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

John G. Browning Dec. 10, 2008, 2:20pm

In Part I, we examined the historic application of the Military Extraterritorial Jurisdiction Act, or MEJA, to Jose Nazario, a decorated ex-Marine, for alleged actions during combat in Iraq in 2004.

Although he pleaded not guilty and denied that the incident ever occurred, the charges had immediate repercussions for Nazario. Eight weeks from the end of his probation period with the Riverside Police Department, Nazario was immediately fired upon being arrested.

He put up his home as collateral for his bond, and Nazario found himself unemployable with the charges hanging over him like a dark cloud. The ex-Marine and his family got by on his wife's small paycheck and help from relatives.

"At one time in your life, you're a war hero and a breadwinner," said the former staff sergeant. "The next day, you're facing felony charges and you're unemployed. It's devastating."

Fortunately for Nazario, his legal defense team worked largely pro bono. Led by Kevin McDermott and a "dream team" of former Marines from high-powered law firm Pepper Hamilton, Nazario's lawyers prepared for a courtroom battle that didn't get underway for a year.

It was hardly "CSI: Fallujah." The prosecution offered no bodies, no identities, and no forensic evidence. It attempted to demonstrate that Nazario had given an order to kill the prisoners by calling Sgt. Ryan Weemer and Sgt. Jermaine Nelson, who had given statements to NCIS investigators.

However, the two Marines (who themselves were facing courts martial) refused to testify against Nazario either to a grand jury or at the trial itself. When even the promise of immunity failed to sway the Marines, prosecutors brought criminal contempt charges against Weemer and Nelson, charges which were later dropped.

The trial proved the doubts harbored by MEJA's sponsor, Sen. Jeff Sessions, about having civilian juries second-guess actions taken in the heat of combat.

"There are all kinds of problems with witnesses and evidence and those kinds of things, in addition to the fact that military persons are operating in an environment quite different from the normal street crime we see," he stated.

After deliberating for six hours, the jury of nine women and three men acquitted Nazario on all counts. Beside the lack of witness testimony, jurors afterward cited concern about a civilian jury hearing such a case.

One of them, Nicole Peters, said "I don't think we had any business doing that. I thought it was unfair to us and to him." Jury forewoman Ingrid Wicken agreed, noting "You don't know what goes on in combat until you're in combat."

Legal experts seem to share the jurors' hesitation about applying the MEJA to veterans for their wartime actions.

"The average American is reluctant to second-guess the conduct of a serviceperson in a combat zone," says David Glazier, an associate professor at Loyola Law School.

Gary Solis, a former Marine Corps prosecutor and judge who teaches at Georgetown University Law Center, described the jury's verdict as "a very reasoned response… because they apparently recognized this was not something they were sell-suited to determine. In my view, it's going to cause the U.S. attorneys to give a second thought to prosecuting soldiers for acts that occurred in combat."

With the historic case over, a relieved Jose Nazario has turned his attention to getting his police officer job back. Unfortunately, since he was on probationary status, Nazario has no automatic right to reinstatement. He has to re-apply for the job, and it's within the department's discretion to accept him or not. While Riverside Police Department spokesman Steven Frasher would not comment on confidential personnel matters, he did acknowledge that the application process could take months.

What really happened on that November day in Fallujah? Did Sgt. Nazario and his Marines, who had lost one comrade earlier that day, kill unarmed Iraqis in a fit of vengeance? Was there an order not to take prisoners? Or is the truth of what happened murkier, enshrouded by the fog of war?

In any event, the ill-fated effort to use the Military Extraterritorial Jurisdiction Act as a means of applying civilian legal hindsight to combat situations is reminiscent in many ways of another courtroom drama, one played out over a century ago in a far-off land and later immortalized on the silver screen.

The 1980 film "Breaker Morant" revolves around the 1902 court martial of three Australian soldiers serving in the British Army during the Boer War in Africa. Harry "Breaker" Morant, Peter Handcock, and George Witton were part of the Bushveldt Carbineers, a mounted unit of irregulars charged with pursuing and neutralizing the Boer commandos who were waging a bloody guerilla campaign against the British.

Eschewing the "civilized" rules of war, these Boers frequently fought wearing civilian clothes or the khaki uniforms of captured or dead British soldiers. They made hit-and-run raids their calling card, and disrupted British supply lines by blowing up trains.

