Judicial Waterboarding

“JUDICIAL WATERBOARDING” OUR MARINES

By: GI Wilson and William McNulty

Marine Sergeants Jermaine Nelson and Ryan Weemer are currently in jail for refusing to testify in a civilian war crimes trial against fellow Marine and former squad leader Jose Nazario, now a civilian and honorably discharged Marine. Released due to public outcry after his initial incarceration, Nelson was again jailed on June 24, 2008, for steadfastly standing by Nazario. Lacking concrete physical evidence of an alleged crime, Jerry Behnke, an over-zealous U.S. Attorney from California, resorted to “Gitmo” style coercion (i.e. judicial waterboarding) to force active-duty Marines Sgt. Nelson and Sgt Ryan Weemer to testify against Nazario in a civilian Grand Jury hearing. Denying these Marines the opportunity to avoid self-incrimination, Behnke used legalistic instruments of duress (i.e. wired pleas, immunity offers, contempt of court orders, and jail time) to break the wartime bonds of combat Marines. This case is not only morally wrong and legally questionable, but also reveals negligent military leadership, political maneuvering, rogue behavior by U.S. Attorneys, and a faulty federal statute drafted in the wake of stories of abuse by U.S. civilians serving overseas.

At issue is the Military Extraterritorial Jurisdiction Act (“MEJA”), with which federal judges must struggle when prosecutors like Behnke resort to “judicial waterboarding” of military personnel. According to the June 16, 2004 statement by Senator Jeff Sessions (R-AL), MEJA “provided U.S. Federal courts with jurisdiction over civilian employees, contractors, and subcontractors affiliated with the Department of Defense who commit crimes.” Amending MEJA through H.R. 2740, Congressman David Price (D-NC) said on October 3, 2007, “Put simply, this legislation ensures that the U.S. government has the legal authority to prosecute crimes committed by U.S. contractor personnel working in war zones.” MEJA was never intended to be used against U.S. military personnel engaged in active combat. Born out of stories of rogue private security contractors, MEJA was created to hold these civilians to the same standards that U.S. military members face under the Uniform Code of Military Justice (“UCMJ”). However, it now appears MEJA is being used against service members in an improper attempt to supersede the Military Justice system which has served our Military and nation well since June 30, 1775, when the Second Continental Congress established 69 Articles of War to govern the conduct of the Continental Army.

Ironically, given the numerous cases of reported private contractor abuse, only one private contractor has been indicted by the Department of Justice (“DoJ”) under MEJA for any sort of physically abusive or violent crime. According to JURIST, a Web-based legal news service at the University of Pittsburg School of Law, MEJA prosecutions are initiated and paid for by local U.S. Attorney’s offices, creating “significant internal disincentives to prosecute.” Why then would the U.S. Attorney’s Office suddenly decide to prosecute Marines under MEJA? With no hard evidence of an alleged crime, why has Behnke’s office wasted limited government resources on such a weak case? Why is the U.S. Attorney’s Office prosecuting Nazario under a statute that does not even apply to Military members acting in the course of their sworn duties?

Rep. Henry Waxman (D-CA), Chairman of the House Committee on Oversight and Government Reform, along with many of his congressional colleagues, have expressed displeasure over the lack of war crime prosecutions by the DoJ under MEJA. One must wonder whether congressional defeatists, discouraged by the lack of war crimes convictions in military courts-martial, have placed undue pressure on the federal judiciary to pursue charges against Marines in civilian courts. When the military court-marital process did not produce the preconceived results desired by some members of Congress (throwing U.S. Military personnel in jail rather than terrorists), Waxman’s zeal for more MEJA prosecutions may well have inspired Behnke’s enthusiasm for “judicial waterboarding.”

Now, it appears senior Department of Defense (“DoD”) leaders are waiting to see which way the political winds might blow before taking a position on MEJA -- all the while offering up young enlisted Marines as sacrificial lambs to the congressional gods. We are led to this conclusion after seeing Nelson and Weemer confined to jail by a U.S. attorney who seems to be motivated by political considerations.

To make matters worse, according to his Sergeant Major, Sgt Nelson, after three tours of combat, will now be denied pay as a result of his second arrest and confinement in a civilian federal jail (surrounded by gang members, drug dealers and rapists). Considered UA (unauthorized absence), not only has Sgt Nelson been denied his Constitutional rights, which no longer seem to apply to the military, he will now lose his apartment, his possessions, and his beloved Corps. Nazario, Nelson, and Weemer have honorably served their country in combat and steadfastly stood by their fellow Marines. They hold true to a code taught early on to every Marine: “Semper Fidelis (Always Faithful).”

Should not senior leadership be faithfully supporting these Marines while they demonstrate the moral and physical courage of loyalty? Should Nazario, Nelson and Weemer not be presumed innocent until proven guilty? Why are senior Defense Department leaders not objecting to the U.S. Attorney’s actions? Is the Justice Department trampling the UCMJ system and improperly subjecting Marines instead to civilian legal apparatus, and if so, then why? The Commandant of the Marine Corps and General Mattis were in command on the ground in Iraq when these very Marines were fighting for their lives in the streets of Fallujah. Is not a commander responsible and accountable for everything his subordinates do? Ranking officers should be aware that in all likelihood they are next in line for persecution. There can be no doubt that the big trophies are what the DoJ and congressional defeatists ultimately prefer.

An African-American Marine, a Mexican-American Marine, and a white Marine – it matters not, they’re all Marines. Were this any other institution in our nation, the politically correct crowd would be celebrating this loyal trio as an example of successful cultural diversity. Instead, the lives of these Marines hang in the balance as a noncombatant civilian U.S. attorney with an apparent political agenda is questioning their wartime decisions. How are civilian jurists to understand the house-to-house and hand-to-hand fighting that took place in Fallujah? How can any U.S. Attorney deem themselves entitled and capable to prosecute and judge these Marines without walking in the death-shadows of their combat boots?

As Sgt Nelson said when being led away in shackles, “Hell and federal lock-up have nothing on what we experienced in the streets of Fallujah.” Despite the risk to their liberty and livelihoods, three individuals, from very different walks of life - combat hardened Marine brothers - are unwavering in their support for each other in the courtroom just as they were on the battlefield. Just as a wife cannot be forced to testify against her husband, neither should a Marine be forced to testify against a wartime buddy.

We don’t believe MEJA was intended for the purpose of prosecuting decorated combat Marines. Not only is the Military more than capable of investigating alleged war crimes on its own, but the foundation of our American system of justice demands such judgment by peers. We take issue with this statute, with over-zealous investigators and politicians, and with senior DoD leaders who do not publicly challenge the legality and jurisdictional reach of MEJA – all while enlisted Marines languish in jail.

An old Master Guns once said, “The Corps will screw you every time -- but your Marine buddies will never let you down.” Sadly, these three Marines, are living proof of that.

William McNulty is the Secretary of the Marine Corps Intelligence Association. GI Wilson is a retired Marine. Both are veterans of Iraq’s Al Anbar Province.
 

Sgt Nelson's Attorney Writes:

After considering all points of the law, and finding that Sergeants Nelson and Weemer were in contempt of court and are still in contempt of court, and taking into consideration their training, their commitment to each other and the fact they are brother Marines, and under belief they were never going to testify against each other, the Judge released these Marines and they are now free. Judge Larson’s fair ruling took into account the service that these Marines have given to their country. I thank the judge for his actions.”