Does a civilian court have any right to try military personnel?

[Bluehawk]

Posted by: Sally Brown
Non-Commissioned Officer

Does a civilian court have any right ...
... to Monday-morning quarterback the Sunday night "game"? Or will it cause a soldier to pause and in that pause potentially cause home troop losses needlessly?
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Taken from:
Ex-Marine decries prosecution in civilian court - Yahoo! News

"Former Marine Sgt. Jose Luis Nazario Jr., 28, from New York, speaks about his impending federal trial, at one of his attorney's, Joseph M. Preis', office in Irvine, Calif., on Saturday, Aug. 16, 2008. Nazario faces charges that he shot detainees during the 2004 battle of Fallujah, in Iraq. It's a precedent-setting prosecution with the possibility of a precedent-setting conviction that would expose all former military personnel to prosecution in civilian federal court for actions in combat. The trial starts on Tuesday, Aug. 19, 2008 in Riverside, Calif.(AP Photo/Sean Dufrene)

By CHELSEA J. CARTER, AP Military Affairs Writer
Sun Aug 17, 4:47 PM ET

A former Marine sergeant facing the first federal civilian prosecution of a military member accused of a war crime says there is much more at stake than his claim of innocence on charges that he killed unarmed detainees in Fallujah, Iraq.

In the view of Jose Luis Nazario Jr., U.S. troops may begin to question whether they will be prosecuted by civilians for doing what their military superiors taught them to do in battle.

Nazario is the first military service member who has completed his duty to be brought to trial under a law that allows the government to prosecute defense contractors, military dependents and those no longer in the military who commit crimes outside the United States.

"They train us, and they expect us to rely back on that training. Then when we use that training, they prosecute us for it?" Nazario said during an interview Saturday with The Associated Press.

"I didn't do anything wrong. I don't think I should be the first tried like this," said Nazario, whose trial begins Tuesday in Riverside, east of Los Angeles.

If Nazario, 28, is convicted of voluntary manslaughter, some predict damaging consequences on the battlefield.

"This boils down to one thing in my mind: Are we going to allow civilian juries to Monday-morning-quarterback military decisions?" said Nazario's attorney, Kevin McDermott.

Others say the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.

Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, says it has little to do with questioning military decisions and everything to do with whether a service member committed a crime.

"From a legal point of view, there is no difference in law between war and peace," he said.

The Military Extraterritorial Jurisdiction Act law was written in 2000 and amended in 2004 primarily to prosecute civilian contractors who commit crimes while working for the U.S. overseas. One of the authors contends prosecuting former military personnel was "not the motivation."

"I don't fault the Department of Justice for using what legal authority they have if a clear criminal act has been committed. But I do think that it would be preferable for crimes committed on active duty be prosecuted by court martial rather than in civilian courts," said Sen. Jeff Sessions, R-Ala.

"I think maybe what it says is we need to rethink the question of military personnel who are subject to prosecution."

Telephone messages for a spokesman in the U.S. attorney's office in Los Angeles seeking comment were not returned.

Nazario, of Riverside, is charged with one count of voluntary manslaughter on suspicion of killing or causing others to kill four unarmed detainees in November 2004 in Fallujah, during some of the fiercest fighting of the war. He also faces one count of assault with a deadly weapon and one count of discharging a firearm during a crime of violence.

If convicted of all charges, he could face more than 10 years in prison.
The case came to light in 2006, when Nazario's former squadmate, Sgt. Ryan Weemer, volunteered details to a U.S. Secret Service job interviewer during a lie-detector screening that included a question about the most serious crime he ever committed.

Weemer was ordered this month to stand trial in military court on charges of unpremeditated murder and dereliction of duty in the killing of an unarmed detainee in Fallujah. He has pleaded not guilty.


According to a Naval Criminal Investigative Service criminal complaint, several Marines allege Nazario shot two Iraqi men who had been detained while his squad searched a house. The complaint claims four Iraqi men were killed during the action.

The complaint states the squad had been taking fire from the house. After the troops entered the building and captured the insurgents, Nazario placed a call on his radio.

"Nazario said that he was asked, 'Are they dead yet?'" the complaint states. When Nazario responded that that the captives were still alive, he was allegedly told by the Marine on the radio to "make it happen."

Nazario later received the Navy-Marine Corps Commendation Medal with a 'V' for valor for combat and leadership in Fallujah.

Though Nazario and his attorneys declined to discuss the facts of the case with the AP, the former Marine has always maintained his innocence.

After leaving the military, Nazario worked as an officer with the Riverside Police Department and was close to completing his one-year probation. He said he knew nothing of the investigation until he was arrested Aug. 7, 2007, after being called into the watch commander's office to sign a performance review.

