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Former Marine still faces charges in slayings

OCEANSIDE, Calif. — A federal judge Monday refused to drop charges against a former Marine charged in the killing of several men his squad detained during a pivotal 2004 battle in Iraq.

Federal District Court Judge Stephen G. Larson denied a defense request to dismiss federal charges against former Sgt. Jose L. Nazario Jr. The judge ordered the case to trial, beginning July 8.

Nazario, a former squad leader with Camp Pendleton, Calif.-based 3rd Battalion, 1st Marines, is facing two counts of voluntary manslaughter in connection with a house-clearing operation in Fallujah on Nov. 9, 2004.

Government prosecutors allege in court briefs that Nazario, “placed a call over his radio,” then “executed” one male detainee and ordered two subordinates to “execute” two other detainees found inside a house in the insurgent-held city.

Nazario completed his enlistment and was discharged Oct. 11, 2005. He was no longer subject to the Uniform Code of Military Justice, but prosecutors filed the charges under a little-known law, the Military Extraterritorial Jurisdiction Act.

Defense attorneys argued that Nazario shouldn’t be prosecuted by the civilian courts for combat actions.

“This is the first time you ever had a former service member being tried in court,” defense attorney Kevin B. McDermott said. “MEJA has never been addressed before in this type of fashion.”

MEJA, which Congress approved and which took effect in 2000, extends military jurisdiction to members of the armed forces who “engage in conduct outside the United States that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States.”

Nazario’s defense attorneys contend MEJA doesn’t address or apply to conduct during any combat action. Such prosecutions, they warn, would subject any service member to prosecution and investigation for alleged combat-zone crimes many years later.

McDermott said a comment made by a combat veteran drinking alcohol at a bar “15 to 20 years from now ... ends up in federal court.”

“There is no end to this war for any veterans,” he said. “You are on the hook forever.”

Defense attorneys say a trial would force a civilian jury to second-guess combat actions, rules of engagement and tactics, which they say aren’t within the scope of MEJA. They questioned the court’s jurisdiction, writing that charges filed against Nazario are “in a context that Congress never intended that evolve from non-justiciable political questions that MEJA cannot overcome.”

Prosecutors argued that the detained men were no longer combatants when they were shot.

“The killings in this case were unlawful because they violated clearly established law of war,” U.S. Attorney Thomas P. O’Brien and assistant U.S. attorneys Sheri Pym, Jerry Behnke and Charles J. Kovats wrote in a brief to the court, citing the handling and killing of detainees. They said because Nazario “was not acting ‘in conformity with (the President’s) orders’ the political question doctrine is inapplicable.”

Nazario’s attorneys said the Marines found weapons and ammunition in the house during the street-by-street house-clearing operation.

Larson, the judge, was not persuaded.

Nazario, who is married and has a son, has pleaded not guilty. After his indictment last summer, he lost his job as a probationary police officer in Riverside, Calif. His wife has returned to work in New York City, McDermott said.

“He’s taking care of his son,” he said. “He is unemployable.”

The Marine Corps has charged two other Marines — Sgts. Jermaine Nelson and Ryan Weemer — with murder and dereliction of duty charges in the alleged shootings. It was Weemer’s admission during a polygraph examination that prompted an agent with the Naval Criminal Investigative Service to look into the allegations.

DISCUSS: Extraterritorial Act?