Thursday, January 01, 2009

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.


Dew_Process said...

Will Iraq now request that Nazario be extradited for prosecution there?

Tactically, I find it curious that the feds just didn't wait until the 2 Marine cases were done - it's not like there was an Speedy Trial issues that couldn't be dealt with, all they had to do was hold off indicting Narario until after the other cases were done.

While not a MEJA case, the feds did convict a CIA Contractor [David Pasaro] of assaulting an Afghani POW who later died. Passaro got 8 years as I recall.

Equally as interesting is that the feds only indicted Nazario for voluntary manslaughter, not intentional murder, under a "heat of combat" theory.

And of course, the BIG question, will Nazario testify for the Marines?

Anonymous said...

Curious that the anonymous commenters about "getting away with murder" haven't shown up on this thread. I'd say the circumstantial evidence in this case was as strong as it was in Martinez.

Dew, does the new SOFA act retroactively? If not, don't prior agreements between the US and Iraq make Iraqi prosecution impossible? I have very limited knowledge of this issue, but I thought this was the sticking point for the Iraqis in negotiating a new SOFA.

Dew_Process said...

Anon 0912 - I'm not sure either, hence my question. If the SOFA's not retroactive, then Iraqi Sovereignty should govern. But, then the question is, did we have an extradition treaty in place?

Maybe some of the international law guru's can educate us.

Mike "No Man" Navarre said...

Tune in to the ABA teleconference on the subject on Jan. 15, that issue and others will be discussed. There has been some debate amongst legal scholars on the retroactivity issue, but it is difficult to say what the Iraqi court system will do with the issue.

Anonymous said...

I can't see any retroactive application of the SOFA if it is not specifically discussed in the SOFA itself, and believe that is the argument that would be made, i.e. "if the USG and Iraq wanted it to be retroactive, they should have specifically discussed it in the SOFA. Since they did not it, one must presume it was not intended to be retroactive."

There may also be a very tenuous and cloudy bill of attainder argument out there about any any retroactive application of such a treaty provision.

Don't think you will see an extradition either. Don't think there is such a statute out there and such actions would have an incredibly detrimental effect on getting anyone to go overseas. Who would want to go overseas if you run the risk of getting hauled in front of a hanging judge in a foreign country years after you completed your previously presumed as honorable duties. From a policy perspective, it just does not make sense. Radical elements in Europe have tried this with Rumsfeld et al. and even the EU states saw the incredibly slippery slope this set up. Too much at risk with such a policy. Might be OK for a leader who is completely disenfranchised, i.e. Allende, but represents a huge risk to diplomacy and foreign relations as we know it. The implications are almost endless. Unhappy with a domestic incumbent political opponent? Have foreign operatives indict him and make him disappear through extradition. Political candidate who is a veteran? Have foreign operatives indict him and extradite him for "crimes" committed long ago and far away. This is of course very tongue in cheek, but that is where some of this might or could lead. Where there's a will there's a way.

Anonymous said...

As another potential Apprendi issue in the military justice system, what about the sentencing regime set up under Article 119alpha, "Death/injury of an unborn child"?

The maximum authorized sentence for the offense "shall be consistent with the punishment prescribed by the President for that conduct had that injury or death occurred to the unborn child's mother."

But imagine, for example, a case where the child dies but the mother does not (or the accused is found not guilty of killing the mother).

What finding, proved beyond a reasonable doubt, would be the basis for calculating the maximum authorized sentence for the death of the child? In other words, which of the various forms of homicide -- with widely varying maximum authorized punishments -- would the accused be guilty of having committed, if had he actually killed (or been found guilty of killing) the mother, instead of the child?

How would a sentencing authority determine the answer to that question, in a manner consistent with the Constitutional, statutory, and regulatory standards governing a court-martial?

[Personally, based on my reading of Professor Falvey's article on the offense, I think the MCM was wrong in simply parroting the statutory "shall be consistent with..." language. Instead, it should have actually set forth some specific punishment for each form of the offense. If it had done so, the true legislative intent would have been honored without ever creating this issue.]