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Accused in killing, former Marine speaks

OCEANSIDE, Calif. — When Jose L. Nazario Jr. enlisted in the Marine Corps a decade ago at age 17, he wanted to join the elite warriors he revered as “the honorable ones.”

“I wanted to be a fighter. I didn’t want to be a pencil pusher,” said Nazario, who ultimately became an infantry squad leader. “I wanted to be one of the heroes you see in the movies.”

In 2005, after fighting in Iraq and spending eight years in the Corps, Nazario joined the police department in Riverside, Calif., a growing city east of Los Angeles, where he and his wife settled with their new baby.

But today, from his parents’ house in upstate New York, his future, his finances and his freedom are in doubt.

Nazario, 28, was ending his police shift Aug. 7, 2007, when he was called into his supervisor’s office for bad news: He was facing federal felony charges of voluntary manslaughter for his part in shooting several men to death. Nazario and his infantry squad allegedly encountered the men inside a house during combat operations in Iraq.

Nazario spoke to Marine Corps Times on the condition from defense attorneys that he wouldn’t discuss specifics about the case and incident in question.

Government prosecutors, prompted by a Naval Criminal Investigative Service probe, contend the male victims were detainees, not combatants, when the Marines shot them.

The allegations stemmed from the squad’s actions Nov. 9, 2004, during the pivotal Battle of Fallujah that crushed a stubborn, dangerous insurgency that threatened one of Anbar province’s heavily populated cities.

Then-Sgt. Nazario was a squad leader in Kilo Company with the Camp Pendleton, Calif.-based 3rd Battalion, 1st Marines, which was engaged in intense fighting in the city’s densely built Jolan district.

More than 1,200 suspected insurgents were killed and 1,000 others detained in the battle’s first 10 days, the Defense Department reported at the time. Dozens of Marines and other service members since have been heralded for bravery and heroics during the intense house-to-house combat, which Marines and historians have described as the fiercest urban fighting since 1968 during the Battle of Khe Sanh in Vietnam.

Nazario, still in his probationary year on the police force when he got the news, was stunned. He thought it was a joke. He couldn’t believe what he heard about the incident, nearly three years old.

“I was like, ‘Which people are you talking about?’” he recalled, speaking by telephone from New York. “It was obvious all of it was hearsay.”

His life that day took a 180-degree turn.

“They said I couldn’t work there anymore, and they fired me,” he said of the police department. They told him to hand over his badge and his weapon, and “they cuffed me in front of my peers, my captain.

“They just threw me out. A wife and kid, expenses. They didn’t care,” he said. “They just threw me out. They didn’t ask for an explanation.”

Because Nazario had completed his military obligation on Oct. 11, 2005, and had no pending Reserve commitment, the Corps had no legal avenue to charge him under the Uniform Code of Military Justice. Instead, NCIS contacted the U.S. Attorney’s Office, which filed federal charges under a little-known law, the Military Extraterritorial Jurisdiction Act. A federal grand jury indicted him on two counts of voluntary manslaughter.

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 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States.”

The government decided the law applied to Nazario’s situation.

“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. Since Nazario “was not acting ‘in conformity with [the president’s] orders’ the political question doctrine is inapplicable.”

Nazario’s defense attorneys asked U.S. District Court Judge Stephen Larson in Riverside to dismiss the case on grounds that included a lack of jurisdiction and inapplicability of MEJA to combat actions. The government objected, arguing the alleged actions against “detainees [who] were unarmed” represent “a defined criminal violation.”

On April 28, the judge rejected the defense’s motion and ordered the case to trial beginning July 8.

“The express language of this statute provides federal courts with jurisdiction to hear criminal cases where, as here, the alleged crime was committed prior to discharge from the Armed Services,” Larson wrote in his ruling.

Nazario’s defense attorneys contend that MEJA doesn’t address or apply to conduct during any combat action. Such prosecutions, they warn, would subject any service member to investigation and prosecution many years after alleged combat-zone crimes. Kevin B. McDermott said a comment made by a combat veteran self-medicating himself with 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,” said McDermott, a Tustin, Calif., attorney representing Nazario. “You are on the hook forever.”

Nazario isn’t the sole member of his squad facing charges in the alleged incident.

The Corps has charged Sgts. Jermaine Nelson and Ryan Weemer separately with murder and dereliction of duty charges in connection with the alleged shootings, and those cases are expected to go to general courts-martial. It was Weemer’s admission during a polygraph examination that originally prompted an NCIS agent to look into the allegations.

Nazario and his defense attorneys dispute the charges. In court briefs seeking the dismissal, they noted the squad, while clearing buildings of insurgent fighters, had taken fire from a house and encountered the men during a search of the house where “the Marines found AK47 rifles, ammunition and four military-age males.”

“The government, however, chooses to gloss over these allegations in its response because it recognizes that any inquiry into Sgt. Nazario’s conduct on November 9, 2004, will necessarily implicate military decision-making and combat orders.”

Amid the charges and legal wrangling, Nazario has lost 30 pounds and battles depression as he tries to keep his head high. His unemployment benefits have run out. His defense attorneys are working pro bono, and a defense fund is helping raise money to offset some of the legal expenses. His wife, Diette, returned to work while he cares for their son, Gabriel, 2.

“I’m a former sergeant of Marines, and I can’t even provide the basic necessities for my family,” he said. “It’s depressing.”

Nazario has sent out numerous resumes and job applications, but no one will hire him. Most job forms ask whether any legal actions are pending against him.

“Of course, I’ve got to say ‘yes,’” he said. “After that, it’s pretty much ‘OK, we’ll call you back.’ And they don’t call back.”