United States v. Nazario

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United States v. Nazario was the first case where a former member of the United States Armed Services faced charges in the United States civilian justice system for acts alleged to have taken place on a foreign battlefield.[1][2][3][4][5][6] Eugene Fidell president of the National Institute of Military Justice, wrote "This was the first time a battlefield case involving a former service member had been tried in district court under MEJA."

According to Nicholas Casey, writing in the Wall Street Journal, Nazario's acquittal had implications for the trial of armed Blackwater guards, all former military men, who were alleged to have recklessly killed civilians in Iraq.[1][3][4]

Casey quoted the Senator who introduced the law, Jeff Sessions, who 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."[3]

Details of the charges

Jose Luis Nazario Jr. formerly a decorated Staff Sergeant in the United States Marine Corp who received an honorable discharge in 2005, was charged with manslaughter in the deaths of four unarmed Iraqi on November 9, 2004.[5] The allegations came to light in 2006, when Ryan Weemer, one of Nazario's former subordinates, applied for a job at the United States Secret Service.[7] Interviews at the Secret Service routinely probe whether applicants had been involved in crimes, in the past. The information Weemer volunteered lead to court martial charges being filed against Weemer and other Marines involved in the shooting. Nazario couldn't be court-martialed because he had been discharged, and could not be recalled to active duty for a court martial.

On August 28, 2008, a California jury found Nazario Jr. not guilty.[7]

Weemer, and another of Nazario's former subordinates, Jermaine Nelson, faced contempt of court charges for their refusals to testify.[8] Five other members of the squad testified they didn't personally witness the shootings, but heard the shots fired. The contempt charges were dropped a month later.

Although he refused to testify during Navario's trial, in September 2009, Jermaine Nelson would later apologize for his role in the killings during his own trial.[9] According to The Guardian, during Nelson's trial a tape of a confession Nelson made in 2007 was played, that offered: "a grisly account that Nazario beat detainees, killed two of them by shooting them in the forehead and ordered squad members to kill the other two."

Nazario's attorneys included lawyers from the firm Pepper Hamilton -- a firm whose loyalty to the United States some commentators had questioned, due to their work on behalf of Guantanamo captives.[10] According to the Wall Street Journal jurors in USA v. Nazario embraced Nazario after he was acquitted, and told him they didn't feel qualified to second guess a decision made during combat.[1]

