Warrior on Trial: A Kilo 3/1 Marine Faces Criminal-Homicide Charges
A CALL CAME OVER RIVERSIDE police officer Jose Nazario's radio toward the end of the graveyard shift on August 7 of last year. The night had been quiet: a shoplifter picked up at Best Buy, a drunk in front of Starbucks with a felony warrant, a few traffic stops — typical activity in this city of just over a quarter-million people. Nazario, a trim 27-year-old former Marine, raised in New York City's Spanish Harlem, just two years out of the police academy, was three weeks from completing his probation period with the Riverside Police Department. Now his supervisor was asking him to return to the station to fill out an evaluation form.
Police work was a new beginning for Nazario. Through most of his adult life he'd only known the Marine Corps. At 17, he ventured to a recruiting station on Staten Island, spoke with a Marine on duty, and asked his mother to sign a waiver allowing him to enlist as a minor. Nazario was her only son; she'd raised him alone and now she was letting him go. With a mixture of pride and fear, she put her name to the page.
"I thought I was a pretty tough kid," Nazario recalls. He chose the Marines because it was "the toughest, most respectable" branch of the armed forces. In his school years he spent summers in upstate New York, a Fresh Air Fund camper from the city. He loved the outdoors, but the neighborhoods in which he grew up offered little in the way of nature. Life on the streets never attracted him. He always gravitated toward positive role models. The Marines represented a chance to leave the city behind. He would travel the world — Japan, Europe; he'd experience things nobody in his family ever had. If needed, he'd go to war.
Sergeant Jose Nazario returned from Iraq in January 2005, pulling into the Camp Pendleton parking lot assigned to 3rd Battalion 1st Marines, or 3/1. This had been the exact spot where he'd left his wife 10 months before, holding her silently for half an hour in the dawn darkness before kissing her goodbye. Upon their return, the Marines from 3/1's Kilo Company had rolled past the crowds and bands lining their route into Oceanside. Jose Nazario climbed off the bus and searched through the sea of families to find his wife. She was there alone, waiting for him.
The Marines of Kilo 3/1 arrived home in glory. They had led the main assault on Fallujah and suffered an inordinate amount of the battle's casualties — 23 Marines killed and 307 wounded. When Kilo Company convened in February 2005 for an awards ceremony, Nazario felt a sense of accomplishment like none other in his life. He'd given the Marine Corps eight years; the Corps had given him a new identity: as an infantryman, a scout sniper and, finally, leader of Kilo Company's 3rd Squad (3rd Platoon), taking his Marines into some of the fiercest combat since the Vietnam War. In Fallujah, he'd witnessed the killing of one of his men. But he'd saved another's life. For that, he'd been decorated for valor.
The war had ended for Jose Nazario. "I'd pretty much accomplished everything I set out to do," he says. He decided he'd leave the Marines after his enlistment came to an end, become a police officer and start a family. Soon after he entered the police academy, his wife became pregnant with their first child, a son. Life was coming together. "I wanted the wife, the kid, the white house, the picket fence," he says.
That August 7 morning, Nazario stepped out of his cruiser and followed his supervisor into a sergeant's room at the Riverside Police Department. On a table sat a piece of paper, what Nazario thought was a six-month-evaluation form. His supervisor directed him to sign it. As Nazario leaned in to read the paper, hands seized his arms from behind. Another set of hands removed the 40-caliber Glock from his service belt and wrapped handcuffs around his wrists. Agents with the Naval Criminal Investigative Service placed him under arrest.
The criminal complaint read, plainly: "On or about November 9, 2004, in Fallujah, Iraq, defendant Jose Luis Nazario Jr., in heat of passion caused by adequate provocation, unlawfully and intentionally killed two unarmed male human beings, without malice."
NOVEMBER 9, 2004. FALLUJAH, IRAQ. Operation Phantom Fury. Someone has been shooting at 3rd Squad from a house along a residential Fallujah street, which battle planners have renamed Phase Line Henry. Sergeant Jose Nazario's men return fire. After some time, the weapons go quiet. They've been taking fire all day. An hour or two earlier, a bullet struck Lance Corporal Juan Segura. He died soon after, and the fight quickly became real for the Marines in Kilo 3/1. Right now they don't have time to mourn Segura; they are the lead force of the assault, making their way on foot to the center of this city, home to nearly a half-million people before the American assaults, the first in April 2004. They move toward the house, watching the rooftops and windows for snipers.
