by Nathaniel R. Helms | July 30, 2008
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A Navy Cross recipient is among the Marine veterans of the Battle of Fallujah getting subpoenaed to a US District Court in Riverside, California where former comrade-in-arms Jose L Nazario is scheduled to go on trial for allegedly executing two captured enemy combatants in the opening hours of the battle.  

When the battle erupted on November 9, 2004 Nazario was an infantry squad leader in 3^rd Platoon, Kilo Company, 3^rd Battalion, 1^st Marines – the Thundering Third. He is scheduled to go on trial Aug 19 for voluntary manslaughter and related charges after allegedly killing two insurgents and ordering Marines under his command to execute two others.

Navy Cross recipient R.J. Mitchell, who earned the nation’s second highest award for valor at the famous “Hell House” fight, is among the witnesses ordered to appear at the US District Court in Riverside, California. At Fallujah, Mitchell was a corporal leading another squad from the same platoon when Nazario’s Marines reportedly encountered the four armed insurgents hiding in a house.

Mitchell was interviewed by Naval Criminal Investigative Service Special Agent Mark O. Fox in Phoenix, Arizona two years ago. Mitchell has repeatedly said that he has no knowledge of the alleged incident.

The most maligned small combat unit in American military history

Most of the witnesses the government intends to call are former members of 3^rd Platoon, one of the most renowned and certainly the most maligned small combat unit in American military history.

Eight enlisted men from 3^rd Platoon have been charged with committing murder and other serious crimes in Iraq in three unrelated incidents spanning several years. Six of the accused were blooded in the November 2004 battle to retake the city from entrenched al Qaeda led insurgents.

More Kilo Company Marines, including the officers and NCOs leading them at Fallujah, face similar treatment if the government proves its case, sources say.

In addition to Mitchell, the growing list of government witnesses includes former members of Nazario’s squad, Marines fighting in the general vicinity, and senior Marines assigned to Kilo Company during the alleged encounter, sources said.

Many of the active duty and former Marines facing possible incrimination have already “lawyered up” in anticipation of a long and ugly inquisition by government prosecutors, they said. Others have refused to cooperate or made themselves difficult to find, sources said.

If Nazario is convicted it will be the first time in American jurisprudence a service member engaged in lawful combat has been convicted of killing an enemy soldier whose existence is not even a certainty. Adding insult to injury is the government’s recent superseding indictment charging Nazario with unlawfully using his military issue rifle to commit the alleged crime.

Prosecutors got plenty of nothing

The government has no bodies, identities, missing person reports, or crime scene to buttress its prosecution. Instead, government prosecutors are relying on the conflicting statements of battle-rattled Marines to make their case, said Nazario’s lawyer Kevin B. McDermott.

At the top of the government’s list of witnesses are accused murderers Sgt. Ryan Weemer and Sgt. Jermaine Nelson, Nazario's co-defendants (read Sgt Weemer's subpoena at the link). Both Marines are currently under open arrest at Camp Pendleton pending general court-martial for unpremeditated murder and six counts of dereliction of duty.

Weemer and Nelson were jailed for civil contempt of court by federal judges in May and June for refusing to testify before a Grand Jury seated in Riverside, Calif. after being granted testimonial immunity by prosecutors to do so.

Theirs is truly a Hobson’s choice, one observer noted.

If Nelson and Nazario refuse to testify in open court both Marines face mandatory six to 18-month federal jail sentences for criminal contempt. If they testify the endangered duo faces potential life sentences for murder because the government’s grant of testimonial immunity only protects them from revelations the government doesn’t already know about.

Both men vowed to the federal judges who sent them to jail for refusing to talk to the Grand Jury that they will never talk - again.

Weemer revealed the alleged killings to Secret Service agents in 2006 during a job interview to be a uniformed Secret Service officer. His statement was forwarded to the Naval Criminal Investigative Service for investigation.

In November 2006 Fox and another NCIS agent visited Weemer at his job in Chesterfield, Missouri and then interviewed him again at a nearby hotel after Weemer agreed to waive his right to legal counsel.

During that recorded interview the thoroughly confused and obviously rattled Weemer told Fox that he killed one insurgent with two shots from his pistol after Nazario told him to do it. He said he later saw two more bodies, but didn’t know how they died.

Fox: Okay, and who was in the house when you came back in?

Weemer: I just remember Nazario was there, some – somewhere.

Fox: Okay. How many – how many bodies did you actually see? You saw the one – you know about the one that you had shot…

Weemer: I think there was a second and another one.

Fox:  And a third one?

Weemer: Um hum.

Fox: Do you know who shot either…

Weemer: I don’t know.

Fox: … of those two?

Weemer: That I don’t know.

Weemer’s statement, as well as other incriminating statements provided by Nelson before he obtained legal representation, led Fox to file a criminal complaint against Nazario in US District Court ten months later.

Nazario was charged under a law written in 2000 to give the federal government a mechanism for prosecuting American citizens involved with the Armed Forces who are charged with criminal offenses in foreign countries where the US doesn’t have legal jurisdiction.

