In a trial that was not widely publicized, a Marine was tried and acquitted in a federal court for killing civilians during an incident during the cleansing of Alqaeda and the Sunni militants from Falujah.

Why is this court case important?

Well, for two reasons.

One, it is double jeopardy.

Essentially the law was established so private contractors could be prosecuted by the Federal government, but the law can be read as “the prosecution of military dependents and former military service members accused of committing crimes outside the United States.”

The problem?

Nazaro was not a former military service member when the incident took place, he was a Marine, and could have been prosecuted under the military code of justice, but was not.

So the prosecution is essentially placing every soldier into a situation of double jeapardy, where a “crime” can be persecuted by a different court,years later.

Problem two: he will not be judged by “a jury of one’s peers” but by civilians, including those who never had served in a war and might not be aware of the split second life and death decisions faced by soldiers.

Example: You are a soldier. You have five “civilians” who just surrendered to you. One makes a move. Is he getting a gun? If you get near to stop him, he might grab your gun, or one of his buddies might pull a hidden weapon to kill you. What do you do?

Or maybe you are holding five “civilians”, and hear a noise outside. Perhaps it is some of their friends coming to rescue them. The men move at the noise when you are distracted, so you have to decide in one second to shoot them, or to have them and their friends outside overcome and kill you, and maybe the rest of your unit nearby. Of course, maybe the noise is a dog, or falling plaster, but you didn’t know that at the time…

Or maybe you are “clearing” a civilian area, from which most civilians fled (as did most of the civilians in Fallujah). You hear a gun cocked in a room. Do you enter the room and say: “FREEZE”? Of course not. You enter and shoot…and find the “civilian” with or without a weapon but with his wife and children hiding behind him on a bed…all dead in the crossfire.

Or you are at a checkpoint, and a car comes at you at fifty miles an hour. It doesn’t stop. Is it a suicide bomber with a car full of explosives to kill you and all those with you? You use a flashlight, and then shoot the engine, killing the driver, who turns out to an Italian intelligence agent who just picked up a communist reporter just “ransomed” by paying insurgents lots of money so they can pay kids to plant more IED’s.

The reporter, famous for her anti American rhetoric, makes a fuss insisting the soldiers were trying to kill her, and insists the soldiers be tried for war crimes, never mind that the soldiers didn’t even know who was driving the car, they only saw it as a threat to their own lives.

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Making soldiers and Marines vulnerable to civilian prosecution sends a message to hesitate. This is the difference between combat soldiers and peacekeepers.

But just like doctors who have quit medicine or started to practice “defensive medicine” rather than good medicine when faced with trivial lawsuits, allowing this type of prosecution can demoralize and decrease the ability of good soldiers to do their job.

The law needs to be changed, to protect our military.

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Nancy Reyes is a retired physician living in the Philippines.She writes about human rights abuse in Africa at Makaipa blog.

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