# Ex-Marine Questions Prosecution in Civilian Court



## ToughOmbre (Aug 17, 2008)

This is very troubling to me....

What do you think is going on here?

Sunday, August 17, 2008

IRVINE, Calif. — A former Marine sergeant facing the first federal civilian prosecution of a military member accused of a war crime says there is much more at stake than his claim of innocence on charges that he killed unarmed detainees in Fallujah, Iraq.

In the view of Jose Luis Nazario Jr., U.S. troops may begin to question whether they will be prosecuted by civilians for doing what their military superiors taught them to do in battle.

Nazario is the first military service member who has completed his duty to be brought to trial under a law that allows the government to prosecute defense contractors, military dependents and those no longer in the military who commit crimes outside the United States.

"They train us, and they expect us to rely back on that training. Then when we use that training, they prosecute us for it?" Nazario said during an interview Saturday with The Associated Press.

"I didn't do anything wrong. I don't think I should be the first tried like this," said Nazario, whose trial begins Tuesday in Riverside, east of Los Angeles.

If Nazario, 28, is convicted of voluntary manslaughter, some predict damaging consequences on the battlefield.

"This boils down to one thing in my mind: Are we going to allow civilian juries to Monday-morning-quarterback military decisions?" said Nazario's attorney, Kevin McDermott.

Others say the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.

Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, says it has little to do with questioning military decisions and everything to do with whether a service member committed a crime.

"From a legal point of view, there is no difference in law between war and peace," he said.

The Military Extraterritorial Jurisdiction Act law was written in 2000 and amended in 2004 primarily to prosecute civilian contractors who commit crimes while working for the U.S. overseas. One of the authors contends prosecuting former military personnel was "not the motivation."

"I don't fault the Department of Justice for using what legal authority they have if a clear criminal act has been committed. But I do think that it would be preferable for crimes committed on active duty be prosecuted by court martial rather than in civilian courts," said Sen. Jeff Sessions, R-Ala.

"I think maybe what it says is we need to rethink the question of military personnel who are subject to prosecution."

Telephone messages for a spokesman in the U.S. attorney's office in Los Angeles seeking comment were not returned.

Nazario, of Riverside, is charged with one count of voluntary manslaughter on suspicion of killing or causing others to kill four unarmed detainees in November 2004 in Fallujah, during some of the fiercest fighting of the war. He also faces one count of assault with a deadly weapon and one count of discharging a firearm during a crime of violence.

The case came to light in 2006, when Nazario's former squadmate, Sgt. Ryan Weemer, volunteered details to a U.S. Secret Service job interviewer during a lie-detector screening that included a question about the most serious crime he ever committed. Weemer was ordered this month to stand trial in military court on charges of unpremeditated murder and dereliction of duty in the killing of an unarmed detainee in Fallujah. He has pleaded not guilty.

According to a Naval Criminal Investigative Service criminal complaint, several Marines allege Nazario shot two Iraqi men who had been detained while his squad searched a house. The complaint claims four Iraqi men were killed during the action.

The complaint states the squad had been taking fire from the house. After the troops entered the building and captured the insurgents, Nazario placed a call on his radio.

"Nazario said that he was asked, 'Are they dead yet?"' the complaint states. When Nazario responded that that the captives were still alive, he was allegedly told by the Marine on the radio to "make it happen."

Though Nazario and his attorneys declined to discuss the facts of the case with the AP, the former Marine has always maintained his innocence.

Fallujah was the scene of two Marine battles in 2004, the first of which was launched after insurgents killed four U.S. contractors in the city. That battle was aborted in April 2004 and the Marines launched Operation Phantom Fury in November of that year.

Nazario said he was on his first deployment when his squad entered Fallujah, which he described as a "high combat zone" with insurgents taking shots at troops at every turn — with everything from AK-47s to rocket-propelled grenades.

