Dispute over cross casts light on four fallen Marines

Reporting from San Diego —  In the early days of the U.S. battle with the Sunni insurgency in Iraq, the four Marines from Camp Pendleton were among those troops on the front lines in Anbar province.

The two enlisted Marines would not survive those violent days in the spring of 2004: one was killed by “friendly fire” when a mortar round went awry and one was mortally wounded while hurling a grenade to repel an enemy assault, bravery for which he was posthumously awarded the Silver Star.

The two officers survived, only later to be killed in other battles in other parts of the country: one by gunfire while leading a raid in Baghdad to kill or capture a “high-value” target in 2007 and one by stepping on a buried bomb while scouting an attack position near the Syrian border in 2005.

Video: Camp Pendleton Marines honor fallen comrades by raising cross

Now the four — Lance Cpls. Robert Zurheide and Aaron Austin, and Majs. Douglas Zembiec and Ray Mendoza — are the focal point of a legal dispute about how best to honor their service and sacrifice, and that of other U.S. military personnel killed in Iraq and Afghanistan.

On Veterans Day, a retired Navy chaplain — who served with Zurheide, Austin, Zembiec and Mendoza with the 2nd Battalion, 1st Marine Regiment — led a small group of Marines and family members up a steep, rugged hill at Camp Pendleton to plant a 13-foot tall cross in their memory. No one informed the chain of command or asked for permission.

Zurheide, Zembiec and Mendoza had been among those Marines who planted a cross in the same spot in 2003 before the battalion deployed to Iraq.

In the years after the deaths, Marine “grunts” adopted the hill as a place to leave messages in remembrance of those killed in action, including coins, medals, dog tags, and bits of sand and dirt brought back from distant battlefields.

The cross was destroyed by a brush fire in 2007. A replacement was raised in 2008, without news coverage. When a second cross was erected on Veterans Day, a story in The Times told of the cross and its meaning to Marines.

Within days, two groups petitioned the Marine Corps to take down the crosses as a violation of the constitutional separation of church and state. Two other groups took the opposite stance.

Rep. Duncan Hunter (R-Alpine), who served with the battalion in Fallouja, urged the Marines to leave the cross alone. The American Civil Liberties Union, although not directly involved in the dispute, said it hopes the Marines will “follow the law.”

“The legal test is whether from the perspective of a reasonable observer this would be perceived as government endorsement of religion,” said Erwin Chemerinsky, founding dean of the law school at UC Irvine and a constitutional scholar.

The cross, Chemerinsky noted, is an inherently Christian symbol. But an argument could be made that because the cross is not visible to the public and that the only people who see it are Marines, it does not serve a religious purpose but rather a reminder to Marines of those who have fallen in combat, he said.

“My own sense is that a cross by itself on a military base violates” the Constitution, Chemerinsky said. “But whether a court will see it that way is uncertain.”

The colonel in charge of Camp Pendleton has sent an undisclosed recommendation about the cross to Marine Corps headquarters, where the issue is being studied by lawyers and generals. A decision is expected within weeks.

Photos: Marines’ cross honors fallen comrades

So who were these four Marines and why, years after their deaths, do Marines feel it important that they be remembered?

Austin, 21, had joined the Marine Corps after graduating from high school in rural Texas. He loved parties and football but quit the team in solidarity when his cousin had a run-in with the coach.

Two days before he was killed in a firefight, Austin told The Times: “There’s no place I’d rather be than here with my Marines. I’ll always remember this time.”

When Marines from the battalion were attacked from three sides, Austin helped rescue the wounded and led the Marines to place a heavy machine gun on a rooftop.

Wounded several times by AK-47 fire, he refused to be evacuated and instead moved into the open to throw a grenade as the enemy surged within 20 meters.

“Of all the Marines in Two-One, it’s Austin who brings tears to my eyes when I think of him,” said Lt. Col. Brandon McGowan, who was the executive officer. “He wasn’t even a squad leader but his incredible bravery in getting that machine gun up there and rallying the other troops, I’m sure saved the entire platoon.”

Zembiec, a company commander, received the Bronze Star for bravery during the same fight in Fallouja. At one point he jumped on top of a tank, braving enemy fire to direct his Marines.

After Fallouja, the Naval Academy graduate deployed to Afghanistan and, after a restive tour at the Pentagon, returned to Iraq. He was 34 when he was killed.

“He radiated that fearlessness; that ‘I can accomplish anything, anytime, you don’t have to ask twice,’ ” said Master Sgt. Kenneth Cadena, who served with Zembiec in Kosovo. “That hill represents more than a cross, it represents the guts to accomplish something, like Zembiec did.”

Then-Defense Secretary Robert Gates, normally a stoic presence, was near tears when he remembered Zembiec during a speech as “an unabashed and unashamed warrior.”

Zurheide, 20, of Tucson, had served in the 2003 assault on Baghdad. When he redeployed in 2004, he had a premonition that he would not survive, although he never shared that fear with other Marines.

As insurgents sought one night to encircle the Marine position, Zurheide was killed by a Marine mortar that had been “dialed-in” to the wrong position.

After his death, other Marines “fought even harder and with the heavy heart of the memory of Zurheide in our thoughts,” said Sgt. Major William Skiles, who was a company first sergeant with the battalion. “He had carried pride and honor with him as he went into battle.”

Two weeks after his death, his widow, Elena, gave birth to their only child, Robbie Jr. Elena Zurheide and Mendoza’s widow, Karen, were among the group that pulled the cross up the hill on Veterans Day.

Mendoza, 37, had just taken over command of a battalion rifle company when he was killed. He was leading his Marines in looking for a spot to attack the enemy near Al Qaim when he stepped on a buried bomb.

At 6-foot-2 and 220 pounds, Mendoza had been a champion wrestler at Ohio State. In his last conversation with his wife from Iraq, he asked her to visit the injured Marines in the hospital at Camp Pendleton.

“He was a big, tough guy who was not going to let anything happen to anyone if he had anything to do about it,” said Lt. Col. Joseph Clearfield, who was operations officer for the battalion in Fallouja. “The world was a better place with him in it.”

After Mendoza’s funeral in Oceanside, Marines at Camp Pendleton organized a three-mile “motivational hump” in his honor up a steep, rugged hill with a cross at the top.

tony.perry@latimes.com