Warrior on Trial: A Kilo 3/1 Marine Faces Criminal-Homicide Charges

Before Haditha: Jose Nazario came home from Iraq a hero for valor in the Battle of Fallujah. Now they're calling some of his actions criminal.

Comments (0) By Johnny Dwyer Wednesday, Feb 13 2008

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That night, Carlise and Weemer sit in a Humvee. The killings have left Weemer shaken, Carlisle recalls.

He brings up the shootings with Weemer. "I was trying to get information so I could process — so I could go — well, what could I have done?" he says. Weemer tells him he felt guilty and says, "It was an order from higher up."

Illustration by Walt Gorecki

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It is only the first day of a battle that the men will continue to fight for four more days, before each will be shot in Hell House. "We just stopped the conversation," Carlisle says. "Because, obviously, it's hard to stay motivated in a situation like that."

An estimated 1,200 enemy were killed during Operation Phantom Fury; an inestimable number of civilians died during the attack. Nearly 250,000 Iraqis were displaced. In the midst of all this violence, the four deaths outlined in the affidavit involving members of 3rd Squad remain the only ones that have resulted in legal action. Nazario, because of his civilian status, has been charged with two counts of manslaughter in U.S. Federal Court for the Central District of California at Riverside — his is only the second case in which a former service member has faced charges in a civilian court for crimes committed during the war in Iraq, and the only case for acts on the battlefield. Sergeant Nelson, who remains in the Marine Corps, faces murder charges in an Article 32 hearing at Camp Pendleton. (Nelson's attorney did not respond to a request for comment.) Weemer has not been charged and refuses to answer questions about the accusations. (Weemer's attorney, Paul Hackett, did say, "There is no physical evidence to support the allegations — no photographs, no names of the insurgents allegedly killed.")

MARINES MUST ABIDE NOT ONLY by the Geneva Conventions and the Law of Armed Conflict, both of which forbid the execution of prisoners of war, but more specifically by their rules of engagement, which are established by their commanders in response to conditions of the combat environment. Rules of engagement define the conditions under which military personnel can use deadly force; in effect, they should define the legal boundaries between justifiable killing and murder.

These rules are at the center of Nazario's case. The Marine Corps declined to release details to L.A. Weeklyabout the rules of engagement promulgated to the Marines of 3/1 before Operation Phantom Fury began, explaining that they are considered evidentiary. But these rules were part of the public discussion prior to Nazario's prosecution.

Colonel Mike Shupp, the commander of the Marines' Regimental Combat Team 1 during Operation Phantom Fury, explains them in a U.S. Army oral history of the battle. "My instructions to 3/1 were to kill everything squad size and larger. Do not get bogged down, stay with the tankers, provide them the infantry support they need, stay hand in hand with them, and make sure you continue to advance through the city, because speed is on our side," he says. The Marines of 3/1 were attached to the contingent of Army tanks and Bradley Fighting Vehicles; while the tanks could kill from great distance, without the infantry support the Marines provided, they were extremely vulnerable to attack.

For the Marines clearing the homes along the way, the message was clear. "We were all briefed before going in there: If it moves you kill it," says Kilo 3/1 former Lance Corporal Sharratt.

He points out that the military leafleted Fallujah prior to the battle, imploring civilians to leave, "warning that, 'Hey, we're coming into the city. If you're left in the city, you're most likely gonna die.'" He acknowledges that those who surrendered were protected under the laws of war, but adds, "Our squad didn't take any EPWs [Enemy Prisoners of War] 'cause we were never put in a situation where we had to." (Lieutenant Colonel Sean Gibson, a spokesman for U.S. Marine Corps, declines to release the number of enemies captured by Kilo 3/1 during the battle.)

Sharratt tells how the enemy would try to exploit the rules of engagement: "I remember seeing this specifically — what they'd do is take a white flag and run across the street so you'd hold your fire. They'd run across the street where there's more weapons and they'd start shooting again."

He seems skeptical of the charges stemming from Fallujah. "I was with Nazario, we were in the same platoon," Sharratt says. "I know for a fact that everyone that we encountered was insurgents during Fallujah ... I don't see how [the charges are] possible with the orders that we were given."

Yet others point out that even if Nazario had received the order to execute the prisoners, as the affidavit describes, that does more to implicate his command than to relieve him of culpability for the crimes.

"All Marines, soldiers, sailors and airmen are required to ask whether they are being commanded to kill," says Dr. David Crane, a professor at Syracuse University College of Law and a former Judge Advocate General for the U.S. Army. Crane worked on the Department of Defense Law of War Program following the revelations of the My Lai massacre.