Thirty-three in his battalion were killed in the battle. The first, he said, was a man in his squad. Nazario later received the Navy-Marine Corps Commendation Medal with a "V" for valor for combat and leadership in Fallujah.

Though Nazario was not physically injured, he was later found to have post-traumatic stress disorder.

After leaving the military, Nazario worked as an officer with the Riverside Police Department and was close to completing his one-year probation. He said he knew nothing of the investigation until he was arrested Aug. 7, 2007, after being called into the watch commander's office to sign a performance review.

He said he was leaning forward to sign when he was grabbed from behind by his fellow officers, told he had been charged with a war crime and was turned over to Navy investigators waiting in a nearby room. Because he had not completed probation, the police department fired him.

Since then, he said, has been unable to find work.

"You're supposed to be innocent until proven guilty," he said. "I've put in applications everywhere for everything. But nobody wants to hire you if you have been indicted."

Without any income, Nazario said, he has been forced to move in with his parents in New York. He and his wife resorted to selling some of their household goods, such as electronics equipment, to a pawn shop.

His wife, once a stay-at-home mother to their 2-year-old son, has gone to work as a customer service receptionist, he said. She will be unable to attend his trial.

"She has to work. We need the money," he said, his eyes reddening as he blinked away tears.

Nazario said he has no regrets about being a Marine, only regrets about what has happened since.

"My faith in the system is shaken. There's no doubt about that," he said.

One of Nazario's defense attorneys, Doug Applegate, said he believes that ultimately the former Marine will be acquitted because of lack of evidence.

"There are no bodies, no forensic evidence, no crime scene and no identities," he said.

It is unclear what, if anything, Marines being subpoenaed to testify will say about the events in the house in Fallujah.

Another Marine, Sgt. Jermaine Nelson, 26, of New York is slated to be court-martialed in December on charges of unpremeditated murder and dereliction of duty for his role in the deaths.

Although he has not entered a plea in military court, Nelson's attorney has said his client is innocent.

Nelson and Weemer were jailed in June for contempt of court for refusing to testify against Nazario before a federal grand jury believed to be investigating the case. Both were released July 3 and returned to Camp Pendleton.

TO


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## Matt308 (Aug 17, 2008)

Lawyers will be the death of us all.

Treating prisoners of war with fully nationalized US citizen rights. Treating fully nationalized citizens serving in our military as enemy combatants. I think I have fallen down the proverbial rabbit hole.


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## wilbur1 (Aug 17, 2008)

THIS IS COMPLETE BULLS#$%!!!!!!!!!!!!!!!!!!!!


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## pbfoot (Aug 17, 2008)

ToughOmbre said:


> T
> 
> 
> 
> ...


Sorry guys I can't see anything wrong except is the order giver on the radio also charged. 
I understand things happen on the battlefield but thats why you get the training to obey Lawful Orders


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## Matt308 (Aug 17, 2008)

Yes Pb. But that is what a Courts Martial is for. Not a civil court. Kinda like the UN prosecuting a Canadian soldier for war actions. BS. In fact if a US civil court is appropriate, then why not other world state civil courts. It quickly spins out of control.


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## ToughOmbre (Aug 17, 2008)

Civil court? No effin' way.

And this may be emotion talkin', but I'm giving the benefit of the doubt to the soldier in combat every damn time!

TO


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## pbfoot (Aug 17, 2008)

Matt308 said:


> Yes Pb. But that is what a Courts Martial is for. Not a civil court. Kinda like the UN prosecuting a Canadian soldier for war actions. BS. In fact if a US civil court is appropriate, then why not other world state civil courts. It quickly spins out of control.


Then why didn't the US Military take the ball and run 
Realizing that the man is innocent until proven guilty the facts as shown indicate the man had shown poor judgement the man is professional soldier. When we had a similar but worse situation in Somailia we ended up with a parlimentary inquest


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## Matt308 (Aug 17, 2008)

Poor judgement or not, if the civil courts assume legal responsibility for adjudicating military actions, the US military will be hornswaggled (handicapped).

