U.S. Marines fought landmark historical battles in Iraq’s Fallujah in November 2004. Many Marines lost their lives fighting house to house against entrenched enemy irregulars, “insurgents,” if you will. The fighting was hot, bloody and made history.
Young Marine recruits will hear as much about Fallujah a hundred years from now as we heard about Guadalcanal, Iwo Jima, Chosen, The Halls of Montezuma and the landing at Inchon
They might also hear that if one is not super careful one might wind up in a civilian court in the U.S. fighting charges of murder for combat deaths that may or may not be reported or even documented.
That just happened to former Marine Staff Sergeant Jose Luis Nazario Jr., 28, in a Federal court in Riverside, California
Arrested by Naval Investigative agents while working as a Riverside police officer. He was charged with manslaughter of four Iraqi men during the house to house fighting in Fallujah. He was charged under a 2000 law passed by Congress and signed by President Clinton, the “Military Extraterritorial Jurisdiction Act.” It was written in 2000 and amended in 2004 primarily to allow prosecution of civilian contractors (Halliburton?) who commit crimes while working for the U.S. overseas, according to the Associated Press.
As Nazario was totally separated from Marine service and no longer under military jurisdiction, some crazy U.S. Attorney took it upon himself to charge Nazario. This is the first ever trial for a former fighting man in a civilian court for an alleged criminal act 10,000 miles away, four years ago while he was in military service.
The United States Attorney was nuts and so was the Federal district judge who allowed the case to go to trial. Simultaneously, the Marines still have jurisdiction over two of Nazario’s squad and have charged them under the Uniform Code of Military Justice with their courts martial coming soon.
In an interesting side note, those two Marines rejected a phony “immunity” offer to testify against Nazario and refused to testify. The judge attempted to force them to testify but they still refused. He charged them with contempt of court and will hold a hearing soon to decide their punishment.
The issue came about because a letter surfaced signed by a low-ranking legal officer that stipulated to “limited immunity” if they testified AGAINST their former Squad Leader. The letter was not signed by the “convening authority” a Marine General who is the only person who can grant any immunity in a military justice case. So, the men refused to testify.
The government presented its case and some testimony. The defense simply rested its case without testimony because the defense attorneys decided the government didn’t prove its case. The jury of 12 men and women agreed. Nazario was acquitted.
The two marines still face punishment for contempt of court by the federal judge.
The Associated Press (AP) reports that: “…some members of the civilian jury that acquitted a former Marine accused of war crimes in the case raised serious questions about whether federal prosecutors should even pursue Iraq ‘war crimes’ saying they weren’t qualified to judge actions in combat…”
“I don’t think we had any business doing that,” said juror Nicole Peters, who wiped away tears during Thursday’s verdict and later hugged the defendant, Nazario. “I thought it was unfair to us and to him.”
Nazario was the first military veteran brought to trial under the Military Extraterritorial Jurisdiction Act. May he be the last!
“I don’t think any of us who passed that legislation thought we were now going to have people discharged from the military being charged in federal court,” said former Alabama U.S. Attorney Sen. Jeff Sessions, R-Ala. who helped write the law in 2000.
Here is the crux of why the government lost its case according to the AP: “The evidence against Nazario included testimony by former comrades who heard gunshots but did not see the shooting that occurred on Nov. 9, 2004, during house-to-house fighting in Fallujah during “Operation Phantom Fury.” The prosecution had no bodies, no identities, no crime scene and no forensic evidence to present to the jury.”
That’s it, no witnesses, no bodies, no forensic evidence, no “victim’s names and no crime scene.
Was there a prima facie case with which to charge Nazario in any court? No. Is the law itself deficient? Yes. Should the Assistant U.S. Attorney who brought these charges and the Naval Investigators who investigated the case be fired and or disbarred? Yes. Should the federal judge who charged two Marines for contempt for exercising their constitutional rights be impeached? Yes!
Should non-veteran civilians be asked to judge fighting men doing their jobs in combat 10,000 miles away and four years later? No.
Raoul Lowery Contreras is a San Diego based journalist. Contreras’ books are available at amazon.comPosted - Copyright © 2022 Eastern Group Publications, Inc.