Another Railroad in the Making: Nelson Recommended for Court-Martial

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.

Judge in Fallujah Case Shows Bias Before Hearing Evidence

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?

Nazario: Fallujah Marine Jailed; Won’t Incriminate Other Marine

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.

Nazario Case: Marine Freed But Still Refuses to Testify

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.

Nazario: Honor in Action

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.

Nazario Case Goes to the Jury

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.

Bringing Down the Military Legal System, Part 1

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.

LtCol Colby Vokey to Appear on The Front Line TONIGHT

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.