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 Press.
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 civilian casualties.
"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 Winter 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?"
"Kill him.""You see an individual with a pair of binoculars, what do you do?"
"Kill him.""You see an individual with a cell phone out, what do you do?"
"Kill him.""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 of Staff.
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 enlisted personnel.
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 the terrorists."
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.