War, Hell and Civilian Juries

It is extremely difficult for civilians to possibly understand the stress, and instant decision making demands, that are required in combat.  A jury of pure civilians, judging military actions in combat, would not be truly be a "jury of peers."
 - 
Captain Pete Hegseth, Iraq War Veteran and Executive Director,
Vets for Freedom


I've never been to war, and I'm much too old to go now.  In any case I don't think I would make a good soldier; I'm more the Private-Benjamin sort.  And I'm not at all happy about the fact that I could actually be called upon to serve on a jury in the prosecution of an American war veteran for alleged crimes committed in combat.

Until a few weeks ago, I wasn't even aware that our Congress had enacted legislation in 2000 to require civilian prosecution for criminal acts committed in war, under certain circumstances.  The Military Extraterritorial Jurisdiction Act popped up on my own citizen's radar when I learned of an Iraq war combat vet, Sgt. Jermaine Nelson, being held in San Diego on contempt of court charges for refusing to testify against his former squadron leader to a federal grand jury there. 

From all appearances, the public furor over a judge putting an Iraq combat vet in jail with rapists, murderers and thieves caused the judge last week to reconsider the wisdom of this.  The judge subsequently relented a bit and released Sgt. Nelson on the condition that he would at least appear before the grand jury and hear exactly what the jurors wish to ask him.  This appearance, according to Sgt. Nelson's attorney, is slated for June 16.

It's a complicated case and I've spent the last couple of weeks trying to make sense of it, because at first glance the whole civilian-trial angle, prosecuting acts committed in war by those in actual combat, seemed so preposterous to me that I honestly could not believe it was actually happening.

All roads lead to Fallujah.

Three marines adrift in a sea of civilian jurists in California, and all the roads that got them there lead back to the second battle of Fallujah in November of 2004.

I had to find Fallujah on my map of Iraq, pinned on the bulletin board over my desk, but I doubt that any soldier or marine who's been there would need a study guide to picture it.  The difference between my vision of Fallujah from it's tiny dot on a map of a country in a desert on the other side of the world, and a combat veteran's memory of a fierce, house-to-house battle there explains perfectly to me why I could not judge any of the actions taken there.

As an embedded CNN reporter quickly described the beginning of the battle of Fallujah:

...an almost constant barrage of explosions and machine gun fire and... tracer fire was lighting the night sky. Insurgents could be heard chanting in Arabic: "God is great."

By all accounts, the second battle of Fallujah, in November of 2004 has been the most bloody of the war to date, was fought house-to-house against an insurgent foe that had spent many months fortifying the city, setting up booby-trapped perimeters, building arsenals, drawing insurgent troops from far and wide, and had become an essential fortress for those waging civil war in the aftermath of Saddam's fall.  According to all military sources, Fallujah had to be secured at all cost if our objective of bringing peace to Iraq could possibly be achieved.

For days before the bloody battle ensued, the city was rained upon with leaflets warning all non-combatants to leave the city.  Help was even provided for those fleeing.  All civilized measures were taken to alert innocents that a fierce battle was about to take place.  And it had to be assumed, for military purposes, that all who remained were combatants.

Enter the Marines.  The battle was bloody and fierce, lasted more than a week, and according to the military, was the most vicious urban combat faced by American troops since the infamous battle of Hue City in Vietnam.

Out of the Fallujah battle, which America won decisively, have come two accusations of the unjustified murder of captives.  The first accusation was brought when a news reporter captured on film what he thought was one such act, but that was later found to be a proper self-defense killing.

The second case arose in 2006, when a former Marine took a polygraph examination as part of his application for a job with the Secret Service.  When asked if he had ever taken part in a wrongful death, the former Marine indicated that he had indeed.  While in the battle of Fallujah, he said, he and three other Marines had killed 4 unarmed combatant captives in the house where a large cache of weapons were found. 

That accusation has resulted in military charges brought against those Marines.  But since one of those has already been discharged, he is facing civilian charges on the basis of the MEJA act.

War, Hell and Conscience

It would be presumptuous and unfair of me to go into any more detail here about this specific case; I simply don't have enough facts.  But I have a definite sense that judging any soldier's actions in combat is a type of hallowed ground upon which I, as a civilian who's never been to war, would have grave reservations about, if asked to tread upon it.

