The officer considering whether a Marine sergeant accused of shooting an unarmed Iraqi captive should face court-martial said Friday it will be a struggle to determine whether the killing amounted to murder amid the kinetic environment of war.
Sgt. Ryan Weemer is one of three current and former Marines accused of breaking rules of engagement and killing four men they had captured after a platoon commander radioed to ask whether the Iraqis were dead yet.
The killings allegedly happened in November 2004 during the invasion of Fallujah, one of the fiercest ground battles of the Iraq war.
The case came to light in 2006, when Weemer volunteered details to a U.S. Secret Service job interviewer during a polygraph screening that included a question about the most serious crime he had ever committed.
In a tape recording of the interview played in court this week, Weemer recounted arguing with his squadmates about what to do with the detainees — all military-age males captured in a house where weapons were also found. The squad was under pressure from the platoon to get moving.
Weemer, of Hindsboro, Ill., is charged with one count of murder and six counts of dereliction of duty encompassing failure to follow the rules of engagement in Fallujah and failing to follow standard operating procedures for apprehending or treating detainees or civilian prisoners of war.
He only spoke to answer procedural questions during two days of hearings before Maj. Glen Hines, who will recommend either trial or dismissal to a commanding general.
Prosecutors argued that Weemer, a burly 25-year-old honored with a Purple Heart, should be tried for unpremeditated murder because he knew the rules of engagement forbade harming anyone in his custody.
A military lawyer called by prosecutors testified that Weemer had been instructed before the invasion to transfer anyone taken into custody from the front lines to holding facilities at a base.
Don't execute detainees, take prisoners, said Capt. Nicholas Gannon, summarizing instructions given to Marines in countless training sessions. But at the decision point he elected to unlawfully kill a person in his control. ... This is not a gray area, it's black and white.
That's my struggle, Hines responded, but this kinetic environment, I need the defense to point me to specific evidence that justifies dropping the murder charge.
Weemer's attorney, Paul Hackett, said the detainees were almost certainly insurgents. He seized on a statement from another Marine who claimed Weemer told him seconds after the shooting that he fired because the Iraqi, who was not handcuffed, lunged for his 9 mm pistol.
He did not fail in his duty to defend himself, Hackett said. Weemer acted as we want Marines to do.
Hackett said Weemer successfully subdued the men, but his squad leader, Jose Nazario Jr., escalated the situation inside the house by beating one detainee with the butt of a rifle after the weapons cache was found.
Nazario, 27, of Riverside, Calif., has been charged with two counts of voluntary manslaughter in the killing of two captives. The former sergeant is scheduled to be tried in August in federal court because he has already completed his military service.
Another Marine, Sgt. Jermaine Nelson, 26, of New York, is slated to be court-martialed in December on charges of unpremeditated murder and dereliction of duty. Nelson told investigators that Nazario grew irate after finding weapons despite the detainees' protestations that the house was weapons-free.
Last month, Nelson and Weemer were jailed for refusing to testify against Nazario before a federal grand jury believed to be investigating the case. Both were released July 3 and returned to Camp Pendleton.
