Euphoric Reality

Right on the heels of telling illegals they “deserve fair pay” while working illegally here in the U.S. is this gem.  Just when you think the decisions of this administration can’t get any stupider, they prove you wrong.

In keeping with Obama’s strange (calculated?) propensity for choosing people to serve in posts they are uniquely UN-qualified to serve in, he’s now tapped an outspoken supporter of sanctuary cities to be the head of ICE’s State and Local Coordination Office.  Not to draw on one of my well-used metaphors here at ER, but this is something like hiring a child molester to babysit.

Harold Hurtt, a former police chief in Houston and Phoenix, has been hired as the director for the U.S. Immigration and Customs Enforcement’s Office of State and Local Coordination.

Hurtt should be well aware of the problems facing law enforcement in these areas, since he was one of them.  However, his views are a little less grounded in fact and a whole lot floating around with Obama’s idea of reality:

But as a police chief, Hurtt was a supporter of “sanctuary city” policies, by which illegal immigrants who don’t commit crimes can live without fear of exposure or detainment because police don’t check for immigration papers.

He also, during his tenure as Houston police chief, criticized ICE’s key program that draws on local law enforcement’s support.

“There’s no way you can head up an office if you don’t believe in what the office is supposed to do,” Curtis Collier of U.S. Border Watch, told the Houston Chronicle. “Immigration and Customs Enforcement’s primary mission is to protect the American people. If this guy believes any of these programs should not be enforced, he’s certainly going to be a very weak advocate for them.”

In what passes for the “Are you freaking KIDDING me?!” moment of the week, we have Department of Labor Secretary Hilda Solis telling illegals that they are entitled to a fair wage.

“We can help, and we will help. If you work in this country, you are protected by our laws. And you can count on the U.S. Department of Labor to see to it that those protections work for you.”

Ignore the fact that they’re here illegally.  Solis doesn’t care about minor details.

Editor’s Note: SSG Ray Girouard is serving time at Fort Leavenworth, as are two of his men, for charges that they executed detainees they captured during combat operations near Samarra, Iraq. For those who have followed this case, the amount of corruption and falsification by the prosecution and Army leadership defies reason. Now, for the first time, the true story behind the story. Originally published at The Jaghunter, written by retired LCDR Walter Fitzpatrick III, USN.

This narrative is intended to explain how and why senior commanders forced-marched Michael Steele, and Steel’s innocent subordinates into Defense Department catacombs or into exile. The four purposes served in this posting are:

(1) To discuss the “guilty memories” of Ray Girouard’s commanders (Part II), exposing his Article 32 hearing as a sham,

(2) To justify the call for Ray’s immediate release, the release of Ray’s men, the release of Larry Hutchins, and every other innocent serviceman followed by,

(3) Effecting their return home by Christmas and,

(4) Using examples on these JAG HUNTER pages (this series in particular) magnify the warning to Americans that U.S. military commanders have foresaken the U.S. Constitution.

So, anyone who has access, get the word to General of the Army George W. Bush (commander in chief): release Ray and the others today/tonight!

Anyone with access to Mike Steele, tell him God and sinners reconcile. Come forward and speak the truth!

Editor’s Note: SSG Ray Girouard is serving time at Fort Leavenworth, as are two of his men, for charges that they executed detainees they captured during combat operations near Samarra, Iraq. For those who have followed this case, the amount of corruption and falsification by the prosecution and Army leadership defies reason. Now, for the first time, the true story behind the story. Originally published at The Jaghunter, written by retired LCDR Walter Fitzpatrick III, USN.

Steele’s March, Part 2

The purpose of this day’s posting is to begin the process of disabusing readers that there was anything lawyerly, lawful, or moral regarding the IRON TRIANGLE courts-martial…or any courts-martial if you care to know.

Ray Girouard, Ray’s men and others to include Marine Sergeant Lawrence Hutchins and so many more are imprisoned in Defense Department caves as innocent men.

To understand why, one must comprehend and appreciate the mind of Army General Courtney or “Court” Massengale.

Massengale is Anton Myrer’s antagonist in the novel Once An Eagle.