I'm not weighing in on an individuals soldiers, marines, sailors, etc., case, but rather am stating a position that civil courts interfering with military affairs directed by the Commander in Chief (President) are contrary to constitutional powers.

The military has their own means of ensuring proper behavior as defined in the Uniformed Code of Military Justice (UCMJs).


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## pbfoot (Aug 17, 2008)

ToughOmbre said:


> Others say the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.
> 
> .


He could not be charged under military law since he was no longer in the military its this option or he cannot be charged . For the most part I trust the legal systems and I'm sure the right decision will be made . I'm sure glad the guy ain't a cop anymore


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## Matt308 (Aug 17, 2008)

Then go after the military. Don't go after the individual. Perhaps the UCMJs should be adjusted to account for attrocities (not sure they aren't now).


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## Njaco (Aug 17, 2008)

It sounds like a loop-hole that they're exploiting especially with the focus on Gitmo. 

He was a military member _at the time of the crime _(if there was one), and it should therefore come under military rule.


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## Freebird (Aug 17, 2008)

Matt308 said:


> Yes Pb. But that is what a Courts Martial is for. Not a civil court. Kinda like the UN prosecuting a Canadian soldier for war actions. BS. In fact if a US civil court is appropriate, then why not other world state civil courts. It quickly spins out of control.





Njaco said:


> It sounds like a loop-hole that they're exploiting especially with the focus on Gitmo.
> 
> He was a military member _at the time of the crime _(if there was one), and it should therefore come under military rule.



Yes I agree that it would probably be better to give a soldier a Court Martial after discharge for actions committed while in uniform, rather than a civilian court.



Matt308 said:


> Then go after the military. Don't go after the individual. Perhaps the UCMJs should be adjusted to account for attrocities (not sure they aren't now).





Njaco said:


> It sounds like a loop-hole that they're exploiting especially with the focus on Gitmo.
> 
> He was a military member _at the time of the crime _(if there was one), and it should therefore come under military rule.



Here is a question: If I understand correctly, a US soldier in a combat zone WITHOUT ANY LAWFUL GOVERNMENT is subject only to the UCMJ. If a soldier commits a crime in another country is he not subject to that countries law? For example the soldiers that raped a girl in Okinawa were tried in Japanese court.

So if I understand correctly, he could be charged by the Iraqi government with a crime?



Japan News said:


> March 7, 1996
> Web posted at: 12:45 a.m. EST (0545 GMT)
> 
> NAHA, Okinawa (CNN) -- Three U.S. servicemen were convicted Thursday in the kidnapping and rape of a 12-year-old Okinawa girl and sentenced to up to seven years in a Japanese prison.
> ...


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## Matt308 (Aug 18, 2008)

Depends on the nation treaties, Freebird. This was a sticking point with the US just recently.


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## Freebird (Aug 18, 2008)

Matt308 said:


> Depends on the nation treaties, Freebird. This was a sticking point with the US just recently.



It's a double edged sword Matt. On one hand I totally understand the US resistance to exposing soldiers to juctice in every tin-pot banana republic. {no offence to those of you who live in such a place  }

I think if the soldier makes an error of judgement IN COMBAT, say shoots civilians by mistake or whatever, I can agree the UCMJ should apply.

But if the guys are off duty and commit some crime then the local law should apply.

Like the guys who raped the 14 yr old in Iraq shot the whole family



> Spielman is the third soldier from Company B, First Battalion, 502nd Infantry, 101st Airborne Division to be convicted of murder and rape in the case, in which soldiers raped a 14-year-old Iraqi girl and then killed her and her entire family.
> 
> Spielman, Sergeant Paul Cortez, and Specialist James Barker will each be eligible for parole after 10 years in prison, according to Dan Christensen, one of Spielman's civilian lawyers.



I'm sorry to say but that sentance was lame. For this kind of crime they should be castrated torn apart by camels.  