My first thought when I read the federal statute, enacted in 2000 as the Military Extraterritorial Jurisdiction Act, was that it must have had some political motivation.  While I fully realize that if an American soldier, in a foreign land, even up to his eyeballs in the hell of war, committed some inexcusable, heinous act against a civilian, then of course we could not, as a people, excuse this or let it go unpunished.

But I have always assumed that this is one of the most sacred duties of our military, one of the things that sets our own apart from many other less honorable armies.  We have always had courts martial within every branch of our armed forces, war tribunals conducted by experienced war veterans of usually very high ranks.

So, this is something entirely new.  Asking civilians to make these judgments, never having been to war, seems to be pushing citizens be something most of us are not, and could not partake of in good conscience.

When I asked a high-ranking combat veteran for his opinion, he echoed my own.  I have decided to let Lt. Col. (ret) Steve Russell have the last say on this. 

I have sat on several courts martial.  Two involved cases of war crimes.  Under no circumstances do I believe that we should abdicate a military code of justice or military panels hearing military cases. In the cases of war crimes trials, senior officers, usually in the rank of three star general or higher, select the panels to hear them.  Nominations go through a similar vetting by the military judge and counsel, so that if their are concerns, then that panel member is exempted.  But at the end of it, you still have a jury of military members that have long years of service, have been under fire and are able to fairly look at the case.  That would be abandoned under a civil system.


We must also remember that special duties with regard to lethal force and carrying out orders required by the country in extreme environments speak volumes as to the need for a separate military justice system. We have had it for over 230 years and in some times of national duress that far exceed these.  We should leave it alone. It works.
 - 
Lt. Col. (ret) Steve Russell, Iraq war veteran and Chairman of Vets for Victory

What can be done?  Write our congressmen and tell them our thoughts on the matter, and our reluctance to take part in MEJA civilian trials.

And continue to pray every single day for God's protection for our men and women in harm's way, fighting the fight for liberty on the behalf of a less-than-grateful Nation.

Kyle-Anne Shiver is a frequent contributor to American Thinker.  She welcomes your comments at http://www.commonsenseregained.com/  
It is extremely difficult for civilians to possibly understand the stress, and instant decision making demands, that are required in combat.  A jury of pure civilians, judging military actions in combat, would not be truly be a "jury of peers."
 - 
Captain Pete Hegseth, Iraq War Veteran and Executive Director,
Vets for Freedom


I've never been to war, and I'm much too old to go now.  In any case I don't think I would make a good soldier; I'm more the Private-Benjamin sort.  And I'm not at all happy about the fact that I could actually be called upon to serve on a jury in the prosecution of an American war veteran for alleged crimes committed in combat.

Until a few weeks ago, I wasn't even aware that our Congress had enacted legislation in 2000 to require civilian prosecution for criminal acts committed in war, under certain circumstances.  The Military Extraterritorial Jurisdiction Act popped up on my own citizen's radar when I learned of an Iraq war combat vet, Sgt. Jermaine Nelson, being held in San Diego on contempt of court charges for refusing to testify against his former squadron leader to a federal grand jury there. 

From all appearances, the public furor over a judge putting an Iraq combat vet in jail with rapists, murderers and thieves caused the judge last week to reconsider the wisdom of this.  The judge subsequently relented a bit and released Sgt. Nelson on the condition that he would at least appear before the grand jury and hear exactly what the jurors wish to ask him.  This appearance, according to Sgt. Nelson's attorney, is slated for June 16.

It's a complicated case and I've spent the last couple of weeks trying to make sense of it, because at first glance the whole civilian-trial angle, prosecuting acts committed in war by those in actual combat, seemed so preposterous to me that I honestly could not believe it was actually happening.

All roads lead to Fallujah.

Three marines adrift in a sea of civilian jurists in California, and all the roads that got them there lead back to the second battle of Fallujah in November of 2004.

I had to find Fallujah on my map of Iraq, pinned on the bulletin board over my desk, but I doubt that any soldier or marine who's been there would need a study guide to picture it.  The difference between my vision of Fallujah from it's tiny dot on a map of a country in a desert on the other side of the world, and a combat veteran's memory of a fierce, house-to-house battle there explains perfectly to me why I could not judge any of the actions taken there.