The parallels between the insurgents faced by the British in South Africa and those fought by the Marines in present day Iraq are striking, as illustrated by Breaker's advice to his comrade George Witton in the film:

"It's a new kind of war, George. A new war for a new century. I suppose this is the first time the enemy hasn't been in uniform. They're farmers. They come from small villages, and they shoot at you from behind walls and from farmhouses. Some of them are women, some of them are children, and some of them… are missionaries, George."

Atrocities were committed on both sides of this new war.

To foil the Boer success in blowing up trains, British commander Lord Kitchener ordered Boer civilians placed on the fronts of locomotives; to deprive the enemy of support from the civilian population, he ordered the mass internment of Boers in what would one day be known as concentration camps.

Kitchener also issued a secret order – denied by the British Army during the trial itself – that Boer prisoners caught wearing British khaki were to be summarily executed.

Morant and the rest of the Bushveldt Carbineers (about 70 percent of whom were Australian) were good at their job of eliminating the roving Boer commandos. But the bloody campaign took its toll.

In an August 1901 skirmish, Morant's commander and best friend Capt. Simon Hunt (Morant was engaged to his sister) was killed in a Boer ambush. When Hunt's body was recovered, Morant was infuriated to find that it had been horribly mutilated. Morant and his men pursued the fleeing Boers, capturing eight of them. On Morant's order, the prisoners were summarily executed.

Weeks later, in October 1901, Lt. Morant and two other Australians (Handcock and Witton) were arrested. They wouldn't be given notice of the actual court-martial charges against them for several months, until shortly before the court-martial itself began on Jan. 16, 1902.

The court-martial itself is the focus of the film. From the beginning, it is clear that the Aussie defendants find themselves in a kangaroo court. Witnesses favorable to them have been mysteriously transferred to India, witnesses with an axe to grind against them are permitted to testify despite clear bias, and the military attorney appointed to defend them, Major J. F. Thomas, not only has a mere two days to prepare but is a small-town solicitor from Australia who has never tried a case.

When told that the lawyer his life depends on has only handled "land conveyancing and wills", Handcock (played by Bryan Brown) wryly observes "Wills. Might come in handy."

Despite the expectation that he would be no obstacle to the prosecution juggernaut, Major Thomas proves to be a dogged courtroom advocate. He discredits witness after prosecution witness, makes sound legal objections, and even calls for the testimony of Lord Kitchener to prove that the British commander-in-chief had standing orders mandating the shooting of any Boer prisoner caught in British uniform (Kitchener, like other witnesses, is conveniently called away).

Most tellingly, he makes the argument that the "rules of war" so sanctimoniously referred to by the British Army court are not the same in this new style of guerrilla warfare, a fact already recognized implicitly by the British in the orders they've given to execute Boer prisoners.

At one point, infuriated by the prosecutor's second-guessing of conduct in the pressure-cooker of a combat zone, Lt. Morant (played by Edward Woodward) reminds the court that war is not as tidy as a court-martial and that they are expected to kill as many of the enemy as possible with their Enfield .303 rifles.

"We caught them and we shot them under Rule 303," he seethes.

However, even the most rigorous defense is doomed by the court-martial's foregone outcome. It is an unpopular war on the British homefront, and anything other than convictions could jeopardize Anglo-Boer peace talks that could end the hostilities.

The three defendants are convicted (Morant and Handcock are sentenced to die while Witton is to be imprisoned), and requests for stays of execution are denied so as not to thwart political expediency. Defiantly calling for the firing squad to shoot straight and not "make a mess of it," Morant and Handcock are executed at dawn.

The film "Breaker Morant" and the historical events it dramatizes offer a cautionary lesson about applying the legal standards of civilian life to soldiers under the stress and unique circumstances of combat duty. The 12 jurors sitting in judgment of Jose Nazario knew that they hadn't seen what he had seen in the gritty hand-to-hand combat of Fallujah, and as a result they could not render a verdict for the sake of mere political scapegoating.

Perhaps they understood the stark, uncomfortable truth behind a line uttered by Major Thomas in the film, one that is just as applicable to Iraq as it was to the Boer War: "The barbarities of war are seldom committed by abnormal men. The tragedy of war is that these horrors are committed by normal men in abnormal situations."

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