But then the Japanese court was out to lunch too. 7 years for gang raping a 12 yr old girl? Bull***t!


And I don't want anyone to think I am saying this is only a military problem, it's a problem with lots of scum in society. There are too many slack judges {lots in Canada!} that give out just a few years for rape/murder. I have no sympathy for these creeps.

I wish we could vote out the lame judges in Canada, like you can in the USA. 

Sorry for the rant.


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## Njaco (Aug 18, 2008)

Sorry, Freebird. In some states you can't - like NJ - Judges are appointed for life, just like the Supreme court. And even if you could vote them out like PA it still doesn't matter. From what I've seen, Judicial elections are as popular as deep-fried mud pies. Hardly anybody votes unless its tagged onto the general election. But mostly voters go party lines.


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## evangilder (Aug 18, 2008)

Military members who commit crimes or are alleged to have committed crimes should be tried by a military tribunal only. Civil courts are not the place to try these kinds of cases because people who have never worn a uniform can not fully understand a lot of things about the military structure and culture.

Trying a military case in a civil court is a recipe for disaster. Our troops deserve better.


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## ccheese (Aug 18, 2008)

I have heard of service members who were discharged, then were found to 
have been involved in a criminal act. In the two cases I know of, both were
recalled to active duty, then tried. The alleged acts were commited while
on active duty, and both members were tried under the UCMJ.



Evangilder said:


> Trying a military case in a civil court is a recipe for disaster. Our troops deserve better.



Boy ! Have you got that right....

Charles


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## pbfoot (Aug 18, 2008)

Now I'm presuming this guy is innocent
But if he did do as the charge states he should be brought to justice but since he has finished his commitment plus a year cannot be charged in the military justice system so there is only one option the civilian courts , I'm going to guess a military background will be high on the list as the defence attorney looks at the jury pool


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## Freebird (Aug 18, 2008)

evangilder said:


> Military members who commit crimes or are alleged to have committed crimes should be tried by a military tribunal only. Civil courts are not the place to try these kinds of cases because people who have never worn a uniform can not fully understand a lot of things about the military structure and culture.
> 
> Trying a military case in a civil court is a recipe for disaster. Our troops deserve better.



As long as the UCMJ court martial is not seen as a whitewash or a slap on the wrist, it wouldn't be a problem.

The case in point seems to be one in which it occured in an active combat, I agree that a military trial is better.

The fact that 99.+ % of US soldiers are moral, compassionate and honorable is lost on the public when they see headlines like Abu Grhaib etc. 

What I would be concerned about as a non-military member of the public is that abuses would be covered up or "whitewashed" to avoid bad press or because of a sort of "code of silence" that often prevents police from ratting on other cops or other similar proffecsional organizations.

How would the military ensure that there is not another repeat of the Mai Lai {Vietnam} travesty, when only one man was ever court martialed for a horrific crime that 50+ soldiers activly participated in?


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## evangilder (Aug 18, 2008)

I cannot pass judgment on this case as I don't know enough of the facts, but more importantly, I wasn't there. The problem here is that there are members of the general public that would like to do nothing more than fry a guy who is even accused of a war crime. Civil juries hearing cases of a military allegation are not completely capable of providing an impartial judgment.


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## Freebird (Aug 18, 2008)

Do you think a Military tribunal would not be overly sensative to a fellow soldier?

Let me ask you ex-military {or current} members some questions then if I may.

*If* the soldier did exactly what is alleged, shot surrendered prisoners who were non-aggressive compliant, what should be the punishment?

Can his behavior be excused because "he was only following orders"?

What about soldiers who commit awful crimes against civilians {murder rape etc}, can they claim that it was the result of combat related stress? Should that be accepted the same way as sometimes claimed by the defendant in civilian court "I was drunk, I don't remember doing that crime"?


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## Matt308 (Aug 18, 2008)

It has been well documented that following orders that are morally or legally improper is not supported by the UCMJs.