He said he was leaning forward to sign when he was grabbed from behind by his fellow officers, told he had been charged with a war crime and was turned over to Navy investigators waiting in a nearby room. Because he had not completed probation, the police department fired him.

Since then, he said, has been unable to find work.

"You're supposed to be innocent until proven guilty," he said. "I've put in applications everywhere for everything. But nobody wants to hire you if you have been indicted."

Without income, Nazario said, he has been forced to move in with his parents in New York. He and his wife resorted to selling some of their household goods, such as electronics equipment, to a pawn shop.

His wife, once a stay-at-home mother to their 2-year-old son, has gone to work as a customer service receptionist, he said. She will be unable to attend his trial.

"She has to work. We need the money," he said, his eyes reddening as he blinked away tears.

Nazario said he has no regrets about being a Marine, only regrets about what has happened since.

"My faith in the system is shaken. There's no doubt about that," he said.

One of Nazario's defense attorneys, Doug Applegate, said he believes that ultimately the former Marine will be acquitted because of lack of evidence.

"There are no bodies, no forensic evidence, no crime scene and no identities," he said.

It is unclear what, if anything, Marines being subpoenaed to testify will say about the events in the house in Fallujah.

Another Marine, Sgt. Jermaine Nelson, 26, of New York is slated to be court-martialed in December on charges of unpremeditated murder and dereliction of duty for his role in the deaths.

Although he has not entered a plea in military court, Nelson's attorney has said his client is innocent.

Nelson and Weemer were jailed in June for contempt of court for refusing to testify against Nazario before a federal grand jury believed to be investigating the case. Both were released July 3 and returned to Camp Pendleton."

___ Chelsea J. Carter covers military affairs in Southern California. Associated Press writer Ben Evans in Washington contributed to this report.

Copyright © 2008 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.

Copyright © 2008 Yahoo! Inc. All rights reserved.
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"Compromise, hell! ... If freedom is right and tyranny is wrong, why should those who believe in freedom treat it as if it were a roll of bologna to be bartered a slice at a time?" ~ Sen. Jesse Helms

[Sally Brown]

I personally believe that a member of the military, present or past tense, should be held accountable ONLY in military courts for actions that occur in military life.

The concept of holding accountable a former servicemember for actions after separating from service is a good idea BUT if charges are appropriate then the law that should have changed was in the Uniform Code of Military Justice (UCMJ) so that a former servicemember could be called back and tried in that setting. In the civilian world we extradite suspected criminals from from foreign countries to try in our civilian criminal courts in the United States. How would returning a former soldier to a military court to answer be any different from an extradition proceeding?

The accountability is met but in the appropriate court setting. Civilians have no business determining what is appropriate military action, most especially in a war setting they have had limited or no exposure to whatsoever. A civilian court to a soldier is NOT a jury of his or her peers in this regard.

JMHO

[Bluehawk]

It's entirely possible that by trying the case as they are, the outcome they apparently desire could easily backfire on the Prosecutors.

They will, of course, then have every right to try the case again, and again, and again... until they DO obtain the result they wish.

[Sally Brown]

A person can only be charged with murder of the same individual once otherwise it is double jeopardy.

The alleged "murders" did not happen on American soil which really means that really only the Iraqi government may have had a right to extradite and profer civilian charges if any were to be made. The U.S. government will be very hard pressed to find the bodies and DNA evidence to link any of these soldiers to any one particular crime or to prove who exactly fired the shots and under what circumstances. Indeed, the government at this point can't even prove that a crime occured.

It is Monday-morning quarterbacking and with the refusals to testify (with resultant contempt of court charges) because of the implications to personal military court martials of those who might know something because they are still AD, there really isn't a government case at all.

To try this case anywhere but in a military court is a great disservice to all Americans in uniform and the horse-and-pony show by the civilian courts hopefully WILL backfire so that these tactics aren't used again.

If we the people are the government, then Pogo's wisdom sums it up best, "We have met the enemy and he is us!"

[Bluehawk]

Originally Posted by Sally Brown

A person can only be charged with murder of the same individual once otherwise it is double jeopardy.

Trust me, they DO have ways to get around that little inconvenient truth if they so choose.

[Sally Brown]

If on American soil they could try to use a denial of civil rights or they could try each allegation separately so as each one falls a new charge can be filed. But it really has no business being tried in our American civilian criminal law system. The law that is being used/tested was not written to prosecute soldiers for these sorts of things. Makes me want to scream "ARGHHHHHHHHHH" like my famous cartoon alter ego's brother does sometimes.