Fallujah Defendants Say They Will Not Testify
Against Hell House Comrade at Upcoming Trial
by Nathaniel R. Helms |
August 15, 2008 | 11:04 PM EST |
pdf
Two Camp Pendleton Marines, ordered
to testify against former sergeant Jose L. Nazario by the US District
Judge presiding over his voluntary manslaughter trial, have decided to
refuse the judge’s order.
Kevin B. McDermott, the Orange County
attorney representing Nazario, says he received the news this morning.
“It shows the solidarity of these Marines,” McDermott says.
Nazario is charged with two counts of
voluntary manslaughter for allegedly executing two captured enemy
combatants, compelling his subordinates to assist him in killing two
others, and unlawfully using a firearm--his M-16 rifle--in the
commission of the crime.
Weemer and Nelson face general
court-martials for murder and dereliction of duty at Camp Pendleton
for the same incident.
The two also face possible time in a
civilian jail for criminal contempt if they follow through on their
decision to remain mum, according to Christopher D. Johnson, the
public defender appointed to represent Weemer in the civilian court
proceedings.
Both Marines have been subpoenaed to appear
at Nazario’s trial in US District Court in Riverside, California, on
August 19th when the trial is scheduled to commence, court
records show.
Yesterday Defend Our Marinesreported that after Sgt Nelson was charged with murder, and while he
was being represented by an appointed Marine Corps lawyer, Nelson
tried to entrap Nazario in a series of telephone conversations with
his former squad leader. Coached by an NCIS agent, and with a tape
recorder running, Nelson attempted to get Nazario to admit that he was
complicit in the alleged executions.
Nelson’s attitude toward cooperating with
the government changed markedly after the 26-year old Hell House
veteran retained the services of Joseph Low, a former Marine who now
represents him.
In May, Low
toldDefend Our Marines
he didn't represent "rats." In July, the occasionally caustic former
Marine enlisted man asked the military judge presiding over Nelson’s
court-martial to approve the testimony of a specialist in "forced and
false confessions."
Since then Nelson has been incarcerated
twice for civil contempt after refusing to testify before a federal
Grand Jury. The first time he was jailed in Los Angeles in May, and
again in the San Bernardino County Jail during June, where he joined
Weemer after he refused to talk.
Presiding US District Judge Stephen G.
Larson let them out in time for the 4th of July holiday
without dismissing the civil contempt citation that still hangs over
them.
US Attorney Thomas P. O’Brien on Monday
asked Larson to issue the orders again compelling sergeants Nelson and Weemer to testify in return for immunity from prosecution for what
they might reveal.
Case wobbles, may fall down
Without their testimony the government’s
case lacks the foundation to prove that a crime occurred on November
9, 2004 when the four insurgents were allegedly executed, numerous
lawyers contend. Unless the government can produce physical and
forensic evidence, or the identities of the alleged victims, it faces
serious obstacles ever establishing that a crime was committed without
their eyewitness testimony.
Nazario had just led his squad of Marine
infantrymen from 3rd Platoon, Kilo Company, 3rd
Battalion, 1st Marines across the line of departure when
they allegedly encountered the missing insurgent victims during a
firefight, the government says. After taking them in custody and
recovering their weapons and ammunition the squad allegedly received
radioed orders to kill the prisoners and move out.
The government claims Nazario then urged
Nelson and Weemer to help execute the prisoners, which they did.
According to the government’s application for the order compelling Weemer
and Nazario to testify, they were supposed to implement the carefully
choreographed instructions all 1st Marine Division
personnel received for handlings enemy prisoners before the battle
began. The government claims:
During Operation Phantom Fury, the Marines
had established detailed guidelines for the proper handling of
detainees. All Marines units carried flex ties that were to be used to
handcuff detainees. Once persons were captured and searched, they were
to be transported to the train station just north of the city, which
served as a base of operations for US forces. At the train station, an
officer was designated to process the detainees. On November 9, the
first day of the ground assault, defendant’s battalion captured
approximately 25 detainees. Overall throughout the battle, hundreds of
enemy insurgents were captured and detained.
But 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 3/1 Battalion Aid Station received 197 combat
casualties out of the 1,250-man reinforced battalion during the first
96 hours of combat, Marine Corps records show.
Many of the wounded Marines had to wait for
as much as an hour or more for transportation to take them off the
battlefield because the roads were frequently interdicted by enemy
fighters. The Marines reported the insurgents laid down their weapons
in one area and then moved to another pre-positioned stock of arms to
resume the fight.
That practice reportedly stopped after the
rules of engagement were liberalized so they could be killed when they
were observed, the Marines said.
The first batch of prisoners captured by
Kilo were taken at the Al Jamah Kabir mosque, the same mosque where a Marine sniper
attached to Kilo was videotaped by a television news crew shooting a
wounded insurgent in the head. A later investigation revealed that the prisoners had
already been captured once and then abandoned to their fate until
Kilo’s Marines encountered them the second time.
After the news moved on to other calamities
the Marine Corps exonerated the young Marine sniper, promoted him to
sergeant, and allowed him to go home unmolested for discharge. That
would not happen again.
According to both the 3/1 After Action
Report and witness recollections, 3rd Platoon, Kilo Company
didn’t capture any prisoners again until much later in November, after
the enemy’s back was broken and the insurgents began giving up en
masse.
The handful captured by 3rd
Platoon along Phase Line Henry were detained after the November 13
Hell House engagement. They were captured by the squad led by Sgt
Christopher T. Heflin. He was killed on November 16 by enemy mortar
fire, battalion records show.
The battalion certification for the Combat
Action Ribbon awarded to surviving members of Nazario’s squad at the
conclusion of the battle paints a far more realistic picture of the
actual environment Nazario and his squad encountered at Fallujah; a chaotic,
death-filled city where Marines began dying as soon as they crossed
the line of departure on the morning of November 9.
On 8 November to 15 December, the Battalion participated in high
intensity, urban combat in the City of Fallujah, in support of
Operation PHANTOM FURY. During the Battalion’s assault in the City of
Fallujah, every Marine and Sailor was attacked by direct and indirect
enemy fire. The fighting in the city was so intense, that many
engagements were fought at distances less than 10 meters. IEDs were
used as booby traps upon entering a building, and abandoned cars were
used as massive bombs. During the assault, the Fire Support Teams
would shape the battlefield using air strikes and artillery strikes
shaped the area of operation before the Marines and Sailors began
their assault south through the city. The Marines and Sailors would
then search and clear every building to root out insurgents still
occupying positions. Numerous enemy forces barricaded themselves in
well-fortified houses, which made entry into the houses extremely
difficult. Every attempt was made to enter an enemy strongpoint, to
include using grenades, SMAW rockets, and demolition. The Battalion
Headquarters, located at the train station north of the city, was
constantly attacked by enemy direct and indirect fire. These attacks
caused many casualties, to include the death of a Marine on the 81mm
Mortar gun line. Logistical convoys were dispatched from Camp Abu
Ghurayb to deliver supplies to the forward Companies. On multiple
occasions, logistical convoys were attacked by RPGs and small arms
fire from adjacent houses to roads leading in and out of the city. It
was apparent that the threat was not just in front of the Battalion,
but it surrounded it.
Simply stated, one Marine
officer who was there said, “prisoners weren’t a priority.”
__________________________________________
Nathaniel R. Helms
Defend Our Marines
15 August 2008
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam veteran, former police officer, war
correspondent, and, most recently, author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).