It is the second day of combat in the second Battle of Fallujah, where homes become battlefields and firefights occur within bedrooms and living rooms. The night before, as a steady rain fell, more than 10,000 Marines and soldiers watched as artillery and bombs sailed into the city, illuminating the horizon with fiery flashes. Now Nazario leads 13 Marines, among them Lance Corporal Cory Carlisle, Corporal Ryan Weemer and Sergeant Jermaine Nelson, along Phase Line Henry. When 3rd Squad reaches the house, the Marines storm in. An affidavit from the Naval Criminal Investigative Service provides three eyewitness accounts of what happened next:
Inside the house, the squad finds several adult males, each unarmed. A search of the rooms turns up AK-47 rifles with ammunition. Nazario then radios an unidentified Marine to report the capture of the prisoners. After a brief exchange, Nazario turns to his squad mates. He tells them that the voice on the other end has asked: "Are they dead yet?" To which Nazario responded, "Negative." Then, Nazario reports, the radioed voice gave him an order: "Make it happen."
"You know what has to be done," Nazario tells his men.
According to the affidavit, this is when the killing begins. Nazario leads one prisoner to a separate room, believed to be a kitchen. Two gunshots ring out. Two witnesses, both active-duty U.S. Marines whose names have been redacted from the affidavit, enter the room. Nazario stands over the prisoner, who is splayed flat on his back, a pool of blood circling his head. Nazario leaves the room and asks, "Who else wants to kill these guys? Because I don't want to do it all myself."
Nazario, according to one witness, then orders two members of his squad to each kill a prisoner. Nazario raises his rifle to the head of a second prisoner and pulls the trigger. Blood and brain matter splatter over the muzzle of Nazario's rifle and onto his boots. An unidentified squad member points his pistol at one of the remaining prisoners and fires. One prisoner remains.
"Yo, are you done yet? We have to go," Nazario tells another squad member, whose name is withheld. That Marine, according to the affidavit, shoots the last prisoner in the back of the head.
NAZARIO DENIES ANY OF THIS ever happened. We meet at the Riverside Division Federal Courthouse this past December, before a pretrial hearing. He stands in the back of the courtroom, almost at attention, watching as court officers lead in a half-dozen orange-jumpsuit-clad defendants facing charges in other cases. He wears a broad-shouldered black suit with a tiny American-flag pin fixed to the left lapel of his jacket, draped loosely over his lean, triangular build; his head is shaved bald and his stern expression occasionally breaks into a boyish smile.
Shortly before his court appearance, we sit down in a windowless conference room next to the courtroom. He's agreed to grant the first interview since his indictment to L.A. Weekly, though his lawyer, Emery Ledger, a criminal-defense attorney from Newport Beach, takes any discussion of the charges off the table.
"I thought it was a joke," Nazario says of his arrest. The consequences, however, were immediate. The Riverside Police Department fired him that day. Since he had several weeks remaining as a probationary officer, the department could not place him on paid suspension. With a stay-at-home wife and 2-year-old child, he immediately needed to find work. He looked for jobs everywhere: loss-prevention at Wal-Mart, security-guard positions, "almost anything I could find, to help pay the bills," he says. He'd fill out job applications, and when it came to the question of whether he had any criminal cases pending, he'd answer truthfully. He never received a callback.
Nazario left Riverside and moved his wife and child across country to a small town in upstate New York to be near family. He now stays home, caring for his son, the allegations against him a constant companion.
"It's nothing short of horrible," he says. "We can't pay any of our bills. We're relying on the kindness of strangers."
The family doesn't have health insurance, and until Nazario is tried, their future remains uncertain.
"I love my country. That's never going to change. It's just ...," he says, trailing off. "I haven't been found guilty of anything. I'm suffering. My family's suffering."
It wasn't supposed to be this way. Four days after the actions on Phase Line Henry, Nazario and 3rd Squad are in a firefight in a second house in Fallujah. And this time, as the months and years pass, the firefight will be rewritten as a legend in the Marine Corps, a stage set for combat heroism in Fallujah, the Iraq war's largest battle.
