During this morning, this email came in:
DAILY JOURNAL NEWSWIRE ARTICLE
© 2008 The Daily Journal Corporation.
All rights reserved.
May 23, 2008
MARINE FACES TRIAL BY CIVILIANS
Man Who Left Service Will Go to Court on Charges in Iraq Case
By Jason W. Armstrong
Daily Journal Staff Writer
This article appears on Page 1
RIVERSIDE - Jose Luis Nazario Jr. finished his military career as a Marine sergeant three years ago after serving in Iraq. While there, he said, he regularly fired at insurgents and got shot at while navigating a maze of crooked streets and crumbling, vacant homes.
But Nazario is now fighting another war - this one an apparently unprecedented case filed against him by federal prosecutors.
They've charged him with committing voluntary manslaughter by shooting and killing two unarmed insurgents during a fierce battle to take control of Fallujah, Iraq in 2004.
Nazario, who also is a former Riverside police officer, could be the first former serviceman nationwide to be tried outside of the military justice system under the Military Extraterritorial Jurisdiction Act, or MEJA. The 2000 law places federal jurisdiction over civilians who commit crimes while accompanying troops abroad and former military members whose crimes are discovered after they leave the service.
Nazario, 28, has pleaded not guilty. He faces a maximum of 20 years in federal prison if convicted on the two manslaughter counts. His trial is scheduled to start July 8 before U.S. District Judge Stephen Larson in Riverside.
His lawyer, who unsuccessfully argued that the action didn't belong in the federal court, said he believes the case is treading on uncharted legal ground.
"This is the first case of its kind, relating to a combat situation" involving a former member of the Armed Forces, Kevin B. McDermott, Nazario's lead trial attorney, said.
Unknowns in the case, he said, include civilian jurors' reactions to and interpretations of evidence and testimony dealing with brutal combat scenarios.
"I have visions of 12 soccer moms sitting there," McDermott, a Tustin sole practitioner, said. "You wonder how jurors will decipher rules of engagement and positive identification and whether Marines had cause to do anything."
Assistant U.S. Attorney Jerry Behnke, a Riverside-based prosecutor helping try the case, declined to comment. In the complaint, prosecutors said they had "probable cause" to believe that Nazario "in the heat of passion caused by adequate provocation did commit voluntary manslaughter by unlawfully and intentionally killing two unarmed male human beings, without malice." U.S. v. Nazario, EDCR07-127 SGL (C.D. Cal., filed Sept. 4, 2007).
The killings, prosecutors said in documents filed in the case, were illegal because they "violated clearly established law of war."
Prosecutors also argued that Nazario went against his training "regarding proper treatment of detainees."
"All Marines, including defendant, were repeatedly taught that they shall do no harm to detainees and that they have an affirmative duty to protect detainees," prosecutors said in their briefs.
The case against Nazario centers on his actions during Operation Phantom Fury on Nov. 9, 2004 - the first day of the Marines' bitter two-week fight with insurgents to wrest control of Fallujah, one of Anbar province's largest cities.
About 3,000 suspected insurgents were killed, and roughly 100 Marines died and 1,000 were wounded, military officials said.
During the fight, Nazario's squad was taking gunfire from a house, according to an affidavit in support of the complaint written by Mark O. Fox, a special agent with the Naval Criminal Investigative Service.
The Marines searched the home after the shooting stopped, found AK-47 rifles and ammunition and detained four men, Fox said in the affidavit.
According to the affidavit, a superior asked Nazario over a radio if the Iraqis were "dead yet."
"Nazario said he was told to 'Make it happen,'" Fox wrote in the affidavit.
Nazario killed two of the men and ordered two other Marines in his unit to kill the other two, according to prosecutors. Behnke declined to say why Nazario was charged with involvement in only two of the deaths.
McDermott said the incident prosecutors pinned on his client "never happened."
"It didn't occur at all. Period," McDermott said.
The two Marines Nazario allegedly told to kill the other two insurgents have also been charged in the alleged incident. Military prosecutors have charged sergeants Ryan Weemer and Jermaine Nelson with murder and dereliction of duty. Their courts-martial proceedings are pending at Camp Pendleton in San Diego County.
According to McDermott, Weemer fingered Nazario during a polygraph test that triggered an initial investigation by the Naval Criminal Investigative Service. Behnke declined to comment.