Court Massengail is a very dark appellation spoken in low whispers in code throughout Pentagon corridors. The disparagement laconically and instantly identifies flag officers known to embrace Massengail’s evil nature.

Massengail’s is a severely practical and vicious mind. The power, design, dim and vague patterns found in all courts-martial are sinister its products.

To Massengail, Soldiers and Marines like Ray and Larry are no more than firewood–to be cut down, cut up, stacked, then burned in sacrifice to Defense Department interests.

Michael Steele, Ray’s commanding officer, entered Iraq with gloves off. Steele’s command climate and battlefield antics in early 2006 renewed and darkly redefined the one-time motto: “An Army of ONE.” As Steele’s combat antics drew closer to public attention he became a frightening threat to the Massengails then officed in the Pentagon who perceived the potential of serious harm to BIG ARMY’s image.

Micahel Steele was an overreaching, careless, and incompetent infantry combat commander. Movie star Steele will appreciate more than most the movie metaphor comparing Steele to the Nick Nolte character in The Thin Red Line.

Author Anton Myrer used Massengail to symbolize the abuses of the military discipline system whereupon men like Massengail are the predators, and soldiers like Ray Girouard become the prey. It’s in this atmosphere that Massengail wished–after promoting to flag rank– that his last name had been Marshall.

General Courtney Marshall.

General “Court” Marshall.

Coming to an understading regarding the personality and motives of emperors like Court Massengail is to completely appreciate why Ray Girouard is locked up at Fort Leavenworth this Christmas time.

When Michael Steele became a threat to the Army’s public image he had to go!

BIG ARMY’s “Steele dilemna” soared to critical damage control status when Steele’s standing order to “KILL ALL MILITARY AGE MALES” found its way to print journalists.

Movie star Steele was too high profile a personality to court-martial, so Ray’s court-martial was used as the vehicle to obstruct and divert public attention. Ray and his men were courts-martialed in a subterfuge combat action, while behind the scenes, Steele was quitely stripped of his infantry battalion combat command, removed from the battlefield, removed from Iraq, then ushered out of the Army.

Any number of combat actions could have been singled out, used as a cover-story to call attention away from Mike Steele. But Ray and his men–unfortunately–won the Massengail lottery. Ray’s name, like Hutchins in the Camp Pendleton Eight circumstance, was plucked from the hat with the pleasure, amusement, and relief men like Massengail experience with the infliction of wrongful suffering upon innocent subordinates.

Massengail’s crimes against Ray and his men are crimes of passion ever after on display.

Massengail’s guilty memory is recorded in the preliminary records leading up to Ray’s bogus disciplinary hearing. We’ll begin profiling “Massengail’s memories” in Part III of this series.

Editor’s Note: SSG Ray Girouard is serving time at Fort Leavenworth, as are two of his men, for charges that they executed detainees they captured during combat operations near Samarra, Iraq. For those who have followed this case, the amount of corruption and falsification by the prosecution and Army leadership defies reason. Now, for the first time, the true story behind the story. Originally published at The Jaghunter, written by retired LCDR Walter Fitzpatrick III, USN.

Steele’s March, Part I

America’s courts-martial scheme is burdened by a grim reputation. Experienced readers of courts-martial records become conscious always of power and design. In the series of courts-martial surrounding Operation Iron Triangle (9 May 2006), these distinctive factors quickly emerge from the shadows as a ship emerges from dense fog.

Army Ranger — Staff Sergeant Raymond L. Girouard is being punished without a jury trial for crimes he never committed.

Courts-martial records are full of obvious things which nobody by any chance ever observes. In consequence of reading yesterday some of the earliest Iron Triangle reports the diabolical government agency that acted against Ray and Ray’s men took immediate shape and became coherent.

JAG-knifed, Ray Girouard pays with his life for Michael Steele’s avarice of rank and audacity.

Colonel “Black Hawk Down” Michael Steele was commander for Iron Triangle and Ray’s commanding officer. Steele is a man of reputation.

The small mysteries attendant to the Iron Triangle investigations and discipline hearings are quickly undone with exposition of Steele’s unique command climate and Steele’s own personal rules of engagement (ROE).

