Euphoric Reality

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.

Tonight (9/4/08) at 2100 EST/1800 PM PST, I’ll be talking to Colby Vokey, a former Marine officer and high-ranking JAG attorney about his recent retirement from the Marine Corps.  Tim Harrington will be on as well, and we’ll be discussing the following:

- Why the recent “not guilty” verdict for Nazario was so important, and what it means for the future of the military legal system.
- What ‘attainder’ is, and why it affects our fighting men in uniform.
- What goes on behind the scenes in the military legal system.
- Why the Marine Corps retired Vokey, a long-time servant of his country, against his wishes.
- MUCH MORE!

Don’t miss this show!  We’ll be taking your calls at 646-915-9926.

You can listen to the show live at http://blogtalkradio.com/frontline so make sure to tune in!  TONIGHT, 2100 EST, on The Front Line.

Note: The following is Part 1 of a series explaining why the military justice system needs to be abolished, and the Armed Forces judged based on Constitutional law instead of the Uniform Code of Military Justice.

Last week marked the “end” of a two-year ordeal for former SGT Jose Nazario and his family.  I use quotes there because in reality, the nightmare is not over.  Charged with executing prisoners during the Battle of Fallujah, Nazario was the first former service member to be tried under the 2000 Military Extraterritorial Jurisdiction Act.  It’s a common misconception that once a “not guilty” verdict or plea agreement is reached, that everything suddenly “poofs!” back to normal, back to the way things were before all of the insanity tore it apart.  In reality, Jose Nazario is still without employment, as he was fired from his position as a police officer.   Whether he will get his job back remains to be seen.

It’s another common myth that the government screwed up by putting Nazario’s case before a civilian jury, that the idea of asking non-military personnel to judge the actions of Marines in combat is asinine.  However, if past track record of the last few years is any indication, a military court-martial would have sent Jose Nazario, a husband and father, to Fort Leavenworth for the next decade of his life.  I say this in all confidence, for there are currently quite a few soldiers and Marines,  just like Nazario, whose address is 1300 N. Warehouse Road, Ft. Leavenworth KS for the next nine years or more–simply for doing exactly what Nazario did: perform their jobs to the best of their ability.

While many Americans applauded the Nazario verdict, few understand just how important it was.  Few comprehend the gift those twelve jurors gave to not only Nazario, but to Lawrence Hutchins III, Ray Girouard, Corey Clagett, and WIlliam Hunsaker, to name a few.  The list of honorable soldiers and Marines thrown under the bus by overzealous investigative services and corrupt commands is growing longer by the month.  Some, like LCDR Walter Fitzpatrick III, have been waiting nearly twenty years for this moment.  By stopping the government’s ongoing wrongful prosecution of combat actions as murder and manslaughter, Nazario’s jurors opened a door that has been closed and locked for decades.

Why is Nazario’s verdict so historic?  Why is it anything more than a ripple in what has become a commonplace practice–that of American fighting men on trial for killing the enemy?  The answer is more shocking than you might think.

The Military Extraterritorial Jurisdiction Act of 2000 is a “little known law” that was intended to cover dependents and contractors who commit crimes overseas, outside of American jurisdiction.  MEJA gives the American government the right to hold Americans accountable for their actions no matter where in the world they live.  Unfortunately, it also has a very sinister ability as well.  Under MEJA, there is no statute of limitations.  This means that your 90-year-old grandfather, who fought the Japanese with his bare hands at Iwo Jima, can literally be charged tomorrow with war crimes and dragged into federal court.  Veterans of Normandy can be tried, as Jose Nazario was, for “use of a weapon to commit a felony,” even though the “felony” in question was killing of the enemy during established combat operations, and the “weapon” mentioned was his government-issued rifle.  In true government hindsight, MEJA’s authors never intended for the law to be used to punish those who fight our wars.

“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,” Senator Jeff Sessions told the AP. “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.” [emphasis added]

Sessions is merely stating what those of us mired in these cases have been screaming for literally years: This is not how it’s supposed to be.

Gary Solis, the military law “expert” that all the media run to for comments on these cases, sounds as though he’s beside himself in condemning Nazario’s case being tried federally.

“[The not guilty verdict was] a very reasoned response from those jurors because they apparently recognized this was not something they were well-suited to determine,” he said.

Rear Admiral John Hutson, himself well-known to those of us who have studied these cases, disagrees with Solis, commenting that “How many jurors have been involved in a domestic dispute in which a person was killed. None. You don’t put those people on a jury.”  Jury Selection 101.