For the sake of discussion, and ONLY for the sake of discussion, the DAs in AbuGrab should have been discharged for being stoopid and jeopardizing US credibility. Nothing more. College hazing if you ask me.

Now the guys who raped the Iraqi girl and killed her. Death.

Does that make my position clear?


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## ToughOmbre (Aug 18, 2008)

Matt308 said:


> It has been well documented that following orders that are morally or legally improper is not supported by the UCMJs.
> 
> For the sake of discussion, and ONLY for the sake of discussion, the DAs in AbuGrab should have been discharged for being stoopid and jeopardizing US credibility. Nothing more. College hazing if you ask me.
> 
> ...



Crystal!

And I agree 100%.

TO


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## RabidAlien (Aug 19, 2008)

evangilder said:


> Military members who commit crimes or are alleged to have committed crimes should be tried by a military tribunal only. Civil courts are not the place to try these kinds of cases because people who have never worn a uniform can not fully understand a lot of things about the military structure and culture.
> 
> Trying a military case in a civil court is a recipe for disaster. Our troops deserve better.



Amen. 100% agreed.

Did the incident occur on the last day of the guy's enlistment? If not, then if the military didn't find anything wrong (and assuming that nobody asked any questions, from batallion CO to platoon leader, is rather silly), then dragging this poor guy into a civilian court sounds suspiciously of "news is lax, we need another military scandal, quick call that former Hollywood screenwriter to drum something up for us". Otherwise known as BS. As far as civilians trying a military case....it'd be like me tryin to judge an Olympic female gymnastics competition. I have no idea what's going on, what went into the event, and my focus would be completely distracted by bouncing boobies.


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## pbfoot (Aug 19, 2008)

So just let the guy walk ? 
The guy is supposed to be a professional soldier in a supervisory position if he did as stated he needs to be disciplined . I agree that a civilian court is not the place but that is the only alternative


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## ToughOmbre (Aug 29, 2008)

*Not Guilty!*

Former Marine Acquitted of Iraqi Killings in Landmark Trial
Thursday, August 28, 2008

Former Marine Sgt. Jose Luis Nazario Jr., 28, of New York.
IRVINE, Calif. — A former Marine accused of killing unarmed Iraqi detainees was acquitted of voluntary manslaughter Thursday in a first-of-its-kind federal trial.

The jury took six hours to find Jose Luis Nazario Jr. not guilty of charges that he killed or caused others to kill four unarmed detainees on Nov. 9, 2004, in Fallujah, Iraq, during some of the fiercest fighting of the war.

FOXNews.com - Former Marine Acquitted of Iraqi Killings in Landmark Trial

TO


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## evangilder (Aug 29, 2008)

I read about it yesterday. There were a lot of parts of this case that would have been difficult to try for a military tribunal, even worse for a civil trial. Did he do it? God only knows, and he's not talking. 

Having read about, and talked to some of the vets of Falluja, I can tell you it was serious bad-guy land, even for a hard-core seasoned soldier. It was a CF from the beginning, and only got worse.


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## ccheese (Aug 29, 2008)

ToughOmbre said:


> *Not Guilty!*
> 
> Former Marine Acquitted of Iraqi Killings in Landmark Trial
> Thursday, August 28, 2008
> ...




Good call. The civilian court had no business in this case. If he was to be
tried, it should have been in a military court.

Charles


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## RabidAlien (Aug 29, 2008)

Agreed. Tried by a jury of his peers....wonder how many on the jury had been in combat. I'm a military vet, but never a front-line soldier. Civilians have no idea what goes on up in the trenches! 

I also have a feeling that a military tribunal would have been even more difficult, especially if the case were plastered across the media headlines. If they found him "not guilty", would the world look on that as "protecting one of their own"? If found guilty, would the military look on that as "oh, they're just bending to the will of the civvies"? This was a baaaaaaaad situation no matter which way you look at it.


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