IF NAZARIO'S CASE GOES TO TRIAL,it will lay bare the level of violence required to conquer Fallujah. Unlike any of the prior criminal cases emanating from the war in Iraq — including this week's sentencing of Army Sergeant Evan Vela, who was convicted of unpremeditated murder by a military court in Baghdad — Nazario's will go before a civilian jury, which will be asked to render judgment on the actions of a warrior on the battlefield.
Nazario's attorneys are attempting to transfer the case to a military court, where they hope to find their client a jury of peers. Implicit to this is the understanding that the Marine Corps is a culture within our culture and that within the Marine Corps, infantry is a culture unto itself.
Illustration by Walt Gorecki
Illustration by Walt Gorecki
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For now, the case remains in federal court, where Nazario's attorneys hope to see it dismissed before it goes to trial. One issue is evidence, according to Emery Ledger, one of three attorneys representing Nazario. To date, the victims exist only in the accounts of eyewitnesses, as outlined in the government's affidavit. Ledger, like Weemer's attorney, says there are no bodies, no identities and no forensic evidence: only the testimony gathered by NCIS.
"They're starting from a presupposed conclusion and they're working backward," he says of the U.S. Attorney's office.
Ledger suggests that the NCIS agents gathering the testimony in the affidavit from members of Kilo Company employed "intense interrogation and potential manipulations under threat."
(Ed Buice, an NCIS spokesperson, said similar charges "were made during the Haditha investigation. It's a standard tactic: When you can't attack the facts, you attack the fact-finders.")
On a more technical track, Nazario's counsel would like to see the case dismissed on constitutional grounds, making an "equal protection" argument that their client faces prosecution for a crime that a private employee of the Department of Defense (for example, a Blackwater contractor) could not. A 2000 law, the Military Extraterritorial Jurisdiction Act, makes it possible for Nazario to be tried in a civilian court, though the alleged crimes occurred when he was a Marine.
"It shocks the conscience that the U.S. would offer more legal protection to a DoD contractor, serving private enterprise," Ledger says, "than a U.S. Marine who is putting his life on the line at the order of the president of the United States."
The question of whether justice is being served by prosecuting Jose Nazario is a polarizing one. In viewing the same set of facts, one can see him as a criminal, a victim or a hero. Nazario provides a prism through which to view the parallel cultures within our society, cultures that do not always share the same values, even if they purportedly serve the same cause.
If anything, the case of U.S.A. v. Nazario warns us that this war won't be over when the troops come home. It will have only just begun.
