As a journalist who has reported extensively on
the death and destruction that is U.S.- occupied Iraq, perhaps I should be happy
about the prosecution
of former Marine Corps Sergeant Jose Luis Nazario Jr. Standing accused of killing
unarmed four detainees in Fallujah in 2004, Nazario is the first Iraq War veteran
to be tried for war crimes in a civilian court. His trial, which began in Southern
California this week, marks a new chapter in American jurisprudence –
with the long arm of the law reaching past the jurisdiction of a military court
martial. If convicted of all charges, Nazario could face more than 10 years
in prison, according to the Associated
The problem is that Nazario's prosecution hardly represents justice.
Consider for a moment the context of the November 2004 U.S. attack on Fallujah,
during which Nazario allegedly killed the detainees. That attack, code-named
Operation Phantom Fury, was one of the fiercest of the entire U.S. occupation.
Independent human rights groups estimate it left 4,000 Iraqi civilians dead.
"Fallujah was declared a 'free-fire zone' in November 2004 and we
told the civilian population that they had to leave because the entire city
was going to be deemed hostile territory," explains Zollie Goodman, a former
U.S. Navy petty officer who served in Fallujah and doesn't know Nazario. "Some
of them left. They carried TVs or food and sat outside the city and waited for
the firefight to be over so they could go home."
But, Goodman said, "some of them didn't leave," leading to many innocent
"We would just leave the dead Iraqis in the streets and they piled up,"
Goodman said. "It was disgusting. We ended up sighting in our weapons on
these dead bodies. We'd been trained to keep our weapons 'on point.' You always
want your weapon to be sighted in. So when we didn't have a target to shoot
we sighted our weapons on dead people and dead animals. That happened a lot
at the tail end of Operation Phantom Fury."
Goodman was one of dozens of veterans who testified
this spring at Iraq Veterans Against the War's
Soldier gathering in Washington, D.C. One by one, the former soldiers spoke
of atrocities they personally committed or witnessed while deployed. Their goal
was to show that high-profile atrocities like the torture of prisoners inside
Abu Ghraib and the massacre of 24 innocent civilians at Haditha weren't isolated
incidents perpetrated by a "few bad apples" but part of a pattern
of increasingly bloody occupations. They also demonstrated, by relating their
firsthand experiences, how the military occupation of a foreign country inevitably
leads to an increase in racism, dehumanization, and sexism directed both outward
at the enemy and inward into the soul of the service member.
In Fallujah, "leveling houses before we even went in became pretty commonplace,
using bulldozers and tanks to do the job for us, and walking through the rubble,"
former Marine Corps Corporal Michael LeDuc testified
at Winter Soldier.
Like Goodman, LeDuc served in Operation Phantom Fury and didn't know Sergeant
Nazario. He told the crowd at Winter Soldier how a Judge
Advocate General (JAG) officer – his battalion's final authority on
the Uniform Code of Military Justice (UCMJ) – "pulled us all together,
made sure the embedded reporters weren't there, and gave us our 'rules
of engagement' brief for Fallujah."
LeDuc said the JAG Officer told his battalion that junior non-commissioned
officers (Sergeants like Jose Luis Nazario Jr.) would be allowed to decide which
Iraqis were exhibiting "hostile intent" and as such could decide who
should be targeted.
The battalion JAG officer wrapped up by sort of going, "Okay, Marines,
you see an individual with a weapon, what do you do?"
We mutter in silence for a minute, waiting for somebody else to answer,
and one guy said, "Shoot him?"
"No. Shooting at a target, putting rounds down range and suppressing
a target, is one thing. Sighting and killing a target is another. So again,
you see an individual with a weapon, what do you do?"
"You see an individual with a pair of binoculars, what do you do?"
"You see an individual with a cell phone out, what do you do?"
"You see an individual, who although may not be actually carrying
anything or displaying any specific hostile action or intent running from,
say, one building to another, running across the street or even running away
from you, assume that he is maneuvering against you and kill him. You see
an individual with a white flag and he does anything but approach you slowly
and obey commands, assume it's a trick and kill him."
