Marine Sgt. Jermaine A. Nelson has been ordered to testify against a former squad leader charged in federal court with killing two Iraqi prisoners at Fallujah, Iraq, in return for testimonial immunity.
Nelson, charged by the Marine Corps with unpremeditated murder and dereliction of duty, has been ordered to testify against former Sgt. Jose L. Nazario at a federal Grand Jury hearing evidence against him in Riverside, Calif.
Under current federal rules anything Nelson reveals that is not already in the hands of federal prosecutors cannot be used against him at his own court-martial, a lawyer defending Nazario said.
Nazario was a Riverside police officer until being arrested and charged with two counts of voluntary manslaughter for allegedly killing two of four enemy combatants his squad captured at Fallujah on Nov. 9, 2004. He was arrested on Aug. 7, 2007, three weeks before completing his probationary period.
The government is seeking to enhance the voluntary manslaughter charges against Nazario to murder. Nelson is the only reputed eyewitness to the alleged incident. Nazario is currently scheduled to stand trial on July 8 in the U.S. District Court for Central California in Riverside, according to his defense attorney, Kevin B. McDermott.
Lt. Gen. Samuel Helland, commander of the U.S. Marine Corps Forces Central Command, referred charges against Nelson Monday for allegedly killing of “an unknown unarmed detained person” during the same incident. Prosecutors say that Nelson and two other members of his squad shot the four unarmed prisoners during the opening hours of the monthlong battle.
“Nelson is weighing whether to accept immunity or take a contempt citation,” McDermott said.
Nelson, 26, and Nazario, 28, were both assigned to Kilo Company 3rd Battalion, 1st Marine Regiment at the time. Nelson was charged after making two confessions to Naval Criminal Investigative Service Special Agent Mark Fox in the spring of 2007. Nelson made the statements after waiving his right to legal counsel, the preamble to his taped confessions reveal.
Nelson told Fox he shot an unknown insurgent on orders from Nazario after his squad leader received the order to do so over his intersquad radio.
Nazario was indicted by a federal Grand Jury two weeks after being arrested. He is charged under the Military Extraterritorial Jurisdiction Act passed by Congress in 2000 to allow service members serving overseas to be prosecuted in civilian court for offenses that call for more than one year of imprisonment.
Three other captured combatants were allegedly killed that morning in Nelson’s presence, he confessed to Fox. Nelson said the killings occurred a few hours after Kilo Company begin its attack on the al-Qaeda-led insurgent army that had gained control of the city.
Another combatant was allegedly shot to death by Sgt. Ryan Weemer, at the time a corporal in 3rd Platoon, Kilo Company. Nelson claims Weemer shot an elderly Iraqi man numerous times with his pistol.
Weemer was recalled to active duty from the inactive reserves in mid-March to face murder charges he inadvertently initiated more than two years. He was charged with unpremeditated murder and dereliction of duty as soon as he reported to Camp Pendleton.
McDermott said he is still waiting to discover if Weemer had been granted immunity similar to Nelson’s government offering to testify against Nazario. If he refuses to testify he would also be liable for contempt proceedings.
Weemer has not made any public statements since he first revealed the alleged killings to a reporter in the spring of 2006. His attorney has declined numerous invitations to comment since Weemer was charged.
Expected to testify against the three Marines already charged is former Lance Cpl. Corey J. Carlisle, 26, in March and April 2007 a Mormon missionary in Indiana who said he was inside the building when the four prisoners were reportedly killed. During the incident Carlisle said he found two AK-47 rifles hidden inside the house and spent ammunition on the roof.
Carlisle told Fox that the first insurgent prisoner to die was an old man with a white beard. He surmised that Weemer had killed him with a single shot from his pistol, Carlisle said.
After hearing the gunshot he went into the kitchen where Weemer was to investigate what happened. In the kitchen Carlisle encountered Weemer standing in front of a dead insurgent, he said.
Carlisle told Fox that Weemer claimed the prisoner had made a move to take away his weapon – a 9mm pistol he was holding in his hand. The prisoner had been shot in the head, Carlisle said in his taped interview.
In his two taped confessions Nelson told Fox that Weemer had shot the old man over and over again.
Moments later, after a conversation with Nazario, Carlisle told Fox that he forcibly ushered away Lance Cpl. James L. Prentice, a squad member eager to kill another prisoner at Nazario’s behest. Nazario says the conversation never happened.
Carlisle said Prentice was angered that Lance Cpl. Juan Segura had just died after being shot outside the house moments before they assaulted it. After convincing Prentice not to get involved Weemer, Prentice, and Carlisle left the building, he claimed.
During the two minutes it took to exit the building Carlisle said he heard three more shots that he presumed to be Nazario finishing off the three combatants in his custody.
Weemer initially revealed the alleged incident during a job interview for a uniformed Secret Service position in Washington, D.C., in 2006, he said. The allegations came to light when Weemer told federal investigators he had witnessed the unlawful killings while serving under Nazario in Iraq.
After his revelations were passed on to the Naval Criminal Investigative Service in late 2006 it began a 14-month investigation into the alleged killings.
In Fox’s subsequent affidavit in support of his complaint against Nazario filed last August Fox claimed that Nazario — in the heat of combat — killed two prisoners in retaliation for the death of his friend Lance Cpl. Juan Segura. He believes Nelson and Weemer killed two other prisoners.
Nazario denies the event happened and Weemer initially claimed that he was merely a witness to the incident. When revealing the alleged killings for the first time to a reporter in the spring of 2006, Weemer claimed that his squad had chased eight Iraqis into the building where they later died.
Several other former Kilo Company Marines anticipate they will face criminal charges for their still unspecified roles in the burgeoning Fallujah debacle. The Marine Corps is still trying to determine who gave the reported order to Nazario, Marine and defense lawyers familiar with the charges say.
The court hearing Nazario’s case recently denied defense motions arguing civilian courts had no jurisdiction in purely military decisions. Until the law was passed in 2000 service members who had completed their military obligation could not be prosecuted in civilian courts for offenses that occurred while they were in military service.
Nazario is the first Marine and second member of the U.S. military to be charged under the act.
There is no substantial case law to help courts and judges examine the intent and constitutionality of the law, numerous legal experts have declared.
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