Top 10 military justice stories of 2008 — #3: Jose Nazario’s acquittal in first MEJA prosecution for alleged offenses committed while on active duty
The United States has remained continually at war for the last seven years. This has produced unique legal challenges to the application of criminal law in an operational setting. Curiously, though, despite seven years of war, in some respects the military justice system remains on a peacetime footing. The President has never made “the factual determination . . . that the existence of hostilities warrants a finding that a ‘time of war’ exists for purposes of R.C.M. 1004(c)(6) and Parts IV and V of this Manual.” So the next time you hear a military spokesperson or journalist say that the current maximum authorized punishment for desertion — or any of the other three UCMJ offenses for which death is an authorized punishment only in time of war — think to yourself, “Bah!”
2008 saw a smorgasbord of legal procedures for dealing with alleged criminal offenses committed in operational settings. A former U.S. servicemember was tried in U.S. district court for an alleged offense committed during combat operations, reportedly for the first time ever, resulting in an aquittal. A civilian was tried by a court-martial for the first time in more than 40 years. The Marine Corps held a court of inquiry for the first time in fifty years to examine possible war crimes committed during combat operations in Afghanistan. Military commissions sitting at Guantanamo Bay convicted two unlawful enemy combatants. Indictments were handed down against five Blackwater civilian contractors arising from a September 2007 shooting incident in Iraq while a sixth pleaded guilty to voluntary manslaughter and attempt to commit manslaughter for his role in the incident. And the regular court-martial system dealt with many, many alleged offenses committed in operational settings. Three of these varied approaches provide our number 3, 2, and 1 top-ten military justice stories of the year.
Today’s installment, the number 3 military justice story of the year, is the trial in U.S. district court and acquittal of Jose Nazario, a former Marine accused of killing two detainees in 2004 in Fallujah. Nazario was reportedly the first former U.S. servicemember brought to trial under the Military Extraterritorial Jurisdiction Act for alleged offenses committed while on active duty.
On 28 August 2008, after deliberating for less than six hours, a jury in the U.S. District Court for the Central District of California acquitted Nazario of all charges. LA Weekly has this helpful recap of the case. Nazario was charged with killing two unarmed detainees during the Battle of Fallujah. As LA Weekly reports:
At Nazario’s trial over the summer, two members of 3rd Squad [of Kilo Company, 3d Battalion, 1st Marine Regiment] testified to hearing the shots and seeing the corpses, but not to witnessing executions. The only men alleged to have seen the killings — Nelson, Weemer and Nazario — refused to testify. Nelson and Weemer were held in contempt last June and jailed until a judge finally ordered their release on July 3. The jury was left to deliberate with secondhand accounts of the killings and the detached witness statements of Nelson and Weemer. On August 28, a federal jury acquitted Nazario of all charges.
The two Marines who were jailed for contempt now face courts-martial for their alleged involvement in the incident. Sgt Jermaine Nelson’s court-martial is scheduled to start this coming Monday. He’s charged with unpremeditated murder and dereliction of duty. Sgt Ryan Weemer’s court-martial is scheduled to begin the following Monday, 12 January. He is reportedly also charged with unpremeditated murder and dereliction of duty.
Nazario’s may have been the first prosecution in U.S. district court of a former servicemember for offenses allegedly committed in a combat setting while on active duty, but it won’t be the last. Former 101st Airborne Division paratrooper Steven Dale Green faces a capital trial in the U.S. District Court for the Western District of Kentucky starting on 27 April 2009. (Hopefully the trial was scheduled with due regard to any competing quilt shows.) Green faces 16 charges arising from the alleged rape and murder of a 14-year-old Iraqi girl and the murder of her mother, father, and sister at Mahmoudiya in 2006. Green’s defense counsel, federal public defender Scott Wendelsdorf, indicated recently that he plans to rely on an insanity defense. Four soldiers were court-martialed for involvement in the incident or its aftermath. The AP reports that “[o]ne soldier charged as an accessory was sentenced to five years, while sentences for three others ranged from 90 to 110 years.” Like Nazario, Green is being tried under the Military Extraterritorial Jurisdiction Act because he was discharged before the alleged offenses came to light. On 26 August 2008, U.S. District Judge Thomas B. Russell rejected a number of challenges to the court’s jurisdiction to try Green.
It is far too early to draw any conclusions about the efficacy of MEJA prosecutions to deal with offenses allegedly committed in combat zones. We’ll follow the Green case during the coming year and see whether it provides any greater clarity to viability of this legal approach.