Forty-four people died during the IT operation. Army officials buried all the bodies in a tomb of classified records.

Steele–a disciple of Civil War General William T. Sherman–crafted an ROE that employed a system of urban infantry warfare fully expressing the power of the U.S. government designed to force the Iraqi people to succumb.

The quicksand foundation in the conduct of the preliminary investigations and in the Article 32 hearing does not support the weight of any of the subsequent IT courts-martial. Instead the hidden hands of government intent are exposed. Ray and his men were picked to protect and shield with their freedoms and their lives the IMAGE of the U.S. Army.

Steele was commanding officer, 3rd Battalion, 187th Infantry Regiment, 3rd Brigade Combat Team, 101st Airborne Division (Air Assault).

Ray’s court-martial, as all the others, were command performances of the 187th Infantry Regiment. These were “family affairs.” Nathaniel Johnson, Jr. was Steele’s boss. It was Johnson who ordered the Article 32 investigation into being.

Johnson ordered James P. Daniel to sit as the Art. 32 hearing officer.

Daniel’s duty as hearing officer to the formal Art. 32 was to impartially find and report facts.

But Daniel expanded his authority as impartial fact-finder role to become in addition, a combination military detective and prosecutor.

Daniel’s subsequent activities rendered his own Art. 32 investigation, along with Ray’s court-martial (and all the others) not just voidable, but void. All of the IT disciplinary hearings are nothing…as if they never occurred.

Daniel’s formal Art. 32 commenced at 1850 hours (6: 50 p.m. local), Tuesday evening, 1 August 2006 in theater Iraq with all attorneys and other actors present.

Nearly two-hours earlier, at 1700 hours (5:00 p.m. local), James Daniel met privately, one-on-one, with suspect Michael Steele. There were no attorneys present. Daniel’s purpose at this pre-Art. 32 gathering was to issue to suspect Steele his formal rights warning regarding the events surrounding the IT operation. Daniel would have interviewed Steele had Steele agreed to waive his protections.

Daniel met also with six other Iron Triangle suspects to read them their protections and conduct interviews had these men been amenable. Daniel met with suspect Daniel C. Hart at 1649 hours, that Tuesday afternoon, with Eric J. Geressy at 1650 hours, and later that night, after the Art. 32 shut down for the evening, with suspect Leonel Lemus (2253 hours).

Daniel met with Micah B. Bivins, Kevin A. Ryan, and David A. Neuman. The date and times of these three encounters are not listed.

The scope of Daniel’s criminal conduct here is extraordinary. None of these seven meetings were attended by any attorneys. NONE OF THEM!

There’s more.

In the first thirty-minutes of the Art. 32 starting that Tuesday night, Mr. Michael Waddington (civilian defense counsel for defendant William Hunsacker) asked James Daniel, “Do you know Colonel Steele?”

Daniel answered, “I’ve met him. I don’t know him.” Daniel continued, “We’re not friends,” I’ve never worked with him.” Of course, at this moment in time and place, there was a squad of attorneys in the room, representing among them myriad interests.

The Article 32 hearing officer–Army Lieutenant Colonel James Daniel–openly lied in an open gathering. Daniel’s lie is one of the keys that unlocks the door to Ray Girouard’s prison cell.

Daniel’s contact with suspects before and outside the formal Art. 32 hearing room constitutes witness intimidation and witness influencing/tampering.

Daniel’s willful dissembling constitutes a great deal more.

Time is not a friend just now so I’ll have to pick up this narrative beginning next Monday. Stay tuned…to be continued.

The Marine Times reports that starting next month, our troops will need to visit a judge for a warrant when wishing to search a home or arrest an individual. Gone is the blanket protection they needed to catch terrorists–now they need to consult Iraqi officials that are often as corrupt as the terrorists we’re trying to catch.

For nearly six years, American troops have been free under a U.N. mandate to search any home and detain anyone deemed a security risk.

All that changes next month, when the mandate expires and a U.S.-Iraqi security agreement takes effect. From then on, troops must obtain Iraqi warrants for searches and arrests — and U.S. officers say the requirement is one of the biggest headaches in complying with the new rules.

This turns combat operations into a paper-based bureaucracy game.