On its face and with no real thought involved, Solis’ argument makes sense.  However, let us consider the aforementioned track record.  Since 2003, when Army captain Roger Maynulet put a mercy bullet in a mortally wounded insurgent after the insurgent tried to run his checkpoint with an explosive-laden car and was shot by Maynulet’s men, there have been more of these cases than even the public knows about. Without exception, these men’s lives have been forever altered at best, and ruined at worst.

They are representative of the diversity that America’s fighting forces have to offer: an Italian from New York City, an Irish guy from the Boston area, a kid from the Kentucky backwoods, a quiet young man from rural eastern Washington State, a Tennessean who made his hometown proud.  All of them had raised their right hand and swore to defend the Constitution with their lives.  The Constitution–not the government, not the politicians, not the status quo.  A document that is the foundation of all that we have been given, and all that we believe in as Americans.  To those men, the rights in those worn pages are worth dying for–and killing for.  They would have done the first if they could not do enough of the second, but as Patton himself said, the point is to “make the other poor bastard die for his country,” not for you to die for yours.

All of them had their lives and careers interrupted, thrown into confinement so brutal that human rights groups would never allow our enemies to undergo it.  Food and medical care for combat injuries were withheld, families were threatened, and in the case of the Pendleton 8, their pay was even stopped–without a conviction.  When the men finally saw a courtroom–in some cases, after two years of solitary confinement–the prosecution’s case was almost always the same.  No dead bodies, no forensics, no positive ID of any “victims,” no other evidence that even proved anything had happened at all, let alone an episode of “Squad Leaders Gone Wild.”  In case after case, the only things the government had to offer were NCIS “work product,” statements drawn up by agents based on notes and their own memories after 18-hour interrogations that denied food, water, and even bathroom breaks.  The men were threatened with everything from losing their families and careers to the death penalty.

In the Pendleton 8 case, five of the men folded and pled guilty after it became apparent that the Marine Corps was willing to do anything to convict them.  Three went through a court-martial.  Their squad leader sits in Fort Leavenworth today, sentenced to 11 years for killing an insurgent, dropping the terrorist activity in his area, and leading his men home safely.  In the Haditha case, six out of the eight Marines charged are free, having their charges either dropped or having been acquitted.  Even in the face of this, however, the squad leader is still charged, and prosecutors intend to pursue charges against the commanding officer all over again.  In the Iron Triangle case, plea agreements went out across the board as well–to everyone but the squad leader, who also resides at Fort Leavenworth.  This is the fate that awaited Jose Nazario, leader of Marines.  It is no coincidence that the sole holdout on his jury was also the only one who had military service–a former Navy man who said he wanted to convict just to “show the military that they are not above the law.”  Why did he end up voting not guilty?  He couldn’t find any evidence saying the government had proved its case.  Such is the protection of the Constitution.

The pattern becomes apparent very quickly: There is an iron curtain that exists between the squad leader and his command.  In earlier years, officers were expected to stand by their men.  Indeed, General James Mattis himself a few years ago, when questioned by the press about an incident, simply said that he did not have to defend the actions of his Marines.   Oddly enough, Gen. Mattis later was responsible for the confinement of the Pendleton 8 in conditions some of them still have not fully emotionally recovered from.  The Army Rangers of the Iron Triangle case were set up by their commanding officer, LtCol Michael Steele (of Black Hawk Down fame), who successfully dodged any attempt by the defense to make him testify about the orders given before the team’s fateful mission.  [Video and audio of the speech he gave, exhorting his men to not take prisoners, somehow never made it into the record.]  Even Nazario got his orders from an individual higher up who managed to remain nameless even through a trial.  Either the military has suddenly become rife with enlisted men “gone wild,” or their commands are making quite sure the buck stops long before it reaches anyone with shoulder rank.

Until U.S. v. Nazario, the military was able to hide the way they actually investigated and prosecuted the cases.  The convictions were what mattered anyway, and the public readily gobbled it up when the press likened Article 32s to a grand jury proceeding, and a court-martial to a trial.  They’ve even taken to calling the panel a “jury.”  The only problem is that none of these is even remotely correct, and the errors have contributed to a very real misunderstanding of what our fighting men face in the military legal system.  In the cases I mentioned above, those errors resulted in ruined lives, careers, and the dishonoring of three generations of one Marine family.