It was unclear Thursday whether Weemer or Nelson would testify in Nazario's trial. According to Nelson's lawyer, Nelson defied a court order to testify before a grand jury in connection with the case this week and a judge ordered him taken into custody as a result. His lawyer, Joseph H. Low IV of Long Beach, said Nelson opted to go to prison rather testify agaisnt Nazario. (Related story on Page 2.)
"This is a witness the prosecution wants to use to bury Sgt. Nazario because Sgt. Nazario won't take a deal," Low said Thursday.
Nazario had no reserve commitment after his 2005 honorable discharge, and military officials said his case fell outside of their jurisdiction. They turned to federal prosecutors, who charged him under MEJA.
Congress enacted the law eight years ago after a series of court cases that said civilians accompanying the armed forces could not be tried in military courts-martial.
The law also was written to give government jurisdiction over armed forces members who committed on-duty crimes while under the Uniform Code of Military Justice but whose alleged acts were discovered after they "separated or retired" from the service.
It applies to those whose crime outside the country could have netted them a year or more in prison if committed in the U.S.
Just a handful of people have been charged under the statute.
While Nazario's case is expected to be the first to reach trial under MEJA, one other former service member, former Army PFC Steven Green of Kentucky, also has been charged under the law.
Green is accused of participating in the rape and murder of a 14-year-old Iraqi girl in March 2006 and the murder of her parents and sister. Several co-defendants pleaded guilty or were found guilty of charges involving the incident in courts-martial proceedings.
Green is scheduled to go to trial in April 2009 in federal court in Paducah, Ky. He faces the death penalty.
McDermott and other lawyers helping represent Nazario filed a motion asking Larson to toss the manslaughter charges in March, arguing the federal court lacked jurisdiction to hear the case.
Serving as co-counsel for the former Marine are San Diego sole practitioner Douglas L. Applegate, Ledger & Associates name partner Emery Ledger and attorneys Pepper Hamilton in Newport Beach.
In their motion, the defense lawyers said the case would require the jury to "examine military decisions" outside of the court's "judicially manageable standards."
"The court ... cannot reasonably or appropriately determine the propriety of Sgt. Nazario's actions on the field of battle without an impermissible intrusion into the military powers," the motion said.
Larson agreed with prosecutors' opposition to the request. The judge ruled April 28 that Nazario had failed to "demonstrate that adjudication of this case would intrude on any policy choices or value judgments of the politically accountable branches."
"The express language of [MEJA] 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.
The case comes amid several high profile military prosecutions alleging abuse or killings of Iraqi civilians and detainees by troops. Those cases include the alleged Marine killing of 24 people in Haditha, Iraq in 2005. Prosecutors contend the troops killed the Iraqis as revenge for a roadside bomb that killed a Marine and injured two others.
Charges against several Marines accused in the incident are pending.
When federal prosecutors charged him, Nazario was a two-year officer with the Riverside Police Department and was approaching the end of his probationary period. The department fired him when he was charged.
He and his wife and daughter have since moved to New York, where he is originally from.
Nazario said the case has had a "devastating" effect on his life. He said he is out of work because employers refuse to hire him when they learn that he has charges pending.
His lawyers are representing him pro bono.
"There are no words for what I am going through," Nazario said.
Then this one was found in Oceanside, CA North County Times:
Hearing for Sgt. John 'Johnny' Winnick II continues at Camp Pendleton Wednesday
CAMP PENDLETON ---- A Marine sniper charged with two counts of manslaughter and two counts of assault in the shooting of four men in Iraq last year had the authority to shoot suspected insurgents if he deemed they posed a threat, his platoon commander testified Tuesday.
Lt. Dominique Corabi, commander of a scout sniper platoon from Camp Pendleton's 3rd Battalion, 1st Marine Regiment, said Sgt. John "Johnny" Winnick II had that authority when he led a six-man surveillance team on a mission near Lake Tharthar in the Anbar province on June 17.
"They were told to be prepared to engage targets of opportunity," Corabi testified, adding members of sniper teams were routinely taught that a surveillance mission can quickly turn to combat.
Corabi also testified there was conflicting advice about the rules governing sniper attacks.
Winnick, 24, a San Diego native and 2002 graduate of Del Mar's Winston High School, is the subject of an investigative hearing at Camp Pendleton to determine if the charges against him should stand. The hearing is expected to conclude Wednesday morning.
