The Victorious Opposition

I did not get quite the same reaction you did in reading this story. I agree that the manner in which this guy is to be tried is suspect but it appears (yes, the story is incomplete like most of these stories and no, I don’t want to try him here) that wrong doing did occur and an inquiry into the matter was justified.

I would submit that:

1) Shooting unarmed prisoners is illegal.

2)Nobody is disputing that unarmed prisoners were indeed shot. Nazario is saying that he was ordered over the phone to shoot them, while Nelson and Weemer is saying Nazario ordered them to shoot prisoners. Nelson said he observed the other two shooting prisoners so he “lost his reluctance” and shot his as well, but all have admitted that ,yep, we shot them.

3)Unlike Haditha, where Marines were taking fire from a residence and went in to “clear” it with fragmentation grenades and weapons fire (these guys actually did resort to their training), in my mind it is cowardly to hide behind the façade of “resorting to our training” in justifying the shooting of unarmed prisoners.

4)The hearsay reliance here is troubling. They have no evidence, no eye witnesses (other than the participants rolling over on each other) nothing that can prove a crime was actually committed, so these facts alone will make a conviction more than difficult.

It would have been better for that dips hit Weemer to have kept his mouth shut in his interview, but let me just say that as a former law enforcement officer when bad cops do stupid shit, it made my job much harder and made me look bad in the process, and I wanted those evil doers removed from the ranks. No doubt the Marines, the proudest, meanest, and most lethal fighting force in history, would feel the same way. 99.9 of them go above and beyond, and would not want their character or their good name besmirched by even the appearance of any wrong doing, and shooting unarmed prisoners is wrong.

Again, I don’t know what happened but hope the truth will come out. And I feel sorry for Nazario who got fired from his job because of this. I am confident that Riverside will re hire him once this blows over.

Nobody is disputing that unarmed prisoners were indeed shot. Nazario is saying that he was ordered over the phone to shoot them, while Nelson and Weemer is saying Nazario ordered them to shoot prisoners. Nelson said he observed the other two shooting prisoners so he “lost his reluctance” and shot his as well, but all have admitted that ,yep, we shot them.

The way I read it, Nazario is saying that nobody was shot nor was he told to shoot anyone.  Here’s another story on it:

A former Marine sergeant accused of killing two Iraqi captives in a 2004 battle in Iraq said his squad fabricated the entire story.

Former Marine Sgt. Jose Luis Nazario faces manslaughter charges.

Jose Luis Nazario has pleaded not guilty to voluntary manslaughter charges brought by federal prosecutors in southern California. He left the service in 2005.

According to an affidavit from a Navy investigator, Nazario killed one prisoner and then asked his squad: “Who else wants to kill these guys? Because I don’t want to do it all myself.”

The prisoners—four men who had been captured in a house that was the source of hostile gunfire—were killed so the Marines could keep up with the rest of their unit in the early days of the November 2004 battle to recapture Falluja, the affidavit states.

But Kevin McDermott, Nazario’s attorney, said his client denies the allegations completely.

“They didn’t happen,” McDermott told CNN.

He called the charges “a fish story” that originated from a former member of Nazario’s squad who first made the allegations during a 2006 polygraph test the squad members took when applying for a job with the Secret Service.

“I think the government believes the story, and I think they’re interested in finding out who was on the other end of the line,” McDermott said.

But, the attorney insists there was no such call.

“That call never occurred,” McDermott said. “That’s what’s so crazy about this whole situation.”

Nazario absolutely denies killing prisoners or even being ordered to by anybody.

Furthermore, there is reason to doubt that anyone was actually shot.  Where are the bodies?  Who died?  Where did it happen?  This case is not going to fly if this is the best they have.

The way I read it, Nazario is saying that nobody was shot nor was he told to shoot anyone.

I found this.

“Defense attorneys might argue that the Marines did not have time to process the prisoners according to the Geneva Convention because they needed to rush to reinforce other Marines engaged in firefights.”

This would indicate that Nazario will admit to the shooting, but with mitigating circumstances.

Also, at the bottom was this:

“In January 2007, while under investigation by the Naval Criminal Investigation Service, Nelson agreed to telephone Nazario and ask leading questions so agents could tape Nazario’s responses.

According to court documents, Nelson asked Nazario if he should take a lie-detector test if asked about the killings. The documents provide a partial transcript, filled with often profane language.

Nelson: “I mean, we had the right orders, didn’t we?”

Nazario: “Yeah.”

Nelson: “Who gave us the orders though (expletive)?“Nazario: “That (expletive) is coming from the battalion commanders. We got to get from point A to point B and we ain’t got time to throw (expletive) on the truck ‘cause we moving.”