In Part 2 we will examine how the military justice system actually works, what attainder is, and what the Constitution has to say about it.  Tune in to The Front Line on Thursday, Sept 4, 9 pm EST, when I talk to recently retired Marine JAG LtCol Colby Vokey and independent investigator Tim Harrington about the Nazario case and what was really at stake.

Note: I had accidentally misspoken in the article and stated that seven of the eight men in the Pendleton 8 took a plea deal.  That was incorrect and has been edited to reflect the actual numbers.  Thanks to Don Greenlaw and Terry Pennington for catching the error for me.

RIVERSIDE, California (AFP) — A former US Marine was acquitted of manslaughter here Thursday in the shooting deaths of unarmed Iraqi prisoners during 2004 fighting in Fallujah.

Jose Luis Nazario, 28, was found not guilty of all charges after a landmark trial at the US District Court in California, southeast of Los Angeles.

The case was the first time a former serviceman had been tried in a civilian court for actions taken during combat.

What was the key here?

However the prosecution’s case was weakened after the two subordinates — Marines Jermaine Nelson and Ryan Weemer — refused to testify against Nazario last week and were declared in contempt of court.

My undying and total respect go to Nelson and Weemer for standing up for what they believe and hanging in there.  One victory in the neverending fight.

This nightmare isn’t over, however.  Now we move to the courts-martial for Nelson and Weemer.  First up are their contempt charges later in September.

It’s all a waiting game now.

“If you find the defendant did not abide by the rules, no matter how he might have fought or how many days he spent in the military, if he violated the `law of war’ that day, you have a duty to find him guilty,” Assistant U.S. Attorney Jerry Behnke said during his closing argument.

Nazario’s attorney, Kevin McDermott, told jurors they could not convict the former Marine sergeant of an alleged crime in which there were no bodies, no identities and no forensics.

“The government has fallen woefully short” with its case, McDermott said in his closing argument, hours after the defense rested without calling a single witness. [...]

The defense argued that a guilty verdict would only make service members second-guess their actions in combat.

“Don’t make the job harder on those young men,” McDermott said.

The case of a former Marine NCO charged with murdering Iraqis during the Battle of Fallujah is getting crazier by the minute.

Sgt. Jose Nazario’s men, Ryan Weemer and Jermaine Nelson, still refuse to testify.  After being thrown in jail twice for contempt, the two men continue to invoke their 5th Amendment rights and refuse to take the stand.

Today Cory Carlisle, a fellow squad member, testified about the incredible amounts of enemy fire Nazario and his men were dealing with in Fallujah.

Meanwhile, a civilian jury gets to Monday-morning quarterback the fiercest battle involving U.S. forces in decades.  The L.A. Times reports that “Only one of the jurors has military experience, a stint in the Navy a decade ago.”  Isn’t that awesome?

Stay tuned.

What do you do when you can’t get Marines to testify against each other, can’t get them to take a deal, and generally have no case? Why, up the ante, of course.

A federal grand jury is considering amending charges against a former Riverside police officer from manslaughter to murder for killings while he was a sergeant in Iraq, a defense attorney said.

Jose Luis Nazario Jr. is charged with voluntary manslaughter in U.S. District Court in Riverside — because he is no longer in the military. But prosecutors are now asking a grand jury in Riverside to change the charges to murder, said Kevin McDermott, one of the attorneys representing Nazario.

Assistant U.S. Attorney Jerry Behnke said he could not comment on whether the grand jury is reviewing the case or why the prosecution would ask for charges to be amended. Grand jury proceedings are closed to defense attorneys and the public.

Of course he’s not going to comment on why they would be amending the charges to read murder instead of manslaughter. What would he say? I can see the press conference now.

“Well, folks, this whole process isn’t going the same as the others. There’s an order to this whole thing. See, first we charge them all, even though we have no evidence. Then we confine them in ungodly conditions…what’s that? Oh god, no. Not like detainees. Those guys at Gitmo are living fat and happy. We’re trying to break these Marines, not coddle them. Stop asking stupid questions.

“Anyway, usually after about 18 hours of interrogations with no food, water, or bathroom breaks, a few months of shackles and solitary confinement, they’ll sign anything we ask. Yes, we’ve done it before, we know it works. But these Marines, they’re being a bit uncooperative. Nelson refused to testify even though we put him in jail over Memorial Day weekend, we had to pull him out of jail because the milblogs made a bunch of ruckus about the whole thing. Nazario’s refusing to plead guilty…it’s just ridiculous. Don’t these guys know they’re supposed to play along? Well, we’re just going to remind Nazario of what’s at stake here. He’s got a family. We’ve got Mattis on board, he’ll testify against the Marines. But anyway, the short answer to your question of why we decided to bump it up is obvious–we have to bring in the big guns. We have nothing unless we can either get them to plead guilty, or get someone to roll.”