NOVEMBER 14, 2004. BALAD AIR BASE, IRAQ. It is a Sunday. Not long after morning services. Two members of Nazario's squad, Ryan Weemer and Cory Carlisle, rest among the wounded. They were shot the day before. They lie next to each other in ICU No. 1 at the Air Force Theater Hospital. The facility is a tent. A series of them, actually. Construction-paper Christmas cards from American schoolchildren decorate the corridors. The ward glows olive green. Ventilators hum off-unison. A persistent bleating hovers underneath conversations. The sound tells the nurses that someone is still alive. On one wall hangs a Wong-Baker FACES Pain Rating Scale, a declination of cartoon faces: The first, smiling, reads "No Hurt"; the last, a frown streamed with tears, reads "Hurts Worst." Outside, helicopters drift down in pairs ferrying in the wounded and dead. They are Marines and soldiers; civilians and enemy. When the choppers lift off again, the rotor wash sucks the walls inward and outward. This is a place of morphine calm. Quiet with the gratitude of survival. A scripture hangs over the cots: It reads, "This is a day the Lord has made. We will rejoice and be glad in it."
The men are conscious. The surgeons make their rounds. Among them are other wounded. A sergeant with an arm shattered by bullets; he's got two kids, he's going through a divorce back home in South Carolina. Another from West Philadelphia with flash burns to his eyes has almost a decade in the Marine Corps, with deployments to Somalia and East Timor. He only hopes he can stay in for life. Along with Weemer and Carlisle, there are two other 3/1 Marines. All of them were injured south of Balad, in Fallujah, less than a week after Nazario's team cleared the house along Phase Line Henry. An officer stands over them in pressed fatigues; they're shirtless, covered in drab wool blankets. He says to them, "All right, you know the Marine Corps way. Tell the story. Tell your story."
Weemer speaks. He's been off the battlefield in Fallujah for less than 24 hours.
You see enough stuff it's kind of like one big day, he begins. We were clearing buildings around a block, and [there were] three guys waiting inside for us in one of the houses. My team went inside. Weemer and his fellow soldiers burst through a door and found a fighter, alone. First guy was just kind of sitting in the corner. I think he was pretty stunned that we came in there ... We got him before he fired off a round. And went into the next room. By this time, I had a jam in my M-16 so I had my 9 mil ... There was a guy back in the corner just spraying an AK back and forth at me and my teammate. I shot 15 rounds out of my 9 mil at him. He had body armor and Kevlar — or some sort of helmet. All 15 rounds and he still didn't fall. I went back to the first room to get reloaded and I saw the guy fall in the doorway. So he finally did go down though. Weemer's team had to clear each room of the house, so they made their way toward the second floor. Got to the top. There was a guy up there. Shot down with an AK. And that's when I got peppered on my right leg. And, uh, that was it for me.
Weemer, who is Carlisle's fire-team leader, had surprised his friends and family back home in Hindsboro, Illinois, when he enlisted. He'd graduated at the top of his class at Oakland High School, was homecoming king and wrote poetry. The expectation was that he'd go to Eastern Illinois University to follow his interest in psychology and philosophy. Instead, he joined the Marine Corps, studied Close Quarters Combat.
I was looking for an adventure. Thrill, he says. Something. He says he has seven-and-a-half months left in his enlistment. Not sure whether he'll re-enlist. Or if he can.
Lance Corporal Carlisle speaks next. He used to be a carpenter, and is a member of the Church of Jesus Christ of Latter-day Saints. He is from Tremonton, Utah, a 5,000-person town 15 miles south of the Great Salt Lake. Carlisle tells me he likes pingpong. He recalls his experience going into the same house with Weemer: I'm point man. I went in with me and my team. We rushed in and there was a guy sitting there with an AK. And so we lit him up. And then there were some more people inside the house. So we, uh, went to clear the next room and my team leader ran in and I ran in and we lit up another guy and he came running back in. So we went down the hallway again. Then we threw a grenade in there and we both rushed the room again. And as I rushed the room, one of the guys came out [of] the rooms and started firing. So I shot him. Killed him, but in the process he shot me in the femur. And then I sat there. The leg is broken. So. I sat there in the hallway ... I believe one of the guys upstairs was either reloading or preparing a grenade or something. But, uh, in that process he threw a grenade and it blew up about 10 feet from me. And, uh, it didn't harm me at all. And, after that, the guy upstairs just left again and I tried crawling over to Corporal Sanchez, where he reached out, he grabbed me, pulled me in that room ... But they couldn't get me out because we were basically pinned down. A Marine died, Carlisle explains, and several more were wounded in coordinating his rescue.
I am struck by how plainly both Weemer and Carlislerecount killing their enemy. So I ask Carlisle how he felt, as a Mormon, about killing the fighter that he "lit up." Carlisle considers the question. He wasn't a good person, he says, so I don't feel bad for him. Carlisle thinks about the future. 3/1's due back in January, he says. And I was gonna go snowboarding. Before he got shot, he'd been fighting for four days. To him it seemed more like a week. I seen a buddy go down, he remembers. First day was intense.