Winnick's sniper team was watching a mosque and abandoned store for possible insurgent activity when a series of vehicles stopped at an intersection with men emerging and appearing to plant a roadside bomb, team member Sgt. Alexander Wazenkewitz testified.
Shortly after those vehicles departed, an 18-wheel truck drove up and stopped near the same spot with the driver getting out, crawling under the truck and removing a black bag, Wazenkewitz said. Three other men then climbed out of the cab, he said.
"It looked the guy was laying down an IED," Wazenkewitz said. "It was definitely a threat."
At that point, Wazenkewitz said Winnick fired a shot from his sniper rifle at the truck driver and directed the five men he was leading to "suppress the vehicle," meaning they were to fire at the other men and at the truck to disable it.
Under questioning from Winnick's attorney, Gary Myers, Wazenkewitz said he believed what the squad did that day was within the military's rules of engagement.
"If you think the guy is a threat and should be shot, you do it," he said.
Wazenkewitz called Winnick, whose parents and family members sat in the gallery watching the hearing unfold in a small base courtroom, a "great teacher and leader."
The incident took place as the unit was about a month into its Iraq assignment. It was the squad's first engagement.
Wazenkewitz also testified that Marines had been told the insurgency was moving away from regular explosives to construct roadside bombs and was beginning to use the more portable and less detectable compounds such as ammonium nitrate. The truck they fired on disappeared from the intersection a couple of days after the shooting and was never fully searched, Wazenkewitz said.
Capt. Jeffrey King, presiding over the hearing as the investigative officer, will write a recommendation stating whether he believes there is sufficient evidence to warrant that Winnick face trial by court-martial.
"What I'm most concerned with is what those guys saw out there," King said at one point during Tuesday's court session.
The manslaughter charges against Winnick allege that he killed two men from the truck. Those men were later identified as Syrians. The assault charges allege that he ordered his men to fire at the other two men whose nationalities have not been confirmed.
The ultimate decision on whether Winnick, who was on his fourth combat assignment when the incident took place and had won a battlefield promotion during one for taking out a man planting a roadside bomb, will be made by Lt. Gen. Samuel Helland, commander of Camp Pendleton's I Marine Expeditionary force and head of all Marine forces in the Middle East.
If ordered to trial and convicted, Winnick could be sentenced to as much as 40 years in prison and a dishonorable discharge.
Winnick's case is the fourth involving local Marines accused of unlawful civilian killings in Iraq. He is expected to make an unsworn statement, meaning whatever he says is not subject to cross-examination by prosecutors.
Contact staff writer Mark Walker at (760) 740-3529 or email@example.com.
It seems like we are becoming the old USSR.
Crimes were determined by the POLITBURE:
In Marxist-Leninist states, the party is seen as "the vanguard of the people" and therefore usually has the power to control the state, and the non-state party officials in the politburo generally hold extreme power.
In the Soviet Union for example, the General Secretary of the Communist Party did not necessarily hold a state office like president or prime minister to effectively control the system of government. Instead, party members answerable to or controlled by the party held these posts, often as honorific posts as a reward for their long years of service to the party. On other occasions, having governed as General Secretary, the party leader might assume a state office in addition. For example, Mikhail Gorbachev initially did not hold the presidency of the Soviet Union, that office being given as an honour to former Soviet Foreign Minister Andrei Gromyko. Stalin ruled the Soviet Union for well over a decade before assuming the governmental position of Premier of the Soviet Union during World War II.
So what it has become is this:
An Insurgent (Read=Al-Quaida operative) sets up a situation where he knows that an American Marine will kill someone.
Some Insurgents are killed, and often citizens that the Insurgent intentionally put in the cross-fire.
The Insurgent calls up a member of the Main Stream Media, and complains that "Innocent" citizens were killed.
The Main Stream Media Party-Line adherent writes a column or article about how U S Troops "massacred" innocent citizens, without provocation or cause.
The top leaders in the Corps or the Army do not dispute the Media or Liberal Lawmakers. The troops that were there are called in, interrogated, and tried.
My point: Unelected powers in the Soviet Union would see or hear a challenge or a threat at any criticism. The offender would be declared "Enemy of the State", arrested, and given a "Show Trial" for "Crimes against Mother Russia" and:
A. Shot at a firing squad
B. Sent off to the Gulag
C.placed in a mental institution to mute any further criticism.