References

  1. 1.0 1.1 1.2 Dan Slater (2008-12-09). "Will Legacy of Jose Luis Nazario Haunt Blackwater Prosecutors?". Wall Street Journal. http://blogs.wsj.com/law/2008/12/09/will-legacy-of-jose-luis-nazario-haunt-blackwater-prosecutors/. Retrieved 2010-12-06. "As today’s WSJ report about Blackwater notes, prosecutors in the Nazario case faced jury skepticism. After the not-guilty verdict, jurors hugged Nazario and said they didn’t feel they “had any business” judging combat conduct." 
  2. Eugene R. Fidell. "Criminal prosecution of civilian contractors by military courts". Texas Law Review. http://www.wcl.american.edu/nimj/documents/Genelawreview.pdf?rd=1. Retrieved 2010-12-06. "According to news reports, the prosecution in United States v. Nazario could not produce the bodies or even the names of the decedents, and there was no physical evidence. Active duty Marines who were witnesses refused to testify and were jailed for contempt. Not surprisingly, the civilian jury acquitted. This was the first time a battlefield case involving a former service member had been tried in district court under MEJA. Interestingly, one of Sergeant Nazario's attorneys has stated that he and his co-counsel are considering whether to ask Congress to amend MEJA so that such a case could only be tried in a court-martial. They had argued without success that MEJA was not intended to cover combat action." 
  3. 3.0 3.1 3.2 Nicholas Casey (2008-08-19). "Civilian Court Tries Case From the Fog of War: Ex-Marine Is Accused Under Law Aimed at Contractors; Questions in Fallujah". Wall Street Journal. p. 1. http://online.wsj.com/article/SB121910667519751613.html?mod=hps_us_pageone. Retrieved 2010-12-06. "Changing the game in military justice is a law passed in 2000 to address the increased use of contract personnel, who were subject to neither court-martial nor civilian trials. Passage of the Military Extraterritorial Jurisdiction Act coincided with congressional debate centered on crimes local authorities didn't pursue, such as domestic abuse in contractor families or drug trafficking to soldiers by Americans on foreign soil. The law was seen as closing a loophole. But under the act, many major crimes linked to the military can be pursued by federal prosecutors. Mr. Nazario's case will be the first time that a former military man will stand trial under the MEJA for crimes said to have occurred in the fog of war." 
  4. 4.0 4.1 Dan Slater (2008-08-19). "In First, Former Marine to Stand Trial in Civilian Court for War Crimes". Wall Street Journal. http://blogs.wsj.com/law/2008/08/19/in-first-former-marine-to-stand-trial-in-civilian-court-for-war-crimes/. Retrieved 2010-12-19. "Today will mark the first time that a former Marine will stand trial in civilian court for crimes said to have occurred during the fog of war. Under the Military Extraterritorial Jurisdiction Act, a little-known law, prosecutors are pursuing manslaughter charges against Jose Luis Nazario for crimes he allegedly committed while a Marine Corps sergeant in Iraq in 2004." 
  5. 5.0 5.1 Devin Montgomery (2008-08-20). "Federal court prepares to try ex-Marine for Iraq killings". The Jurist. http://jurist.law.pitt.edu/paperchase/2008/08/federal-court-prepares-to-try-ex-marine.php. Retrieved 2010-12-06. "Sergeant Jose Nazario cannot face trial by court-martial because he is no longer in the military, and is therefore being tried under the Military Extraterritorial Jurisdiction Act of 2000, which gives federal courts jurisdiction over civilians who allegedly committed crimes abroad while still associated with the US military. Some have criticized the government's use of the law against Nazario, arguing that it was designed to prosecute government contractors, but others cite specific language in the Act as evidence that it was also intended to include retired military personnel..." 
  6. "Acquittal of Former Marine in Landmark Case Expected to Cause Change in Legislation, Says...". All Business. 2008-09-09. http://www.allbusiness.com/government/government-bodies-offices/11554073-1.html. Retrieved 2010-12-06. "The recent landmark case of United States of America vs. Jose Luis Nazario, Jr. tested the power and scope of the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), and the swift acquittal underscores flaws in the law that could lead to legislative changes to the Act, said the team of lawyers who represented the former Marine." 
  7. 7.0 7.1 Chelsea J. Carter (2008-08-28). "Jury acquits former Marine in killing of Iraqis". Fox News. http://www.foxnews.com/wires/2008Aug28/0,4670,MarinesFallujah,00.html. Retrieved 2010-04-18. 
  8. Sonja Bjelland (2008-08-22). "Marines refuse to testify against squad leader, prompting U.S. Attorney's Office to seek contempt charges". The Press-Enterprise. http://www.pe.com/localnews/inland/stories/PE_News_Local_S_web_nazario23.2a3a7fe.html. Retrieved 2010-04-18. 
  9. Elliot Spagat (2009-09-30). "Marine apologizes for killing Iraqi detainee". The Guardian. http://www.guardian.co.uk/world/feedarticle/8733048. Retrieved 2010-04-18. "Sgt. Jermaine Nelson told the judge he had failed the Marines by following his squad leader's order to shoot and by ignoring his training. He said he should have left the house and asked superiors for help when he disagreed his squad leader, Sgt. Jose Luis Nazario." 
  10. Charles H. Carpenter (2010-03-05). "Big Law Defends Guantanamo Lawyers". Legal Times. http://legaltimes.typepad.com/blt/2010/03/by-mike-scarcella-and-david-ingram----the-intensifying-flap-over-justice-department-lawyers-who-have-advocated-for-guantanamo.html?cid=6a00d83451d94869e201310f6fc1da970c. Retrieved 2010-04-18.