AT THE COURTHOUSE IN RIVERSIDE, Nazario picks up the story where Weemer and Carlisle leave off three years before. After the two Marines are shot, Nazario rushes into the house with several other members of 3rd Squad. His team finds Carlisle in a room, bleeding profusely, but can't immediately evacuate him.
"There was no way to bring him out without going through the kill zone," Nazario says.
Five Marines remain trapped in one room, while the entire platoon swarms outside the building to help rescue 3rd Squad. The insurgents hold the higher ground upstairs and can't be attacked with heavier weapons like machine guns or rockets, which could potentially kill or injure the Marines inside. Sergeant Norwood lays dead on the floor and another two Marines, Sergeant Brad Kasal and Private First Class Alex Nicholl, are shot multiple times within moments of entering the house.
"We were all pretty much sitting ducks," Nazario recalls. While Corporal Robert Mitchell Jr. tends to Carlisle's injuries, Nazario looks for a way out. The Marines outside the building have no way to locate those trapped inside to attempt a rescue. Nazario takes down a large curtain rod from the wall and radios a team outside. Listen for banging sound on the wall, he says. A Humvee circles the building, but the Marines driving past don't hear anything. Nazario continues banging the rod against a wall. On a second pass, the vehicle locates the room. The only possible exit, a window, is covered by bars. A Marine outside suggests blowing the wall down. Nazario looks around the room, which is stocked with mortars and explosives, and realizes that any secondary blast could kill everyone inside. He has another idea. Nazario instructs the Humvee to ram through an exterior gate, then fix a chain to the window bars and tear them from the wall. The idea works and the Marines pour through the hole, finally able to extract Carlisle.
"Once we were out of that room, there was no need to be in that house," Nazario says. The Marines destroy the building — and the insurgents inside — with an explosive charge.
Carlisle and Weemer are evacuated to a field surgical unit, then to Balad. Carlisle arrives in time for surgeons to reconstruct the damaged artery in his left leg. After the two men are packed into the cargo hold of a C-141 jet and flown to Germany, their unit will be in the battle for several more days.
"I was just glad we were able to save his life," Nazario says of Carlisle.
The Marines give the firefight a name: Hell House. It is immortalized in two books, one of which is in preproduction for a Universal Pictures feature. An emblematic photograph of the war came from the incident — of Sergeant Brad Kasal being carried out of the house, soaked in blood, clutching his pistol. The parents of Sergeant Byron Norwood, the Marine who died in Hell House, joined President Bush at the State of the Union address in 2005. At Camp Pendleton, Sergeant Kasal and Corporal Mitchell receive the Navy Cross for their heroism at Hell House; several more members of 3/1 are decorated for their role in the firefight. In February 2005, Nazario stands before Kilo Company at Camp Pendleton and receives the Navy and Marine Corps Commendation with Combat Distinguishing Device for his valor at Hell House. Both Weemer and Carlisle receive a Purple Heart; Weemer is awarded a commendation medal. At the time, Hell House seems to be the heroic coda to their military careers.
But their war doesn't end in that house. Two years later, Weemer, according to his attorney, sits down to interview for a job with the Secret Service. He's received an honorable discharge from the Marine Corps and, like other former squad mates, hopes to begin a career in law enforcement.
During that job interview, he remembers something about the first day his unit entered Fallujah. He tells his interviewer that on November 9, 2004, just days prior to the heroics at Hell House, some of his squad members broke the laws of war. As a resulting NCIS investigation moves through members of 3rd Squad, the story emerges with new allegations — that Nazario and others, including Weemer himself, had executed prisoners who had surrendered to them. Carlisle, who is no longer a Marine, provides testimony about the killings, helping to build the indictment against his former squad leader Nazario, and one of the men who saved his life.
IN MARCH 2003, AS THE COALITION invasion forces mass on the Kuwaiti border, General James Mattis, the commanding general of the first Marine division, under which Kilo 3/1 falls, prepares a message for his troops. "We will move swiftly and aggressively against those who resist, we will treat all others with decency, demonstrating chivalry and soldierly compassion," he writes. Then, invoking the epitaph of the Roman dictator Sulla, he closes: "Demonstrate to the world there is 'no better friend, no worse enemy' than a U.S. Marine." It's a charitable translation; the line has another interpretation: "No one has done more good to his friends, or more evil to his enemies."
