Fallujah Marine Faces Charges of Conspiracy to Murder in Federal Court

The witness in one case against a Marine who had just joined Riverside, California Police, reportedly said he did not see the killings, but the Iraq vet was fired almost immediately over an allegation.

A fire burning in Iraq from an explosion. For some Marines and soldiers, the flames of this war continue to burn. Photo: DoD

(LOS ANGELES, Ca.) - Former Marine Corps Sergeant Jose Nazario may face charges of conspiracy to commit murder in Federal District Court in Los Angeles, California for killing eight Iraqi prisoners of war in Fallujah, Iraq in November 2004.

Jose Nazario was terminated by the Riverside Police Department after being named as a suspect in conspiracy to murder by the Naval Criminal Investigative Service. He was not terminated by the Los Angeles Police Department as previously reported.

Nazario said Wednesday he took and passed polygraph tests at both police departments before being selected by the Riverside Police Department for employment as a probationary patrolman. In both polygraph tests he was asked if he had ever participated in wrongful killings. In both instances he answered truthfully that he did not. Nazario passed both tests, he said.

Nazario was a squad leader in Kilo Company, 3rd Battalion, 1st Marines at Fallujah. He was implicated in the shooting of eight Iraqis as the result of statements made by former Corporal Ryan Weemer, a member of his squad. Both men belonged to 3rd Squad, Third Plt., Kilo Co. Weemer was a fire team leader under Nazario’s command. Weemer revealed the murders during a polygraph test administered by the Secret Service for its job application process, he said.

The Secret Service subsequently passed on Weemer’s allegations to NCIS, who initiated an investigation. Since then several former and at least one active duty Marine have reported being interviewed by NCIS Special Agents. Several of the Marines who spoke on the condition of anonymity said they were interviewed by S.A. Mark Fox. One former Marine Fox interviewed said the NCIS special agent told him they were trying to identify the Marine or Marines who allegedly gave an order to shoot the prisoners.

Two Marines from the same platoon face charges of multiple murder for the incident at Haditha a year after events at Fallujah unfolded. Lance Corporal Stephen Tatum and SSgt Frank Wuterich are charged with participating in the murders of 15 Iraqi civilians following an ambush of their squad at Haditha a year ago.

Two Marines charged in the same incident have already been exonerated for lack of evidence in that case. LCpl Justin Sharratt and Capt. Randy Stone have been cleared of all the charges by Lt Gen J. N. Mattis, the convening authority in the Haditha investigation.

Numerous attorneys who have been apprised of the allegations initially leveled by Weemer and filed by NCIS dismissed them as pointless. They said that without corroborating witnesses, physical evidence, a crime scene, or the identity of victims, the case would be impossible to prosecute, they opined.

Arraignment Thursday

Nazario reportedly will be arraigned Thursday before a U.S. Magistrate at the U.S. District Court in Los Angeles, California, sources close to the case said. Nazario is from nearby Riverside. Currently the charges against Nazario are sealed. One source said the NCIS was trying to compel Nazario to make a deal in order to escape prosecution. Nazario reportedly refused to cooperate. If he doesn’t cooperate the indictment will be unsealed and Nazario will be charged on Thursday, the source said.

NCIS spokesman Ed Buice said that “any comment regarding this case will need to come from the US Attorney's Office in Los Angeles.”

Thom Mrozek, the Public Affairs Officer for the U.S. Attorney's Office of the Central District of California, said he could not comment on the case in “any way, shape or form.”

“We are not in a position to make any comment on this. There is no public record of this right now, so no comment.”

Civilian court

The investigation was conducted and the complaint filed by the NCIS. The agency is the investigative arm of the United States Navy and has both military and civilian jurisdiction in criminal cases involving sailors and Marines. Their action is not unprecedented, court records show. Former service members charged with crimes that occurred while on active duty can be tried in civilian courts.

A former Army private faces rape and murder charges in federal District Court in Paducah, Kentucky after being discharged from active duty. Former Pfc. Steven D Greene allegedly raped and murdered a 14-year old Iraqi girl and her family after a drinking binge. Several of Greene’s former squad mates have already been convicted and sentenced in the case Greene pleaded not guilty before a federal magistrate and is awaiting trial. Squad member Pfc. Jesse Spielman was convicted and sentenced to 110 years in prison and three other soldiers who pleaded guilty under agreements with prosecutors received sentences ranging from five to 100 years.

Nazario’s case is considerably different. He was fighting in the heat of close combat when he allegedly conspired to kill the suspected enemy combatants. It is not clear without reading the secret indictment who he conspired with. Two or three days after the alleged shooting Nazario would be fighting at the famous Hell House incident, where two 3/1 Marines earned the Navy Cross in a single engagement.

Nazario reportedly denied any knowledge of the allegations. So far, Weemer is the only witness or evidence acknowledged by the government. He was named by NCIS agents while conducting their interviews as the original source of the allegations, former Marines said.

