Trying Soldiers in Civilian Courts

Passed by Congress in 2000, the Military Extraterritorial Jurisdiction Act was designed to allow the prosecution of civilians contractors employed by the Department of Defense for crimes committed while overseas on official business. The original intention was to close a loophole allowing civilians to escape prosecution for serious crimes because they were not subject to military law and U.S. prosecutors lacked jurisdiction. The law is set to be used for the first time tomorrow.

Former Marine Sgt. Jose Nazario, 28, is accused in the killing of four Iraqi prisoners. Nazario is charged with voluntary manslaughter, assault with a deadly weapon and discharging a firearm during a crime of violence in the alleged killing of the four Iraqi prisoners during the battle in Fallouja on Nov. 9, 2004. Nazario left active duty when the Naval Criminal Investigative Service began its investigation making it impossible for him to face military justice as the two others charged in this case are.

The Nazario case is important for several reasons. As the first case to be brought under the Military Extraterritorial Jurisdiction Act it will be breaking ground and setting precedent for the law. It will give us some idea of how civilians will react to things that occurred in war zones. The case will also have a big impact on the potential cases brought against those who the law was designed for, civilian contractors.

The civilian contractors in Iraq need to be held accountable and this law has the potential to do it. The other potential high profile case that may be brought under this law is the one against the employees of Blackwater. Specifically, there are potential charges against three Blackwater guards present at the time of the Sept. 16 incident in Baghdad's Nisoor Square where 14 Iraqi civilians were killed and 18 injured.

The Nisoor shooting is only one of many incidents that enraged the Iraqi people against the US. The Iraqis do not generally distinguish between the private Blackwater and the American Government or US military. Apart from angering the Iraqis the shootings also angered many in congress who were upset over the inability to hold the private security contractors accountable.

The incident that Nazario is alleged of perpetrating is described in the LAT

Nazario, the squad leader, allegedly had radioed to his superiors that the squad was holding four male prisoners after storming a home used by suspected insurgents.

"Are they dead yet?" an unidentified Marine allegedly asked Nazario over the radio.

Taking that inquiry as an order to kill the four, Nazario killed two of them and ordered Weemer and Nelson to kill one each, according to documents filed in Riverside federal court.

The question of trying Nazario in a civilian court has created divided opinions. One group believes that trying Nazario in civilian court exposes him unfairly to people who could not understand what pressures he was under. The other group feels it is unfair to try soldiers in civilian courts because the civilians will be too deferential to the soldiers as we have been told to “support our troops”.

"I'd love for my guy to be tried by civilians," said attorney Joseph Low, a former Marine who represents Sgt. Jermaine Nelson, 26, who is set for court-martial in December. Also charged in the case is Sgt. Ryan Weemer, 25.

The opponents claim

"He can only get a fair shake if those civilians are honorably discharged Marines who fought" in Fallouja, said William McNulty, secretary of the Marine Corps Intelligence Assn., a group of former Marines. "Soccer moms and pops can't understand the horrors of war or the complex set of [rules of engagement] that these Marines face."

That is true, but it works both ways. It is not fair to ask civilians to judge the soldiers in that way. The reason we have “jury of peers” is so that the people sitting in judgment have an understanding of the accused and can understand the circumstances, civilians cannot do that for the soldiers in this case. I am not sure why there is no provision to recall soldiers to active duty to face criminal charges even when discharged. It seems like something the military would do.

It is not fair to the soldiers or the civilians to have these trials in civilian courts. The government intends to present these action as occurring in cold blood when others paint the situation as complete chaos.

"In reality, the situation was far from the calm, organized environment the government prosecutors apparently intend to present to the oblivious civilian jury. The fighting was so fierce that the (3rd battalion, 1st Marine regiment) Battalion Aid Station received 197 combat casualties out of the 1,250-man reinforced battalion during the first 96 hours, according to Marine Corps records."

There needs to be a way to try soldiers by soldiers. There is also some question about whether the law should even apply in this case. In any event the case will be followed closely and its outcome will have big repercussions.