of II

With its rich wood paneling, guest gallery, and polished Olympus of a judge's bench, Courtroom No. 1 in the federal courthouse in Riverside, Calif., was unlike any battlefield on which former Marine Corps Sgt. Jose Luis Nazario Jr. had ever found himself.

But for the ex-soldier, it was still a battlefield and the stakes were just as high in that courtroom in late August 2008 as they had been in Fallujah in November 2004. For amidst the stern trappings of U.S. District Judge Stephen Larson's court, Nazario was fighting for his life, on trial for alleged war crimes in connection with the killings of four Iraqi insurgents.

In a historic trial, Nazario – who had already left the service and was beyond the jurisdiction of military prosecutors – became the first former soldier to be tried for wartime conduct under the Military Extraterritorial Jurisdiction Act.

The Military Extraterritorial Jurisdiction Act (MEJA) was passed in 2000 with the best of intentions. In the midst of Congressional debate about the heightened use of contractors (who are not subject to military courts martial) and crimes overseas that local authorities were reluctant to pursue, legislators felt they were closing a loophole by enabling federal prosecutors to bring charges over crimes on bases, by contractors, civilian employees, military dependents and by current or former members of the armed forces.

The Act, found at 18 USC § 212, permits prosecution of such individuals if they engage in conduct outside the U.S. "that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in" U.S. territory. However, the law contains no limitations on how long after his on her service a veteran may be charged, and is open-ended as to sort of act that could result in charges.

Theoretically, the law could be used to hold veterans accountable years or even decades after a war is over for an act that wasn't even a criminal offense at the time. As the law is currently written, the white–haired grandfather down the street who stormed the beach at Normandy in 1944 or the co-worker who survived the Tet Offensive in 1968 could potentially be charged for wartime actions on the whim of a federal prosecutor.

The implications of the law and the prosecution of Jose Nazario have surprised even those who helped draft the Act. Sen. Jeff Sessions, the Alabama Republican who introduced the law, said "I don't think any of us at the time the legislation passed were contemplating that a potential criminal act that occurred while a person was on active duty in combat would be tried in a civilian court."

To understand how 12 civilian jurors in a Riverside, Calif., courtroom came to sit in judgment of this former Marine, one has to first examine the circumstances that brought Nazario to the prosecutors' attention.

By all accounts, Jose Nazario was a Marine straight out of Central Casting: eager for a way out of New York's Spanish Harlem, he talked his mother into signing a consent form allowing him to join the Marine Corps in 1997 at age 17. He worked his way up to squad commander, and in June 2004 was sent to Iraq.

During fighting in Fallujah, days after the alleged incident that would put him on trial, Sgt. Nazario led his men in a bloody, sustained battle with foreign combatants (Chechens who had joined the Islamic insurgents in Iraq). According to the citation accompanying the commendation medal with its "V" for valor that he was awarded in 2005, Nazario "performed courageously while leading his squad through multiple engagements with a cunning and determined enemy... with complete disregard for his own safety."

Just days earlier, on Nov. 9, 2004, Sgt. Nazario and his men had been involved in "Operation Phantom Fury." The urban combat, in which the Marines systematically cleared houses of insurgents in Fallujah, featured some of the fiercest fighting of the war. Nazario would later describe Fallujah as "pure hell."

That morning, he saw a member of his squad fatally shot. According to testimony later given to Naval Criminal Investigative Service agents by other Marines, Nazario and his men took fire from a house, and they went to investigate it. Upon entering, the Marines found four Iraqi men sitting on the floor, possibly with their hands raised.

At this point, stories tend to diverge. James Prentice, a member of Nazario's squad, says that despite the Iraqis' denials of possessing any weapons, several AK-47 automatic rifles and some ammunition were discovered during a search of the house. This allegedly upset Sgt. Nazario, to the point where he struck one of the Iraqis. Nazario then supposedly made a radio call for orders on how to proceed.

In his statement to NCIS investigators, Prentice maintains that Nazario informed the squad that the orders were to kill the prisoners and move out since the unit was proceeding down the street. Nazario allegedly shot two of the Iraqis, and instructed two squad members, Ryan Weemer and Jermaine Nelson, to each choose a victim because "I'm not doing all this [expletive deleted] by myself."

Another member of Nazario's command, Lance Corporal Samuel Severtsgaard, entered the room where the detained Iraqis had been and saw the bodies on the floor along with a couple of AK-47s.

Nazario has denied the accuracy of his squadmates' recollections. However, he admits that without facilities to hold captured insurgents and no way to bring them with the unit, taking prisoners wasn't an option.

"I don't see what we were supposed to do with detainees," he says. "We had more houses to clear. If this incident occurred like they said it did, I don't see how any Marine would be expected to jeopardize the life of himself and his own men."

Nazario finished his eight year Marine hitch in 2005, and got out, feeling "If you stay in Iraq long enough, you're going to get hurt." Returning stateside with an honorable discharge and "another chance at life," Nazario joined the police department in Riverside, 50 miles east of Los Angeles.

To Nazario, serving as a police officer represented "a natural extension from my work in the Marines." Among other requirements in becoming a probationary member of the police force, Nazario passed a lie detector test in which he was asked if he'd ever committed a serious crime.

By October 2006, Ryan Weemer was also no longer on active duty, and taking a lie detector test himself. But this polygraph examination was part of Weemer's pursuit of a job with the Secret Service. Weemer's answers regarding his time in Iraq concerned the questioner.

In a transcribed interview, Weemer described an incident in which several unarmed insurgents were captured in a house. According to the transcript, the interviewer first brings up the subject, asking Weemer if the Marines shot them; Weemer replies, "We had to, yeah."

The case was then forwarded to the NCIS and its Special Agent Mark O. Fox. Over the course of nearly two years of investigation, Fox's team visited a house in Fallujah that they believed to be "the crime scene," but found "no apparent evidence of the killings," according to a June 2008 Navy report. Investigators had no address for the home (identifying it in indictment papers only as being in "Fallujah, Iraq"), and no bodies: the two alleged victims were referred to as "John Doe #1 and "John Doe #2."

Frustrated, they used one of Nazario's former squadmates, Sgt. Jermaine Nelson, to try to secretly tape phone conversations with Nazario in an effort to entrap the former Marine. At one point in a disjointed conversation, Nelson asked "Who gave us the orders though?" Nazario appears to say "I did," but then refers to orders coming via radio from higher up in the chain of command.

When asked about such statements, Nazario denies understanding that Nelson was referring to any specific incident, and dismisses the conversation as two guys who were "talking tough" and exaggerating wartime experiences.

Armed with the tape, and little else in the way of evidence, NCIS agents arrested Mr. Nazario at the Riverside Police Station on Aug. 7, 2007, as he was returning from night patrol. The indictment papers charged Nazario with "unlawfully and intentionally" killing four people; intentionally assaulting the four men with a dangerous weapon "with intent to do bodily harm;" and with knowingly using and carrying a firearm "in furtherance of a crime of violence, namely, voluntary manslaughter."

In Part II, we'll examine what happens when civilian law is used to second guess a soldier's judgment in combat, and we'll show how prosecuting soldiers for political expediency during an unpopular war is hardly a new phenomenon.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at: jbrowning@gordonrees.com

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