This potent mantra seems to foretell the heroic and brutal reputation that Kilo 3/1 will achieve in Iraq. In early 2006, before charges are brought against Nazario, come the most notorious allegations against the company: that four members of the unit had massacred 24 civilians in Haditha, Iraq, in 2005.
Eight Marines faced Article 32 hearings at Camp Pendleton on charges ranging from dereliction of duty to unpremeditated murder. The NCIS investigation bore out in antiseptic detail how members of Kilo Company moved through four houses in Haditha after an IED attack, killing the inhabitants, including women and children. Two members of the unit still face criminal charges related to civilian deaths, four eventually saw their charges dismissed, and one member of the unit has received immunity for cooperating with the prosecution. The dead from Haditha were almost exclusively civilians, most of whom were slaughtered in their own homes. (On February 19, PBS's Frontline examines the Marines of Kilo 3/1 and their role in the Haditha killings.)
Former Lance Corporal Justin Sharratt, who was in Kilo Company with Nazario throughout 2004's Operation Phantom Fury, participated in the 2005 killing of three brothers in their home in Haditha. He cleared the room the men were found in — much in the manner practiced in Fallujah when he fought alongside 3rd Squad — and emptied his pistol into the three men, whom he stated had pointed weapons at him. Sharratt faced unpremeditated-murder charges for the deaths of the brothers, but last August he was exonerated on all three counts. He says that clearing houses, as he'd done in both Haditha and Fallujah, demands both speed and decisiveness. "You have to basically shoot first," he says. "Mistakes do happen. The wrong people do get shot — it's neither side's fault."
I ask Sharratt his impression of Nazario. "He was a good squad leader," he says. Sharratt describes how Nazario joined Kilo Company and was assigned to take over 3rd Squad. "What everyone liked about him was that he kind of sat back and saw how they actually ran the squad," Sharratt says. "Then he started taking over leadership of the squad."
When I speak with Nazario's wife, Diette, she describes how her husband's arrest has reorganized their life: "One day he had a job and the next day he was unemployed." She'd intended to stay home with their son for his first two years, then return to work in her field of criminal justice — she holds two master's degrees — and make plans for their second child. But she's now back in the workforce full time.
"Everything right now is on pause," Diette says. She's supporting the family, after taking the first job she could find, as a customer-service representative. She says that when she applied for that position, her employer asked, "Why are you taking this job when you have all this experience?" She didn't disclose her situation to her employer and thought to herself, "Because I really need this job."
She says she's traded the fear she felt during her husband's deployment — that someone might "come to the door with a flag" — for the worry that her husband may be incarcerated for a decade. "I just feel betrayed," she says. "I think the government is wrong, not just accusing my husband, but other men, of these crimes."
IF NAZARIO'S INDICTMENT SPELLS out a rigid chronology of the killings for which he is accused, the eyewitness statements behind the indictment render the events in greater detail, but with more striking ambiguity. An NCIS agent named Mark Fox eventually tracks Cory Carlisle to Lawrence, Indiana, where he has lived and worked as a missionary for the Latter-day Saints. Sergeant Jermaine Nelson remained at Camp Pendleton, where Fox questioned him at the NCIS office over the course of an hour last March. In recorded interviews provided to L.A. Weekly by a source who wishes to remain anonymous, these two men recount seemingly similar but fundamentally different versions of the events of November 9.
Carlisle, interviewed by NCIS in the company of a Mormon church elder, recounts entering the house on Phase Line Henry. He is the point man, with Weemer immediately behind him. Sergeant Nazario, Sergeant Nelson and Lance Corporal James Prentice follow. Third Squad immediately discovers four unarmed males in a large living room, and Nelson begins questioning them. Carlisle alone identifies one of the prisoners, an older man with a white beard, wearing a long off-white shirt that Carlisle mistakenly refers to as a "turban." Nazario orders Carlisle and Prentice to clear, then search, the house.
In his separate NCIS interview at Camp Pendleton, Sergeant Nelson recounts interrogating the prisoners, who understand little or no English, demanding to know whether they have weapons. Carlisle and Prentice appear after searching the house with two AK-47 rifles; the weapons aren't chambered, but Prentice has found spent shell casings on the roof of the home.
"That's when Nazario starts gettin' fuckin' pissed," Nelson says. "'You said there were no weapons.' And shit, he just cocked him," Nelson continues as he recalls Nazario striking a prisoner. "BOW! Head bounced off the wall and shit. I was like, 'Yo! What the fuck are you doin'?'"