This is breaking in the Nazario Case:

Marine Sgt. Jermaine Nelson, jailed in Los Angeles last week for contempt of court for refusing to testify against his former squad leader, was released Thursday after promising to attend a grand jury session and listen to questions.

Joseph Low, Nelson’s attorney, said his client promised U.S. District Court Judge Percy Anderson that he would attend a June 18 session of a grand jury probing the alleged killing of prisoners by Marines during the fight for Fallouja in late 2004.

But Nelson did not promise to provide information about former Sgt. Jose Luis Nazario, Low said. “I did inform the judge [that] nothing has changed except our willingness to listen,” he said.

Anderson had Nelson jailed last week when, despite receiving immunity, he declined to answer questions about “a brother Marine.” Low said Nazario had saved Nelson’s life in Iraq.

We’ll be paying close attention to this as it unfolds. I can’t help but wonder if milblogger coverage of this travesty helped contribute to Nelson’s release. As always, stay tuned to ER for up-to-the-minute coverage.

Interesting turn of events yesterday in the Fallujah case. This from Newsmax:

A Marine facing charges for killing an insurgent prisoner in Fallujah, Iraq, 3 1/2 years ago has been jailed for refusing to testify against another Marine involved in the incident.

U.S. District Judge Percy Anderson on Wednesday ordered Sgt. Jermaine Nelson to be confined at the federal lockup in Los Angeles after giving him several opportunities to testify.

“It was a beautiful thing to see,” said lawyer Joseph H. Low IV, a former Marine infantryman representing Nelson.

“The prosecutors are attempting to break the bonds formed in combat. Nelson told them he’d rather go to jail than rat out a brother Marine.

“It is coercion pure and simple. The government wants to take these guys and try to make them say what they want them to say. The government doesn’t have a case so they resort to this.”

Nelson, 26, refused to testify against his former squad leader, Sgt. Jose L. Nazario, at a federal grand jury seated in Riverside, Calif., Low said.

Nelson was granted testimonial immunity by federal prosecutors seeking to enhance voluntary manslaughter charges against Nazario to murder. If he had cooperated, Nelson would have been protected from further jeopardy for anything new he revealed in the case, according to Low.

Nazario was indicted by a federal grand jury two weeks after being arrested on Aug. 7, 2007. He is charged under the Military Extraterritorial Jurisdiction Act, passed by Congress in 2000 to allow service members serving overseas to be prosecuted in civilian court for offenses that call for more than one year of imprisonment.

The prosecution wants Nelson to tell the grand jury what happened at Fallujah on Nov. 9, 2004, when his squad encountered four enemy combatants during the opening hours of the bloody month-long battle for the ancient city.

Nelson already faces up to life in prison and a dishonorable discharge for twice confessing without legal counsel that he killed one of the insurgents after being ordered by Nazario to do so.

In his confession, Nelson claimed Nazario received the order to kill the prisoners from an unknown superior over his inter-squad radio.

Keep in mind that the government has no victims, no evidence, and literally NOTHING in this case except the testimony of one Marine who “confessed” twice without an attorney (sound familiar?) and a few statements that don’t match (I’m seeing a pattern here).

There are some amazing developments in these cases right now, and every one of them gives me hope that perhaps the Pendleton 8 case will be rectified once and for all.

From the LA Times:

Lawyers defending a former Marine accused of killing Iraqi prisoners during the 2004 battle of Fallouja have lost a bid to get the voluntary manslaughter case thrown out of court.

Attorneys for Jose Luis Nazario asserted that the civilian criminal system lacks legal authority over acts committed in a war zone. But U.S. District Judge Stephen G. Larson ruled this week that the law “prevents discharge from the military from serving as a shield to prosecution for crimes committed while in military service.”

Larson set a July 8 trial date for Nazario, who was a Riverside police officer when he was charged in the Fallouja case. Two active-duty Marines, Sgt. Jermaine A. Nelson and Sgt. Ryan Weemer, are also charged. Those cases will be handled in the military legal system. [emphasis added]

So Larson is already calling it a crime, already treating Nazario as a criminal, even though his sole duty as the presiding authority is to conduct a fair and impartial proceeding.