Critics of NCIS investigatory tactics are already claiming NCIS is bringing the charges to discredit Marines who might be witnesses in any courts-martial against members of 3/1 facing charges for murder and malfeasance in Haditha. NCIS spokesman Ed Buice has repeatedly declined to comment on the investigation, why it was ordered, or by whom.

“Combat and armchair quarterbacking don’t mix”

Weemer went into seclusion two months ago after retaining Cincinnati, Ohio attorney Paul L. Hackett after press reports revealed he had confessed to witnessing the alleged murders at Fallujah. In the past, Hackett said his client had never talked with NCIS investigators.

Hackett also said he had never met Nazario and was unfamiliar with his case, emphasizing he was unaware that charges had been leveled against anyone who fought at Fallujah. He declined to comment on Weemer’s role – if any - in Nazario’s impending indictment. Hackett is a former combat Marine who served at Fallujah during the vicious campaign there in 2004. He later ran for a Congressional seat in his hometown as a Democrat and lost.

“Combat and armchair quarterbacking don’t mix,” Hackett said Tuesday during a telephone interview from his Cincinnati law office. “Nobody knows what these men go through. I see the Weemers, and Nazarios, and Wolfs, and Kimbers,” naming other 3/1 Marines he has counseled. “They are all true heroes. They deserve to be allowed to come home and resume their lives without being molested.”

James Kimber, age 34, was a Captain in India Company 3/1 who was removed from command with his commanding officer Lieutenant Colonel Jeffrey R. Chessani and Captain Luke McConnell. Kimber was nominated for a Bronze Star for valor in Haditha, was relieved of command of India Company, 3/1 when marines under his command used profanity and criticized the performance of Iraqi security services during an interview with Britain’s Sky News TV, according to Hackett. Francis Wolf is a former Marine infantry sergeant and brilliant combat Marine who fought gallantly at Fallujah and Haditha. He was granted immunity to testify in the Haditha case and spoke glowingly of Chessani and the other Marines in 3/1 accused of misconduct.

More than two years ago Weemer revealed to government investigators that he had witnessed the “wrongful deaths” during combat operations in Fallujah of Nov 10 or 11, 2004 after being ordered by unidentified senior Marines to kill the captives. The eight Iraqis, dressed in so-called “track suits” frequently worn by the insurgents fighting in Fallujah, were captured along “Phase Line Henry” during heavy combat.

According to Weemer’s eyewitness account, the insurgent suspects had just fled from an area where other Marines had encountered fierce resistance. The insurgents, knowing the Marines’ Rules of Engagement prevented them shooting the fleeing men when unarmed, frequently ran from one strong point to another to take up hidden arms and resume the fight, Weemer said.

Weemer claimed during an interview for a book about Fallujah in 2006 that after the men were captured they were held under guard for a brief period before the Marines were ordered to move on. When his leader – whom Weemer did not identify – asked for instruction regarding their prisoner’s disposition, a cryptic voice responded, “They are still alive?” Weemer said the leader of their unit took that to mean “kill them” and the Iraqi prisoners were subsequently executed.

Weemer was unavailable Tuesday for comment. Hackett said Weemer is going to school in Kentucky and will have no comment.

“I have him in a box,” Hackett said, “and I intend to keep him there. He doesn’t need to be making any comments.”

Hackett also declined comment about the implications of Nazario’s reported predicament. He preferred describing Weemer and all the other Marines who fought at Fallujah as “heroes.” Hackett has represented four Marines who were either at Fallujah, Haditha, or both, he said.

According to sources, Weemer said in an affidavit filed with the NCIS complaint that Nazario took eight captured Iraqi men into another room of a house they were occupying and shot them dead. Weemer reportedly said he did not see the killings and did not participate in them.

Numerous Marines who were at Fallujah have denied knowing anything about the allegations Weemer made two years. Several of the same Marines have subsequently dismissed Weemer’s allegations to NCIS investigators as a total fabrication, they said. Others have refused to talk to them at all.

One Marine interviewed by Special Agent Fox last spring said he was told NCIS “had” to conduct the investigation “to protect the honor of the Marine Corps or America or something like that.” He said Fox wanted to know his squad’s disposition, who was present, and whether he ever heard anything about the alleged killings.

Several former Marines who were interviewed claimed an NCIS agent who contacted them raised the specter of recall to active duty if they failed to cooperate. Their claims are corroborated by one attorney representing a former Marine who said a Marine Corps prosecutor raised the possibility of recall to his client in his presence.

Note: Nat Helms is a Contributing Editor to Defend Our Marines. He served three tours in Vietnam and, most recently, is the author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007)

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This article was published on Salem-News.com with special permission from Nathaniel R. Helms and WarChronicles.com. Special thanks to DefendOurMarines.com.