Yesterday, a federal jury began deliberating the conviction of a former Marine of manslaughter in Iraq, marking a historical moment and potentially dangerous precedent in which civilians will evaluate whether military actions were justified or amounted to criminal behavior.
Prosecutors allege Jose Luis Nazario Jr., 28, killed or instructed others to kill four
unarmed Iraqi detainees in Fallujah during "Operation Phantom Fury," a battle considered one of the worst to date in the Iraq War. To the charges of voluntary manslaughter, assault with a deadly weapon, and discharging a firearm during a crime of violence - which collectively carry a penalty of up to ten years in prison - Nazario has pled not guilty.
Nazario is the first former military service member brought to trial under the Military
Extraterritorial Expedition Act, written to allow
prosecution of civilian contractors, military dependents and former military service members accused of committing crimes outside the United States. Previously, actions related to combat or military situations were tried in military court.
The prosecutor for the case claims the evidence showed the detainees "had given up and surrendered" before the shooting, although only one witness, whose testimony was deemed inadmissible on account it was taken during a U.S. Secret Service job interview, supports that argument.
The defense took a high road approach, arguing not only a lack of evidence to convict, but also that a conviction would have a ripple effect throughout the services, making military members more reluctant to carry out their order for fear of being convicted in a trial when their service ends.
While that assertion may or may not be true, what is clear is that a civilian does not have the capability to fully understand a person's mental state during a combat situation. Moreover, most legal standards are based upon what a reasonable person within a particular profession and situation would do based upon standard protocol. How could a civilian be tasked with understanding, in detail, proper military protocol, the mental state of a service member in the midst of war, or how military training played a role in the situation?
The fact of the matter is a civilian jury is not equipped with the intimate understanding of military rules of engagement, culture, training, or a mid-battlefield mindset to make judgments about the actions of military members in exceptional situations, such as a major military engagement. After all, what standard could a civilian juror use to judge a "justifiable" versus "non-justifiable" homicide if in civilian court, all homicides, justifiable or not, are crimes?
To use a civilian jury is to also egregiously stretch the definition of a "jury of one's peers," as a peer is defined as a "a person of equal rank, age, or social status." Despite being a civilian today, at the time of the alleged crime, Nazario was a military officer not of the same rank or social status as the civilian jury who holds his fate in their hands.
If the practice of trying military members in civilian courts for actions committed in the midst of wars - which are by nature bloody, gruesome, and psychologically damaging - continues, we would be letting our litigious culture contaminate our last line of defense against legal and political failures with the same problems that make doctors over-order tests, insurance costs outrageous, parents afraid to host their child's guests, and the civilian government workforce implement change at a snail's pace. Are these really the examples we want our military to follow?
Also Interesting: