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Ex-Marine Tried in Civilian Court for Wartime Crimes
By Lily Garza
September 3, 2008
When a trial began on Tuesday in Riverside, California, it was the first time that a former Marine has been prosecuted in a U.S. civilian court for crimes committed during active military duty. The prosecution is using an obscure law, passed in 2000, to try Jose Nazario for the killing of 4 Iraqi prisoners during a battle in Fallujah on Nov. 9, 2004. The official charges include voluntary manslaughter, assault with a deadly weapon, and discharging a firearm during a crime of violence.
The Military Extraterritorial Jurisdiction Act of 2000 was not initially designed to prosecute active military personnel. It was designed to allow the prosecution of civilians employed by the U.S. Department of Defense who committed crimes oversees while on official business. The act was meant to close a loophole that allowed civilians to escape prosecution because they are not subject to military laws or U.S. courts.
Nazario is being tried in this category because he had already returned to the U.S. and left military service when the investigation into the incident began. Two other Marine sergeants, Sgt. Jermaine Nelson and Sgt. Ryan Weemer, who are still on active duty, are currently set for court-marshals in December for the same crimes.
The defense claims that this case could be potentially harmful to all military personnel because it creates doubt about whether soldiers have the right to do what they've been trained to do. "This boils down to one thing in my mind: Are we going to allow civilian juries to Monday-morning-quarterback military decisions?" said Nazario's attorney, Kevin McDermott.
Scott Silliman, executive director of the Center on Law, Ethics, and National Security at Duke University said that this case is not about questioning military decisions, but about whether a service member committed a crime, according to the Denver Post.
Gary Solis, a former marine, currently a law professor at Georgetown University, said he supported the use of the law as a "means of reaching those who have committed crimes in the combat zone, whose crimes go undetected until after they have left military service.
One issue that has been hotly debated is whether a jury of civilians will be more or less sympathetic than a military jury.
"He can only get a fair shake if those civilians are honorably discharged Marines who fought" in Fallujah, said William McNulty, secretary of the Marine Corps Intelligence Assn., a group of former Marines, in the Los Angeles Times. "Soccer moms and pops can't understand the horrors of war or the complex set of [rules of engagement] that these Marines face."
Still, other former marines believe that civilian jurors will be sympathetic once they learn what kind of life-or-death decisions Marines must make every day.
Nazario maintains that he did nothing wrong and believes it is unfair to be tried in civilian court for military actions. He claims he and the others were ordered to kill the unarmed detainees by their superiors. Nazario said, "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."
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