As an embedded CNN reporter quickly described the beginning of the battle of Fallujah:

...an almost constant barrage of explosions and machine gun fire and... tracer fire was lighting the night sky. Insurgents could be heard chanting in Arabic: "God is great."

By all accounts, the second battle of Fallujah, in November of 2004 has been the most bloody of the war to date, was fought house-to-house against an insurgent foe that had spent many months fortifying the city, setting up booby-trapped perimeters, building arsenals, drawing insurgent troops from far and wide, and had become an essential fortress for those waging civil war in the aftermath of Saddam's fall.  According to all military sources, Fallujah had to be secured at all cost if our objective of bringing peace to Iraq could possibly be achieved.

For days before the bloody battle ensued, the city was rained upon with leaflets warning all non-combatants to leave the city.  Help was even provided for those fleeing.  All civilized measures were taken to alert innocents that a fierce battle was about to take place.  And it had to be assumed, for military purposes, that all who remained were combatants.

Enter the Marines.  The battle was bloody and fierce, lasted more than a week, and according to the military, was the most vicious urban combat faced by American troops since the infamous battle of Hue City in Vietnam.

Out of the Fallujah battle, which America won decisively, have come two accusations of the unjustified murder of captives.  The first accusation was brought when a news reporter captured on film what he thought was one such act, but that was later found to be a proper self-defense killing.

The second case arose in 2006, when a former Marine took a polygraph examination as part of his application for a job with the Secret Service.  When asked if he had ever taken part in a wrongful death, the former Marine indicated that he had indeed.  While in the battle of Fallujah, he said, he and three other Marines had killed 4 unarmed combatant captives in the house where a large cache of weapons were found. 

That accusation has resulted in military charges brought against those Marines.  But since one of those has already been discharged, he is facing civilian charges on the basis of the MEJA act.

War, Hell and Conscience

It would be presumptuous and unfair of me to go into any more detail here about this specific case; I simply don't have enough facts.  But I have a definite sense that judging any soldier's actions in combat is a type of hallowed ground upon which I, as a civilian who's never been to war, would have grave reservations about, if asked to tread upon it.

My first thought when I read the federal statute, enacted in 2000 as the Military Extraterritorial Jurisdiction Act, was that it must have had some political motivation.  While I fully realize that if an American soldier, in a foreign land, even up to his eyeballs in the hell of war, committed some inexcusable, heinous act against a civilian, then of course we could not, as a people, excuse this or let it go unpunished.

But I have always assumed that this is one of the most sacred duties of our military, one of the things that sets our own apart from many other less honorable armies.  We have always had courts martial within every branch of our armed forces, war tribunals conducted by experienced war veterans of usually very high ranks.

So, this is something entirely new.  Asking civilians to make these judgments, never having been to war, seems to be pushing citizens be something most of us are not, and could not partake of in good conscience.

When I asked a high-ranking combat veteran for his opinion, he echoed my own.  I have decided to let Lt. Col. (ret) Steve Russell have the last say on this. 

I have sat on several courts martial.  Two involved cases of war crimes.  Under no circumstances do I believe that we should abdicate a military code of justice or military panels hearing military cases. In the cases of war crimes trials, senior officers, usually in the rank of three star general or higher, select the panels to hear them.  Nominations go through a similar vetting by the military judge and counsel, so that if their are concerns, then that panel member is exempted.  But at the end of it, you still have a jury of military members that have long years of service, have been under fire and are able to fairly look at the case.  That would be abandoned under a civil system.


We must also remember that special duties with regard to lethal force and carrying out orders required by the country in extreme environments speak volumes as to the need for a separate military justice system. We have had it for over 230 years and in some times of national duress that far exceed these.  We should leave it alone. It works.
 - 
Lt. Col. (ret) Steve Russell, Iraq war veteran and Chairman of Vets for Victory

What can be done?  Write our congressmen and tell them our thoughts on the matter, and our reluctance to take part in MEJA civilian trials.

And continue to pray every single day for God's protection for our men and women in harm's way, fighting the fight for liberty on the behalf of a less-than-grateful Nation.

Kyle-Anne Shiver is a frequent contributor to American Thinker.  She welcomes your comments at http://www.commonsenseregained.com/