In First, Former Marine to Stand Trial in Civilian Court for War Crimes

[WSJ_law_blog]

Former Marine Sgt. Jose Luis Nazario speaks about his trial at one of his attorney’s offices in Irvine, Calif., Aug. 16, 2008. (AP Photo/Sean Dufrene)

Today will mark the first time that a former Marine will stand trial in civilian court for crimes said to have occurred during the fog of war. Under the Military Extraterritorial Jurisdiction Act, a little-known law, prosecutors are pursuing manslaughter charges against Jose Luis Nazario for crimes he allegedly committed while a Marine Corps sergeant in Iraq in 2004.

Here’s the front-page story on Nazario’s trial from the WSJ’s Nicholas Casey.

According to members of Nazario’s squad, as he was leading his soldiers through three weeks of house-to-house fighting in the Iraqi city of Fallujah, they entered a house and found unarmed men hiding under a staircase. Those men, according to testimony of some in Nazario’s squad, didn’t leave the house alive.

Nazario, 28, denies the charges and has pleaded not guilty. “The incident never occurred,” he said in a recent interview. Hypothetically, however, he defended the actions of Marines caught in such circumstances. “If it did occur,” he said, “I don’t see what our options would have been.”

Two of Nazario’s squad now await a military court-martial for allegedly killing unarmed men there. But Nazario left the Marines — and thus the jurisdiction of military prosecutors — in 2005 with an honorable discharge and a medal of valor.

Nicholas writes that Congress passed the MEJA in 2000 to address the increased use of contract personnel, who were subject to neither court-martial nor civilian trials. Passage of the Act coincided with congressional debate centered on crimes local authorities didn’t pursue, such as domestic abuse in contractor families or drug trafficking to soldiers by Americans on foreign soil. The law was seen as closing a loophole.

Kevin B. McDermott, Nazario’s attorney, asks: “How is it possible that our Congress sitting in Washington can make it a crime for an American citizen to kill a foreign national in a foreign country?”