The U.S. military is about to face the same rules. The security pact states that as of Jan. 1, American troops may not search homes or make arrests without warrants “except in the case of active combat operations.” [...] For the U.S. soldiers, that means spending a lot of time at the copy machine as they try to organize the warrants already held by the Iraqis, said Smith, 29, of Norman, Okla.

He acknowledged that the system will take some getting used to.

“Their system is very paper-based, whereas we like to have it all in an Excel spreadsheet,” he said, standing in his base office underneath a strategic map and a red Christmas stocking hung on the wall.

All this time I thought we were fighting a war. Apparently we’re just playing real-life Dungeons and Dragons. This disgusts me.

Turns out Iraq’s new justice system is a lot like the American military one.

Iraq is failing to give criminal suspects fair trials and abuse of prisoners appears common ahead of the transfer of thousands of detainees from U.S. prison camps to Iraqi control, a human rights group said on Monday.

What? Unfair trials and abuse of prisoners? Check. We have that too. Look at the Hutchins, King, and Girouard cases, for starters.

Human Rights Watch said prisoners had to wait months and in some cases years before being brought before a judge.

Lack of speedy trials? Check. Sgt Larry Hutchins waited over a year before his case went to trial. He was confined in solitary almost that entire time.

They also received ineffectual legal counsel and judges frequently relied on testimony from secret informants or confessions likely to have been extracted under torture or duress, the New York-based group said in a report.

Ineffectual legal counsel and questionable “confessions?” Check! The NCIS routinely engages in “interrogations” of American troops lasting up to 14 hours with no food, water, bathroom breaks, or reprieve.

I suppose it’s what we can expect, considering the Iraqi justice system is supposed to be more like ours now.

The Huffington Post has an article up titled “A History of Music Torture in the ‘War on Terror,’” and it’s right up there for some of the most idiotic spew I’ve ever seen. The words “music” and “torture” together are funny anyway, but their tales of mental anguish borne by detainees forced to listen to music they don’t like rank far beyond stupidity.

Describing how he experienced music torture “on many occasions,” Ahmed said, “I can bear being beaten up, it’s not a problem. Once you accept that you’re going to go into the interrogation room and be beaten up, it’s fine. You can prepare yourself mentally. But when you’re being psychologically tortured, you can’t.” He added, however, that when music was introduced, at the end of 2003, “It makes you feel like you are going mad. You lose the plot and it’s very scary to think that you might go crazy because of all the music, because of the loud noise, and because after a while you don’t hear the lyrics at all, all you hear is heavy banging.”

Poor Ahmed. The trauma he endured must have been incredible. Life-changing. Scarring, even. [Just in case you haven't figured it out yet, my sarcasm meter is off the charts.]

What kind of music counts as “torture” these days?

# “F— Your God,” by Deicide
# “Bodies” by Drowning Pool
# “Enter the Sandman” by Metallica
# Eminem’s Slim Shady album
# Meat Loaf
# Aerosmith
# 2Pac, “All Eyez On Me”
# “Babylon” by David Gray (which, by the way, is a beautiful song performed on acoustic guitar.)

The amusing thing is, with the exception of Deicide, Eminem and 2Pac (all classless and talentless acts), I own this entire list. I listen to many different kinds of music, and my music is going while I sleep, while I work, read, study, eat, and just about any other time except when I’m watching TV. In other words, pretty much 24-7. I don’t think it’s torture. But these animals apparently do.

Naturally, the normal lefties in the music biz have all come out to throw stomping-foot fits about their music being used in such a “barbaric” manner. While I’m sure my dad, a Christian pastor who once grounded me for owning a copy of Van Halen’s 5150, would agree that having to listen to metal for hours or days on end would be something he’d do nearly anything to avoid, I’m fairly certain he wouldn’t consider it torture either.

Not every musician is a frothing-at-the-mouth liberal, however, and there was some sanity in the comments made by a member of the band Drowning Pool, as well as others interviewed.