War Crime Scene
These were the rules soldiers and Marines followed
when they attacked Fallujah in November 2004. The entire operation was a war
crime, a collective punishment of the often-elderly civilians who stayed inside
the city and did not evacuate as America ordered. It was a collective punishment
delivered to a city, which had refused to accept an American military occupation,
which harbored fighters who regularly attacked those soldiers. It was an operation
supported by President George W. Bush, John Kerry (the Democratic presidential
nominee in the 2004 election), military leaders like General John Abizaid, and
General George W. Casey.
Rather than being prosecuted, or even reprimanded, these military leaders have
been promoted and honored since the siege of Fallujah. Abizaid, at the time
the commander of all U.S. forces in the Middle East, has since left the military
and is now a senior
advisor at Stanford University's Center for International Security and Cooperation.
General Casey, the commander of U.S. forces in Iraq at the time of the siege,
is now the U.S. Army's Chief
In many ways, the civilian prosecution of Sergeant Jose Luis Nazario Jr. is
reminiscent of the government's response to the April 2004 Abu Ghraib prison
scandal. Numerous low-level enlisted soldiers were tried and convicted for abusing
detainees. No high-ranking officers were ever put behind bars.
Because of the scandal surrounding the disturbing photographs, a handful of
officials were reprimanded, but nothing more. Colonel Thomas Pappas, who commanded
military intelligence brigade at Abu Ghraib, was fined. Brig. General Janis
Karpinsky, who commanded military police at Abu Ghraib, was downgraded to colonel.
The commander of all U.S. forces in Iraq at the time, Lt. General Ricardo Sanchez,
was forced to retire.
With Fallujah, however, there were no damning photographs broadcast on television
screens across the country. There were no congressional hearings. So the Pentagon,
and now the Justice Department, have focused exclusively on prosecuting low-ranking
Who Gave the Orders?
What we need instead is a thorough investigation
of "who gave the orders" in Fallujah. Who relaxed the "rules
of engagement" to such an extent that many soldiers and Marines on the
ground believed anything and everything was permitted? Who made the decision
that all civilians who stayed behind after the evacuation order would be treated
as the enemy?
Such an honest inquiry is likely to lead all the way to the White House. The
November 2004 operation was highly political – occurring immediately after
Bush's narrow re-election victory over Kerry. During the campaign, Kerry had
repeatedly criticized hammered the Bush administration for being too soft on
Fallujah during an earlier April siege.
"What I want to do is change the dynamics on the ground," Kerry said
during the first presidential debate. "And you have to do that by beginning
not to back off the Fallujahs and other places, and send the wrong message to
Kerry was referring to the first siege of Fallujah in April 2004. It occurred
after the killings of the four Blackwater security contractors, whose burned
bodies were hung over a bridge over the Euphrates River. It left so many dead
that the municipal soccer stadium had to be turned into a makeshift graveyard.
I visited the soccer stadium shortly after that fighting and saw most of the
hundreds buried there were civilians – mostly children and the elderly
– who were unable to get out of the way of the U.S. bombardment. While
the media in this country largely ignored those casualties, images of Fallujah
were also captured by al-Jazeera and other Arab television networks. These images
inflamed public sentiment. Toward the end of April 2004, the Bush administration
grudgingly and sensibly ordered a temporary retreat.
But in November 2004, after Bush defeated Kerry, Operation Phantom Fury began.
Speaking at the White House two weeks after his victory alongside Tony Blair,
then the British Prime Minister, Bush praised the U.S. soldiers and Marines
for making "substantial progress" in Fallujah, ridding the city of
"Saddam holdouts and foreign terrorists."
So, who bears responsibility for Sergeant Jose Luis Nazario's killing of four
unarmed detainees? The truth is that the responsibility is collective. It lies
with bloodthirsty politicians from both parties who put the nation's fighting
men and women into what psychiatrist Robert Jay Lifton calls
an "atrocity-producing situation," and with the generals who designed
the battle plans. Until these high-ranking officials are put on trial, it's
wrong to put Jose Nazario in the dock.
Reprinted with permission from Foreign Policy