LAW REVIEW 1135
Military Extraterritorial Jurisdiction
By Captain Samuel F. Wright, JAGC, USN
10.2—Other Supreme Court Cases
12.0—Military Criminal Justice
Jose Luis Nazario, Jr.
enlisted in the Marine Corps in September 1997 and was honorably discharged in
October 2005. Like everyone joining the
armed forces since the early 1980s, he had an eight-year obligation. Because he spent the whole time on active
duty, he had no remaining reserve obligation after he left active duty. Unlike most young men and women leaving
active duty, he was not a member of the Individual Ready Reserve (IRR) after he
left active duty.
After his honorable
discharge, he joined the Police Department of the City of Riverside, California
as a rookie police officer in April 2006.
The Naval Criminal Investigative Service (NCIS) investigated allegations
that Nazario and a squad that he led had unlawfully killed two detainees in
Fallujah, Iraq on November 9, 2004.
Congress enacted the Uniform
Code of Military Justice (UCMJ) in 1950, replacing different laws that applied
to the Army (including the Air Force as part of the Army until 1947) and to the
Navy and Marine Corps and to the Coast Guard.
As enacted in 1950, Article 3(a) of the UCMJ permitted trial by court
martial of discharged veterans, for offenses allegedly committed while on
active duty. In a case involving a
former Air Force airman who had been honorably discharged five months before
his arrest for alleged crimes committed in Korea on active duty, the Supreme
Court held that Article 3(a) of the UCMJ was unconstitutional and that a
discharged veteran cannot constitutionally be subjected to trial by court
martial. Toth v. Quarles, 350 U.S. 11 (1955).
Reservists not on active duty
(including IRR members) can be and sometimes are recalled to active duty for
court martial for serious offenses allegedly committed while on active
duty. 10 U.S.C. 802(d). But Nazario was not a reservist and could not
be recalled to active duty. But for the
2000 enactment of the Military Extraterritorial Jurisdiction Act (MEJA), there
would have been no way to hold Nazario criminally accountable for the crimes he
allegedly committed while on active duty in Iraq in 2004.
MEJA provides: “Whoever engages in conduct outside the
United States that would constitute an offense punishable by imprisonment for
more than 1 year if the conduct had been engaged in within the special maritime
and territorial jurisdiction of the United States—(1) while employed by or
accompanying the Armed Forces outside the United States; or (2) while a member
of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military
Justice), shall be punished as provided for that offense.” 18 U.S.C. 3261(a).
In accordance with MEJA, the
United States Attorney for the Central District of California obtained a grand
jury indictment against Nazario and then tried him for manslaughter in that
court. The jury found him not guilty of
the charges. United States v. Jose L. Nazario, Jr., Case No. EDCR
MEJA is most useful not only in prosecuting honorably discharged veterans like
Nazario but also military spouses and family members, Department of Defense and
Department of State civilian employees and contractors, and other U.S. citizens
who commit serious crimes while accompanying United States military forces
outside our country.
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