Bob Singleton, who wrote the theme tune to Barney the Purple Dinosaur, which has been used extensively in the “War on Terror,” acknowledged in July that “if you blare the music loud enough for long enough, I guess it can become unbearable,” but refused to accept that there were any circumstances under which playing music relentlessly at prisoners could be considered torture. “It’s absolutely ludicrous,” he wrote. “A song that was designed to make little children feel safe and loved was somehow going to threaten the mental state of adults and drive them to the emotional breaking point?”

Indeed. So let’s take stock here. Waterboarding? No, can’t do that. Denying them clothing? No, that’s torture (for the guards, maybe). Sleep deprivation? Shame on us for even thinking it. Music? No! Rage Against the Machine’s singer says it’s “barbaric.”

So what, pray tell, are we allowed to do to terrorists to elicit information that will save American lives? No one on the “anti-torture” side has come up with a good idea yet. When they do, let me know. While they’re at it, let’s see if they can come up with a way to get the detainees to stop throwing their feces and trying to attack the guards while hiding behind their “religion.” Until then, I’ll be blasting Avenged Sevenfold in my earphones–with a smile, in hopes that somewhere, some detainee is listening to the same song.

Sgt Jermaine Nelson pled not guilty last week to charges that he killed one of four detainees in Iraq during the Battle of Fallujah in 2004.

Nelson, one of Sgt Jose Nazario’s men, refused to testify against his sergeant when Nazario was on trial in civilian federal court for charges relating to the same incident.  Nazario was found not guilty of the charges by a civilian jury who were appalled and upset that they were asked to sit in judgment of actions carried out by soldiers in one of the bloodiest battles of present-day American military conflict.  Nelson and his fellow Marine, Ryan Weemer, were twice imprisoned for contempt of court for refusing to testify.

The question begs asking–if Nazario was found not guilty, how is it that Weemer and Nelson are still on trial?  Why are we even having this discussion?

Captain Roger Hill and his first sergeant, Tommy Scott, are the two latest victims of the military justice system.  They are charged with war crimes, dereliction of duty, and more after an incident where the government says Afghan detainees were abused.  Let’s look at the government’s version of “abuse”:

Members of his unit allegedly slapped Afghan detainees, and Hill himself is said to have fired his pistol into the ground near blindfolded Afghans to frighten them.

Even the embedded journalist writing the story says it is “hard…to condemn” the two soldiers for doing their jobs.

The evidence against these detainees was “incontrovertible,” say several intelligence officers.  They were definitely terrorists.  Hill and Scott did what they had to do in order to get information that would allow their men to return home to their families in one piece.  But of course, our nation doesn’t allow the troops to do that anymore.  Our government would rather that we look good to the global community, that we keep our testicular fortitude safe where we can’t use it, in a glass case at the U.N. Headquarters.

They weren’t cutting the terrorists’ genitals off and stuffing them in their mouths.  They weren’t burning them with cigarettes and carving pieces of flesh off.  They certainly weren’t raping them over and over, they didn’t behead them, set them on fire, or hang them from meathooks in public places.  Let’s see…who does that?  Oh, yes.  The terrorists they were questioning.  That’s right.

For those pseudo-intellectuals who will pontificate about how we’re “taking the high road,”  how we have to “act better than the enemy,” I offer this cold, hard fact.  There is no “high road” in war, only a winner and a loser–only a road of alive troops, and dead ones.  The Special Forces, Rangers, Navy SEALs, and other special warfare organizations have long known and operated under the basic fact that if you find yourself in a “fair” fight, you have already lost.   The public and the media think we are playing tiddlywinks in the Middle East, instead of fighting a bloody, gut-wrenching war resulting in death after death of our troops because of American leadership–or lack thereof.  Hill and Scott are simply two more pieces of wood to fuel the fire that is the new–and nutless–America.

Something’s horribly wrong here.  ER will keep you posted on this case as it moves forward.

This article from Israeli paper Haaretz outlines some new changes that are quite interesting.

In accordance with the new reform, more than 20 different military edicts on disciplinary action will be combined into one clear, comprehensive order. Officers will be required to study the disciplinary rules and will be tested on their knowledge when they receive a new rank, up until the rank of colonel. Complaints against soldiers must be submitted within a week, and soldiers must be tried within 15 days from when the complaint was submitted.