Later on, Nazario explains: “It was, you know, a decision we made because it was the outcome that’s the best. So it was, it was a decision. You can’t play Monday-morning quarterback, bro.”

Why wasn’t this guy subject to recall and trial under UCMJ?

Skipping over the question of whether there’s an actual case here - what is this doing in civilian courts? Is there any precedent for such a thing, even for crimes committed in US territory?

If there is a case here, his treatment under UCMJ would like be a lot harsher than under civilian jurisprudence. Correspondingly, since this happened (reportedly) in the heat of battle, a tribunal under UCMJ is going to be a lot closer to “jury of his peers” than a random civilian jury.

Either way you look at it - whether you think he did it, or whether you think he didn’t, UCMJ seems like the fundamentally right answer.

Why wasn’t this guy subject to recall and trial under UCMJ?

That’s what I don’t get. He should have been. My father retired from the USAF more than 15 years ago. If he was suspected of a crime, he could be reactivated and held in custody by the Air Force (admittedly, this is unlikely, but the UCMJ allows it). It would be much, much easier to reactivate Sgt. Nazario and prosocute him under the UCMJ.

A piece in the WSJ this morning fleshed out the case the prosecutors will present against Nazario.

Aside from the sworn statements the NCIS (Navel Criminal Investigative Services) has from both Nelson and Weemer (both refused to testify but are under arrest and will by tried under the UCMJ for the killings, there is this:

“According to testimony given to NCIS by members of Mr. Nazario’s squad—Mr. Weemer and fellow servicemen Jermaine Nelson and James L. Prentice—Mr. Nazario’s platoon arrived in Fallujah about 10 a.m. on Nov. 9, 2004. The platoon split into three squads that entered the city on foot.

Suddenly, Mr. Nazario’s squad heard gunshots coming from a two-story gated house nearby. The team entered the building through an unlocked door, Messrs. Prentice and Nelson testified, according to the NCIS transcripts.

There, the Marines found four men, presumed to be Iraqis, sitting on the floor: a middle-aged man and three men in their teens or 20s. They raised their hands over their heads, according to testimony by Mr. Prentice.

According to Messrs. Nelson and Prentice’s accounts, the Iraqi men told Mr. Nazario in broken English that they had no weapons. But a search turned up several AK-47 automatic rifles and ammunition, according to those interviewed by NCIS. “I could see that Sgt. Nazario was really upset,” Mr. Nelson told investigators. Mr. Nazario then struck one of the men, according to Mr. Nelson’s testimony.

Mr. Nazario denies this happened.

According to the testimony of Messrs. Weemer, Nelson and Prentice—who say they were in the room with Mr. Nazario at the time—Mr. Nazario used a radio to call for orders on what to do next. The instructions, Mr. Nazario told them, were to kill the prisoners, the three men say in their testimony. “We argued about it, and argued about it, and we had to move, we had to get out, and our unit was moving down the street,” Mr. Weemer says in the transcript of his testimony.

Mr. Nazario grabbed one of the younger men and took him into the kitchen, according to a signed statement by Mr. Nelson to NCIS. Mr. Nelson said he heard a gunshot and went to see what happened. “I saw that Nazario had shot him right in his eyeball,” the statement says. In an NCIS transcript, Mr. Nelson says Mr. Nazario then said: “Now, I’m not doing all this s- by myself,” and told Messrs. Nelson and Weemer to choose a victim.

Mr. Nazario denies this happened.

Mr. Nelson said he saw Mr. Nazario “shoot the older Iraqi in the forehead with his rifle.” Mr. Nazario says this didn’t happen.

Mr. Nelson says, in his statement, that Mr. Weemer shot another man in nearby room. Then Mr. Nelson shot the last man once in the back of the head, according to his statement to investigators.

Mr. Weemer and Mr. Prentice differ on who fired the first shot. In their statements, both said Mr. Weemer shot before Mr. Nazario did. “I just shot twice,” Mr. Weemer says in an NCIS transcript. “And I didn’t even look.”

Associated Press
U.S. soldiers conduct a house-to-house search in June after an early morning attack in Fallujah.
Startled by the gunshots, Lance Cpl. Samuel R. Severtsgaard, who was outside, came into the room and saw the bodies on the floor along with two disassembled AK-47s. “This is the only time we ever talked about it,” he said in a statement to NCIS. “We dropped it after that.” There is no evidence of wrongdoing by Mr. Severtsgaard or Mr. Prentice.”

This will definitely be a case worth watching.  Like the Hamdan tribunal, it is the first of its kind.