Nelson steps back and, according to the interview, watches as Nazario kicks the man in the groin twice. Using a personal radio with an earpiece mounted inside his helmet, Nazario then reports that 3rd Squad has taken four prisoners and found weapons. The conversation occurs on a radio channel used only by squad leaders and their commanders, so the transmissions aren't audible to the men in the room. Nelson watches as the sergeant's expression changes.
"What the fuck, nigga? I know you was on the radio. What'd they say?" Nelson recalls saying.
Nazario makes contact with his radio again. "'They said, 'Are they dead yet? Because we don't have all day.'"
Meanwhile, in his own interview with Fox, Carlisle recalls going back to the room, an office, where he and Prentice find the first rifle.
"That's when I heard the first gunshot and that's when I came out to see what had happened," Carlisle says. He knows from the gun's report that it is a 9 mm pistol. When he steps out of the office, he sees Weemer standing there with his pistol in his hand. "He went for my weapon," Weemer says of one of the prisoners, according to Carlisle's recollection.
Nelson describes a very different sequence of events: After receiving the radio order, Nazario pulls a prisoner from the ground and marches him to a kitchen.
"I heard the window shatter when he shot," Nelson remembers. He walks over to look at the body; it's of the oldest man in the group. "He shot him right in his fuckin' eyeball," Nelson says.
Nazario supposedly walks out of the kitchen livid: "Yo, I just did one. Now I'm not doin' all this shit by myself," Nelson recalls him saying. "So you're gonna do one and Weemer's gonna fuckin' do one and I'm gonna do another one."
Carlisle remembers appearing with Prentice in the middle of Nazario's discussion with his men. As he comes onto the scene, Carlisle looks down to see the body of the old man lying in the kitchen, his head circled by a pool of blood, and pans over to the three remaining prisoners lined up in the living room. One of the Marines asks Prentice "if he wanted to participate in shooting one of [the prisoners]," Carlisle recalls. Prentice is still upset about Lance Corporal Segura's death a few hours earlier and, Carlisle says, "he wanted to shoot one of them." But Carlisle dissuades Prentice, telling him "that he didn't want to do that."
Carlisle and Prentice try to exit through the home's front door. Another shot rings out. Confusion rolls through Carlisle's mind. "I knew I needed to get out of there," he remembers. He and Prentice turn back and walk past the prisoners in the living room; Carlisle glimpses the two survivors. "I do remember the individuals' faces," he tells Agent Fox. "They were, um, well, they'd just seen their buddy get shot and their faces wasn't exactly, um . . . I mean, they were pretty somber." Corporal Weemer meets Carlisle and Prentice and says, "We need to get out of here." Before the men make it to the building's back door, two more shots ring out.
Nelson's recollection doesn't match that version. He doesn't recall Carlisle or Prentice being present, other than to drop off the AK-47s the two had discovered. The only men he remembers being in the room are himself, Nazario and Weemer. He tells Agent Fox that after Nazario executes the first prisoner, Nelson fears what will happen if he refuses Nazario's order. Nazario gets in his face and Nelson pulls a prisoner aside. At this moment, each of the Marines — Weemer, Nazario and Nelson — controls a prisoner.
Nelson remembers what was going through his mind: "I was gonna wait to see if he was really serious about this shit."
Nazario, according to Nelson, then shoots a prisoner at point-blank range with the muzzle pressed to his forehead. The man falls, but blood and brain matter pour across the floor. "I didn't want this motherfucker's brains and shit all on my boots," Nelson recalls Nazario saying. "Hurry up," he orders Weemer and Nelson.
Standing over his prisoner, who is kneeling in front of him, Weemer fires multiple shots from his pistol, according to Nelson. "He was just lettin' it ring," Nelson recalls. The prisoner crumples to the floor and rolls with the impact of the bullets.
"So, I'm like, well fuck it, you know, I guess," Nelson tells Agent Fox. "That's when I fuckin' — I shot my guy."
Outside, Carlisle finds his way back to the platoon's formation. He passes a Marine who asks what had happened. Carlisle can only muster an "I don't know." But his mind reels. "I was still trying to process 'Okay, what could I have done?' but there wasn't anything I could've done," he tells Agent Fox.
Nelson follows the rest of the squad outside moments later and bumps into a friend, Pedro Garcia from Weapons Company, the unit that Nelson has been drawn from. "Dog, I'm not a bad person. You saw what happened," Nelson tells him. "He gave us the order to do this shit." He recalls that Garcia "looked like he was about to cry and shit."
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."
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. Weekly about 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.
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.
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 SIT across 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.
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.
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.
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