Conspicuously absent from the current list of government witnesses is Jesse Grapes, in 2004 the 3^rd Platoon commander at Fallujah. Senior Marine officers – including Brig Gen John Toolan – described Grapes as one of the finest small unit leaders in the Marine Corps.

Last year Grapes was briefly recalled to active duty and then released after reportedly refusing to cooperate with investigators.

“The government doesn’t want to give Grapes immunity", one source said.

Investigators continue search for the identity of the Marine on the radio

Multiple sources told Defend Our Marines that the “real target” of the investigation is the Marine or Marines who authorized the unlawful order to kill the prisoners and then relayed it over the radio.

The Marine radio operator carrying the platoon radio told investigators last year that he doesn’t remember hearing the alleged order to kill the prisoners being given over the radio he was operating.

Former Marine LCpl James B. Crossan, a veteran of Fallujah who was grievously wounded in the infamous ambush at Haditha a year later, said so in a recorded interview with Fox almost 18 months ago.

Fox: What would have been the procedure say if one of the other squads, a squad you weren’t with, 1^st or 3^rd Squad, had taken prisoners, what would have been the procedure?

Crossan: Talk to command, tell them they’ve got some detainees, and they would send up somebody, the supply guy, to check them out.

Fox: When you say command, what command is that?

Crossan: They [squad leaders] would talk to me and then I would talk to higher ups.

Fox: Did you receive any calls [about prisoners] from any of the squads that day?

Crossan: I don’t remember.

Undeterred, Fox continued interviewing Crossan for several more minutes before trying again.

Fox: During that day, I am told, is a group of Iraqi males were encountered. They were detained and Sergeant Nazario called in to somebody and said, "We’ve detained these individuals and what do we do with them." And the response he received was "Are they dead yet?" And he asked whoever he was talking to come again and again it was "Are they dead yet?" Did you hear any communication like that that day?

Crossan: Not that I remember.

Fox: Do you think you would remember if that had been said?

Crossan: Probably not. No.

Still in the air is whether Nazario might have received the mystery order over an inter-squad (ISR) IC-4008M radio issued to the squad leaders and other senior Marines in the platoon. At least seven of the “hands free” radios were issued to Grapes, the senior NCOs spread around the formation, and all three squad leaders before the platoon crossed the line of departure at Fallujah.

One squad leader was subsequently killed during the battle and both Mitchell and Nazario deny ever hearing such a command. The platoon sergeant, medically retired Gunnery Sergeant Jon Chandler, told Fox he didn’t know anything about it, and former Platoon Guide SSgt Christopher Pruitt declined to be interviewed, as did Grapes.

The low power ISR radios can only be heard by individuals wearing specially designed headsets. Photographs taken at the time reveal that the platoon command staff and all the squad leaders were wearing them.

Nazario had his on when his Marines discovered the four enemy combatants barricaded in a locked house just yards away from where one of their members had just been killed by small arms fire, he said.

He says he never received radioed orders over his ISR or any other kind of radio to kill the prisoners.

Even if Nazario had received the order nobody else could possibly have heard it that didn’t have a radio set on the same frequency and a headset, according to Marine Corps operating instructions for the device.

The government maintains that Nazario, after receiving radioed instructions from higher authorities to kill the combatants, ordered Nelson and Weemer to help him execute them.

The government’s account is disputed in numerous respects by every witness Fox interviewed. Lance Corporal James Prentice, who says he was standing next to Nazario when the alleged order was received, swore the alleged execution command arrived via Nazario’s backpack radio. That particular device has a handset that makes it impossible to mistake for an inter-squad radio.

Prentice: That’s about the point where Sgt. Nazario called in on the radio and said that they have four, ahh, fighting age males in the house. At any rate they took fire from the house, what do you want us to do? And they pretty much told them – asked them – "Are they dead yet?" He (Nazario) said negative and they said, "Make it happen." They said, "Roger, so I copy," and then both… 

Fox: Could you hear who they were talking to?

Prentice: No, I heard that is what happened in a conversation with Sgt. Nazario when both we were talking to each other right after he got off the radio.

Fox: What kind of radio did he have?

Prentice: A One-Nineteen (119) he was using and then ahh…

Fox: That is not for inter-squad conversation is it? That is for inter-platoon or company?

Prentice: Yes.

Accused wait for big day in court

Nazario was arrested August 7 2007 while on patrol as a rookie police officer in Riverside.

Nelson, still on active duty, was arrested and charged a month later and then freed by General James N. Mattis pending further investigation. He was charged again in January 2008.  

Weemer was recalled to active duty from his home near Louisville, Kentucky in March and then charged.  

Last month the federal Grand Jury in Riverside investigating the matter handed up a superseding indictment charging Nazario with two counts of Voluntary Manslaughter, Assault with a Dangerous Weapon, Discharging a Firearm during a Crime of Violence, and Causing an Act – multiple murder – by Nelson and Weemer.

The Marine Corps says it killed at least 3,000 insurgents and destroyed most of the ancient city during the month long battle. While doing so almost half the Marines in the Thundering Third were wounded at least once and 33 of them died.

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Nathaniel R. Helms
Defend Our Marines
30 July 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).

© Nathaniel R. Helms 2008

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