Israel apparently has some of the same problems with their system that the U.S. does.

A similar but more limited reform in the sentencing powers of commanders was made in 2004. However, the military prosecution found in a follow-up that the number of soldiers being sentenced had not dropped in the past four years. On the other hand, a large number of distortions of justice were found; accused were sentenced for offenses they were not responsible for and harsh punishments were imposed that the sentencing officers did not have the authority to hand down. The supervisors from the military prosecution had to intervene in 57 percent of the 1,352 cases brought before them in 2008, and in 21 percent of the cases it needed to annul or mitigate the punishment. (emphasis added)

Sgt Lawrence Hutchins III sits in the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, wrongfully convicted of manslaughter. His case is one that made worldwide headlines in 2006, and continues to set records for the amount of corruption and dishonor involved in putting this amazing Marine away for over a decade–all because he did his job.

There are those who have worked to free him, and continue to do so even now, almost three years after the incident in Hamdania when seven Marines and a Navy Corpsman ended the life of a terrorist responsible for many deaths.

There was to be a lawsuit filed in federal court regarding the practice of attainder (pre-trial incarceration), and addressing the Feres Doctrine (the reason the government cannot be sued by private citizens). A former Marine officer and defense attorney was to represent certain concerned parties involved with the Hutchins case. He was forced to retire by the Marine Corps after his outspoken condemnation of the treatment of the Pendleton 8, Haditha Marines, and the corruption so rampant in the military justice system.

For those trying so hard to free Sgt Hutchins, the last of the Pendleton 8, the idea of a day in court was the Holy Grail. We would be able to finally present exculpatory evidence that was blocked from Hutchins’ trial, including multiple counts of perjury on the part of the NCIS “investigators.” Also present would be proof that attainder is unconstitutional, as are the methods used to interrogate our troops.

Unfortunately, our chance to be heard was thwarted by Gen. David Brahms, the former head JAG for the Marine Corps. Brahms was retained by a member of the Pendleton 8 as a civilian attorney during the investigation and subsequent courts-martial. His ongoing connections–and his arguable involvement–in the corruption used against the Pendleton 8 resulted in plea deals being taken by men who had done nothing wrong.

The plans for the lawsuit were a quiet affair for obvious reasons, shared only on a need-to-know basis while the filing details were finalized. However, Brahms found out about the plans, and within 48 hours had met with our attorney in private. While the details of the meeting remain unclear, the fact remains that this attorney removed himself from going forward with the suit. He is currently working to provide us with a list of other attorneys willing to take the case, but at this time the plans to argue on behalf of Hutchins have been stalled.

Those of us fighting for justice for Hutchins will not stop until his freedom is realized.  In the meantime, an honorable man, an incredible squad leader, and a stellar Marine sits in Leavenworth, a prisoner of the very government he would have given his life to defend.

by John Browning for Dallasblog.com

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% 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 January 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 twelve 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.”

by John Browning

With its rich wood paneling, guest gallery, and polished Olympus of a judge’s bench, Courtroom No. One in the federal courthouse in Riverside, California was unlike any battlefield on which former Marine Corps Sergeant 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 of 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 twelve civilian jurors in a Riverside, California 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’ recollection. 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 8 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, California, 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 an 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

This article was originally published at Dallasblog.com.

The Blackwater 5 case is making headlines as the newest group of scapegoats to be roasted over the coals by the U.S. government.  Using the Military Extraterritorial Judicial Act (MEJA), the five men–all prior military with combat experience and stellar careers–were charged under a 35-count indictment for their role in the deaths of Iraqi “civilians.”  Absent in every news story on the case is the basic fact that terrorists are also civilians, but facts never did stop the mainstream media.

The interesting legal questions in the case are legion — such as venue (the reputedly conservative Salt Lake City vs. D.C., which may be less sympathetic to the Iraq war and Blackwater?), and the proper reach of the of the Military Extraterritorial Jurisdiction Act (are the guards “contractors” for purposes of the law?).

But even if prosecutors get their wish on the venue issue, and even if a judge agrees with their construction of the MEJA, they’ll almost certainly face an uphill battle if the case sees trial.