Then again, have we come to expect anything fair and impartial from the military “justice” system?

CAMP PENDLETON, Calif. –A hearing officer recommended a court-martial for a Marine charged with murdering an Iraqi detainee captured during fierce house-to-house fighting in Fallujah, Iraq.

Lt. Col. Thomas McCann said in his findings Wednesday that there is sufficient evidence against Sgt. Jermaine A. Nelson to order him to trial.

Nelson, 26, is one of three Marines accused of shooting unarmed captives in November 2004 during some of the heaviest fighting of the war. Nelson has said he was following orders from his squad leader, Jose Nazario Jr., who is also charged.

Sgt Jose Nazario is at the center of another case I’m following.  He’s charged with manslaughter in the deaths of insurgents during the Battle of Fallujah.  I realize how insane that sounds, but that’s where we are now in this nation.  We charge our Marines for killing the enemy.

The case is one of the first to be brought under the new MEJA Act of 2000, the law that says the U.S. government can “reach out and touch” anyone connected to the military for alleged acts, long after their term of service is over.

Nazario, who was serving as a police officer before his life was rudely interrupted by the NCIS (sound familiar?), is represented by Kevin McDermott, who has a very valid argument.

Attorneys for Nazario requested the case be dismissed, asserting that the law under which he was charged does not apply to combat — and that it’s not the job of the civilian courts and juries to examine combat actions.

You think?  I’m going to go ahead and ask the question that should be on everyone’s minds here.  if the Constitution affords us the right to be tried by a jury of our peers, what should make up that jury?  Seems to me that unless you have a jury of combat veterans, it’s unfair to both the jury and the accused.  Where would you find a group of combat veterans to serve on a trial?  Could it be…the military?  What a novel concept.  but I digress.

Defense attorney Kevin McDermott said a jury of civilians would have greater difficulty understanding the rules of engagement and war.

“Do we have the fundamental fairness to go through this scenario for Sgt. Nazario to have the best possible process?” he asked.

Larson compared the case to how a civil jury learns about police rules of engagement for an excessive-force case. He then asked Assistant U.S. Attorney Jerry Behnke about future consequences of a civilian ruling, as excessive-force cases are designed to affect how a police department functions.

Take note of that.  “Excessive-force cases are designed to affect how a police department functions.”  Let’s take that one step further.  “Excessive-force cases are designed to affect how a military conducts war.”

What’s the point of a war?  What absolutely MUST happen in order for one side in a war to emerge victorious?  You have to kill the enemy, break his will to win, and demolish his ability to fight.  So, with that in mind, is there such a thing as excessive force in combat operations?  Was there such a thing on Iwo Jima?  Corregidor?  The Philippines?  Bastogne?

No…but in Iraq there apparently is.  And then people wonder why we’re still there, why the casualty numbers keep trickling upward, why we can’t seem to WIN.  I keep having this conversation with my boyfriend, who’s a three-tour infantry vet, and there are days that I think he and I are the only two people who get it.

People can’t be charged as civilians for actions during combat while active duty, can they?

They can now. Say hello to MEJA.

With only mixed success prosecuting U.S. soldiers for alleged atrocities in Iraq, the U.S. government is now turning to a novel legal approach to try military veterans in U.S. civilian courts.

The first target is Jose L. Nazario, a former Marine named as the defendant in the case United States of America v. Jose Luis Nazario.

In August 2007, federal prosecutors filed the case in U.S. District Court in California, charging Nazario with two counts of voluntary manslaughter.

Nazario’s alleged crime is that while serving with the Marines during the November 2004 battle in Fallujah, Iraq, he shot to death two insurgent prisoners of war.

Sgt. Nazario left the military with an honorable discharge after eight years of service. The New York City native then moved to Riverside, Calif., with his family and became a police officer.

The Naval Criminal Investigative Service (NCIS) brought the charges to the U.S. attorney for Central California last summer, claiming Nazario is beyond the jurisdiction of military law.

He was charged under the Military Extraterritorial Jurisdiction Act (MEJA), a law passed by Congress in 2000 to give government prosecutors a mechanism for charging civilians and former service members for alleged criminal acts they committed while serving overseas.

Before MEJA, members of the armed forces were prosecuted under military law or not at all, and in many instances civilians who committed crimes in foreign lands were completely beyond the reach of American civilian jurisdiction.

I’ll be staying on top of this story as it progresses.