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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But, he says, war crimes do not occur in a vacuum: "Violations of the laws of war are command failures. When we have the Bush administration saying that laws of armed conflict do not apply, we have these problems. This is the sad part of the Global War on Terror."

The conflict inherent in the charges Nazario now faces is that on November 9 — if the accusations are true — Nazario made a choice: He did not protest his orders. He followed them, ordered his men to carry them out and led his unit further into the battle.

Illustration by Walt Gorecki

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IF THERE'S A THROUGH-LINE between Fallujah and Haditha, it is not just Kilo Company, but also the imprecise art of deciding when to take a human being's life. Rules of engagement are designed to provide clear guidelines on what force can be used against a threat, to eliminate confusion and uncertainty inherent in combat situations. But for Kilo 3/1, rules of engagement have not protected Marines from prosecution.

During his tenure at Camp Pendleton, General Mattis, who had invoked the slogan, "No better friend, no worse enemy," oversaw three criminal cases related to the allegedly unlawful killings committed by his Marines in Iraq. Among the 15 charged, two have been convicted, three currently face court-martial, and 10 others have seen their charges dismissed. (In another, unrelated case, Ilario Pantano, a Marine with the 2nd Battalion, 2nd Marines, faced charges of premeditated murder after he killed two Iraqis and posted a note on a car above the victims' bodies bearing the Marine slogan. A military tribunal declined to prosecute the case for lack of evidence.)

In his statement exonerating Lance Corporal Sharratt for his actions in Haditha, General Mattis quoted a ruling on self-defense by Chief Justice Oliver Wendell Holmes: "Detached reflection cannot be demanded in the face of an uplifted knife." Mattis' statement seemed to not only circumscribe judgment on the decision to kill in combat, but also to absolve his Marines of the responsibility to examine the circumstances when they should not.

"The Haditha incident has shown that there is a problem with the Marines: The command tends to look the other way," says Dr. Crane, who referred to the alleged acts as "service-discrediting."

"It'll take decades," Crane says, "to regain the moral high ground — as it did after My Lai."

AT THE COURTHOUSE, AS I SITacross from Nazario, it isn't difficult to envision him pulling the trigger. He doesn't come across as cold-blooded or ruthless. In fact, he seems the opposite: He is soft-spoken, friendly and, if anything, seemingly overwhelmed by his circumstances. But he does give the impression that he was a Marine who would follow orders.

The wounded at the Air Force Theater Hospital speak matter-of-factly about the killing that occurred in Fallujah; the violence was intimate and often occurred in the confines of a single room. One Marine, a 22-year-old from Spokane, Washington, recalls storming a large modern house in the city, "probably one of the nicest houses that we had been in," he says. Inside, he noticed a large family portrait, a television and a DVD player. "Wow, they do live very similar to us," he recalls thinking. The unit killed an adult male inside the home and stood down before moving to its next objective. The Marine cleaned his weapon, brushed his teeth for the first time in two weeks, and fell asleep on the floor. A half-hour later, he woke in a pool of blood. He realized it belonged to "the guy in the portrait that we had killed earlier."

On one of my last nights at Balad, the Air Force surgeons sit watching television in an anteroom between the emergency room and the surgical ward. They pass the hours between casualty calls zoning out to an LPGA tournament or Fox News. Stories of the ongoing battle in Fallujah filter in, reports that would broaden the individual accounts of the wounded. Footage appears onscreen of a squad of Marines pouring into a mosque in Fallujah. Several wounded men lie in dusty sunbeams; the camera pans left, where the profile of a Marine appears, his rifle pointed down at a man lying on his back. The Marine fires several shots. The surgeons are revolted; a few leave the room. The Marine captured in the video was removed from the battlefield; later, he was found to have acted appropriately in self-defense. His unit was Kilo 3/1.

Among the more than 600 wounded who have been treated at the Air Force Theater Hospital over the course of the Fallujah battle are dozens of insurgents — EPWs.

"We have to take care of prisoners of war like we take care of our own troops," says a cardiothoracic surgeon from San Antonio who recalls spending hours in a failed effort to save an insurgent with gunshot wounds to his chest. "It's hard, knowing that we're taking care of this guy who's trying to kill us."

Later that evening, a young Marine comes into the ER; he's taken shrapnel in the kidneys. He is coherent and extremely upset to be taken off the battlefield. His girlfriend's picture is taped over his heart. He tells me he is from Scottsburg, Indiana, and that he needs to be well enough when he gets home to take care of his sister, who suffers from scleroderma, a chronic disease. Surgeons remove some of the shrapnel from his body that evening. When the Marine awakens from surgery hours later, he sees a wounded Iraqi National Guard soldier lying next to him. He lunges from his gurney and has to be restrained by the nurses. He thinks the man next to him is the enemy.