Ex-Marine Decries Prosecution in Civilian Court (Accused of War Crime)

[Hissyspit]

Source: Associated Press

Aug 17, 4:26 PM EDT

Ex-Marine decries prosecution in civilian court

By CHELSEA J. CARTER
AP Military Affairs Writer

IRVINE, Calif. (AP) -- 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.

Read more: http://hosted.ap.org/dynamic/stories/M/MARINES_FALLUJAH?SITE=FLTAM&SECTION=US

---

[armodem08]

1. Interestingly, he might be right.

He is essentially arguing that they were trained and ordered to "end" the lives of wounded combatants and others who remained alive after an assault. This has come into play in many Iraqi battles, where civilians and reporters call it murder, but the soldiers were ordered to do so.

Now, don't get me wrong. If he killed a wounded person, civilian or military, he was wrong and he should be tried for it. The only thing that I'm saying is that if this was an issue with orders from superior officers, then those orders, who gave them, and why becomes much more important.

I've been waiting for this to discussed more in ANY media. In reports from Baghdad, Fallujah, and Haditha, soldiers have recounted orders to kill those combatants that remain as an operational priority. Obviously, this runs counter to the Geneva Conventions, so any public discussion of it would be anathema in the traditional media.

[powwowdancer]

3. We've been here before...

We're going round in circles. It's all falling on the whole "I Vas Only Followink Ordahs" defense, which Nuremburg said was frogwash. He should be tried, then the people who trained him to kill civilians should be tried, and then the people who issued the "ordahs" should be tried. Nobody in MY Navy held training seminars on how to whack civilians; I'm pretty sure the Corps is the same. If killing civilians and non-combatants is really what he was *trained* to do, there's a lot of heads besides his that should roll. This kind of "problem" is endemic to a war of insurgency. Vietnam taught us nothing. When the "enemy" is disguised as the civilian populace, (and indeed, both actively and passively assisted by them), a conventional, uniformed force has to abide by rules of engagement which simply don't apply to the bad guys. It can become very frustrating, and invariably leads to revenge killings. The problem is, the minute it does, we're no longer the good guys. We need to (A) seriously re-think our broken strategy with regards to the handling of insurgency warfare, (b) Abide by our own rules, and the rules of the Geneva convention, and (C) Own up to the fact that this is our "pottery barn;" we broke it, we bought it. If we don't like that, then some war crimes trials at the TOP of the food chain is in order. If we slam W's ass in the Saddam Hussein holding suite at the Hague, watch all this foolishness dry up.

[coalition_unwilling]

5. Can you say "My Lai"?? Same shit, different war - n/t

[Thothmes]

6. If memory serves me correctly

None of the enlisted men that participated in the My Lai killings were ever court martialed for their actions. Only Lt. Calley and Capt Medina were tried by a military court for their actions.

[happyslug]

10. That because it was clearly show they followed Orders and the people giving the orders were tried.

Remember all Orders are presumed to be valid (i.e. legal). If an enlisted personnel follows an Order, it is NOT his crime but the person who issued the Order. Now the enlisted personnel can and must disobey an illegal order (And when I was in boot camp and afterward we were told of that right) but the illegality of the Order must be clear (For example one film I had to watch told the troops if they had a question on the legality of the order to ask the order giver for clarification, to make sure the Order is legal). It is an old tradition (and law) in the Military that you can always ask for an order in writing, and can refuse to perform an Order till you get it in writing. That Order is your defense, for if it is later determined the Order was illegal you can claim you were ordered to do so and the person who gave you the Order is liable for the Crime not the enlisted personnel.

Officers (Including Non-Commissioned Officers, Warrant Officers and Commissioned Officers) have the right to disobey an order. Unlike enlisted personnel they are given the right to disobey an order they believe is wrong or otherwise should not be followed (This has more to do with the concept of "Mission Tactics" then anything else, an Officer job is NOT to follow Orders explicitly but to make sure the overall mission is accomplished, even if that means disobeying an Order). Note I use the phase "Overall Mission" as grounds to disobey an Order, but NOT Disobeying orders because you don't like them. There is a difference. Shooting Civilians are generally NOT part of the Mission. As a general rule Shooting Civilians does not help the overall Mission (Through this was a problem in Vietnam where body Counts was all the Rage, thus Lt Calley My Lai was asked for a body count and when he could not give one, was ordered to come up with one and Ordered his men to shoot the Civilians to get that body County up). Thus the Enlisted personnel had a solid Defense, they were following Orders and the Person who gave that Order was the person who was liable for the Crime NOT them.

My point is shooting Civilians was NOT part of the Defendant's Mission. His excuse that he relied on his training sounds hollow, I went to training (Which tends to be film for that way the Soldiers can see the example and better internalize the message of being careful NOT to harm Civilians) which tried to make it clear that shooting Civilians was to be avoided. No Officer (Including Non-Commissioned Officers) will give such an Order. His training had some sort of part about being careful around Civilians (my Training did). The Defendant is trying to use his "training" as an excuse for his own actions, actions he had been told during his training NOT to do.

Please note the Military does understand when Soldiers shoot Civilians in the heat of battle, that is not liked but is NOT criminal. There is something else here for the Military to go the extra step of bringing the Charges it did. The Military feels it can prove this was NOT a "Heat of Battle" Case, the Defendant's response seems to imply that he is NOT going for a "Heat Of Battle" Defense but a training Defense. I.e. he was trained to fight and did so, and as a results he killed the Civilians for he fell back on his training. In effect this was NOT the result of the Heat of Battle, but the training he underwent.

The key will come out in the Trial, how did he do his Crime (The Army's Position) or his Mission (His training Defense Position)? I do not know, but if this was in no way related to an actual Combat incident he will be found Guilty.

[Thothmes]

12. Thanks.

[wtmusic]

8. When the invasion itself is a war crime

it makes no sense to "re-think our broken strategy with regards to the handling of insurgency warfare". So-called insurgents are defending their own country from a hostile invader, which under the UN Charter and its precedents (going back to the Treaty of Westphalia) they have every right to do.

[bluesmail]

2. Classic tale of The Patsy.

[boomerbust]

4. He has a good arguement

Since we all know who the real war criminals are.

[Critters2]

7. So, enlisted personnel have no consciences.

Everyone who commits a crime, of whatever rank, should be prosecuted.

[L0oniX]

9. Got to wonder what the International World Court will do.

If France will go after Rummy then they might also go after individuals who participated in the illegal war and slaughter of the innocent.

[MetaTrope]

11. Maybe then they'll put Steven Green on trial too

The rapist and murderer of the 14-year-old Iraqi girl and her family is being kept firmly on ice until long after the Bush administration ends.

[gratuitous]

13. Oh boo hoo!

If the military can't explain itself to the people paying their bills, I say lock them up. Start with the guys who popped civilians in accordance with their "training" and their "orders," then move up the chain of command that provided this training or issued these orders.

And while Nazario's attorney predictably whines about "Monday-morning quarterbacking," we can make a decision about how we want to deal with these war crimes. Because either we deal with them ourselves, or someone else will. And that extra-legal tribunal might not be impressed by a snappy uniform.