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MARGARET WARNER: Good evening. I'm Margaret Warner. Jim Lehrer is off the program this week on a book and public television station tour. On the NewsHour tonight, our summary of the news; then a multi-part look at the situation in Iraq, including President Bush's assessment today; a report from Baghdad on the Shiite insurgency there; a debate about whether the war is winnable; and a look at how Americans accused of abusing Iraqi prisoners will be tried.
MARGARET WARNER: The U.S. Military moved today to begin prosecuting soldiers accused of abusing Iraqi prisoners. Officials in Baghdad announced specialist Jeremy Sivits will face a public court-martial there, beginning May 19. Print reporters may cover it, but it will not be televised. Six other soldiers also face charges. Over the weekend, the "New Yorker" Magazine published another image of prison abuse. It showed a naked Iraqi detainee being threatened by U.S. Military guards with dogs. In Washington, President Bush saw some unreleased photographs during a visit to the Pentagon. Later, Spokesman Scott McClellan was asked about making all of the photos and videos public.
SCOTT McCLELLAN: The Pentagon recognizes the importance of congressional oversight, so they're continuing to talk with members of Congress so that they will be able to take a look at some of these appalling images. In terms of releasing them publicly, the Pentagon asked to take into account other considerations, they have to take into account privacy concerns and they have to take into account concerns related to ongoing criminal investigations.
MARGARET WARNER: The Pentagon has agreed to send more photographs and at least one videotape to the Senate Armed Services Committee. Tomorrow that panel will hear from Army Major General Antonio Taguba. He wrote the army's internal report in March that cited "systematic" abuses of Iraqi prisoners. In his visit to the Pentagon today, the president roundly praised Defense Secretary Rumsfeld in the face of calls for his resignation. He spoke as the secretary looked on.
PRESIDENT GEORGE W. BUSH: You are courageously leading our nation in the war against terror. You're doing a superb job. You are a strong secretary of defense. And our nation owes you a debt of gratitude.
MARGARET WARNER: Over the weekend, Vice President Cheney called Rumsfeld the "best secretary of defense the United States has ever had." But today, Senator Joseph Biden of Delaware joined other democrats in saying Rumsfeld should resign. And the "Army Times," an independent newspaper, said responsibility for the prisoner abuse "extends all the way up the chain of command." The editorial said "Accountability here is essential, even if that means relieving top leaders from duty in a time of war." The Red Cross began warning about mistreatment of Iraqis even before the war's major combat phase ended. The "Wall Street Journal" reported that today, in laying out details of a confidential Red Cross document given to the U.S. Military last February. It said Red Cross officials witnessed inmates kept naked in total darkness. The visitors were told by a military intelligence officer that the conditions were "part of the process." The Red Cross document also reported widespread acts that it said were "tantamount to torture." The Red Cross report also describes abuse by British troops. In parliament today, Defense Secretary Geoff Hoon apologized for the mistreatment of Iraqi prisoners. Earlier, Prime Minister Blair defended the overall record in Iraq.
TONY BLAIR: We didn't commit British troops to Iraq in order to carry out abuses of human rights, but to end abuses of human rights. All I ask people to do, however, is to remember that the majority of British troops in places like Basra will be as disgusted as anyone else by these allegations that have been made and will want to investigate it properly.
MARGARET WARNER: Blair acknowledged he and other senior ministers did not hear about the specific allegations in the Red Cross report until a few days ago. In Iraq today, two U.S. soldiers were killed in separate attacks in Mosul and Baghdad. And U.S. forces destroyed the Baghdad headquarters of radical Shiite leader Muqtada al-Sadr. They also killed at least 35 of al-Sadr's gunmen over the weekend. In Fallujah, U.S. Marines entered the city today with members of a newly established Iraqi force at their side. It was the first such foray since the marine siege ended late last month. Iraq's oil exports were cut back today by 25 percent after insurgents bombed a key southern pipeline this weekend near Basra. The blast damaged an 18-foot section of the pipeline, and it was still burning today. Last month, suicide bombers in boats attacked pumping stations in the region. The president of Chechnya, Akhmad Kadyrov, was buried today. He was assassinated yesterday in a bomb attack during a World War II victory commemoration. Six other people were also killed, and fifty-seven wounded. There was no immediate claim of responsibility, but Russian and Chechen officials blamed rebels who want independence from Russia. The U.S. Justice Department announced today it's reopening its investigation into the murder of Emmett Till nearly 50 years ago. The black teenager was abducted and killed in Mississippi in 1955. Two white men were acquitted by an all-white jury in the case. They have since died. A recent documentary on PBS suggested other suspects may still be alive. In Washington today, Justice officials said Till's murder helped spur the civil rights movement.
ALEXANDER ACOSTA: Although it's too late to save Emmitt, the slaying helped galvanize opposition, the brutality of segregation and Jim Crow. In fact it was just 100 days later that Rosa Parks famously refused to move to the back of the bus.
MARGARET WARNER: The statute of limitations on federal charges in the case has expired, but the state could still bring charges. Comedian Alan King died of lung cancer at a Manhattan hospital yesterday. King was hugely popular in the late 1950s and the 1960s. He appeared on the "Ed Sullivan Show" dozens of times, and had supporting roles in more than 20 movies. Alan King was 76 years old. In economic news, Citigroup agreed today to pay $2.65 billion to settle lawsuits by WorldCom investors. The telecommunications giant declared the largest bankruptcy in history two years ago. And Citigroup had been a key backer of WorldCom securities. On Wall Street today, stocks fell sharply on growing fears that higher interest rates may be coming soon. The Dow Jones Industrial Average lost more than 127 points to close at 9990. It was the first time the Dow finished below 10,000 since last December. The NASDAQ fell almost 22 points to close at 1896. That's it for the News Summary tonight. Now it's on to assessing the Iraq situation; a report from Baghdad; is this war winnable; and punishing the abusers.
MARGARET WARNER: Now, to the Iraq story, from the military struggle on the ground to the prisoner abuse scandal. President Bush addressed both at the Pentagon this morning.
PRESIDENT GEORGE W. BUSH: We have made clear commitments before the world, and America will keep those commitments. First, we will take every necessary measure to assure the safety of American and coalition personnel, and the security of Iraqi citizens. We're on the offensive against the killers and terrorists in that country, and we will stay on the offensive. In and around Fallujah, U.S. Marines are maintaining pressure on Saddam loyalists and foreign fighters and other militants. We're keeping that pressure on to ensure that Fallujah ceases to be an enemy sanctuary. In northern sectors of the city, elements of the first marine expeditionary force are prepared to strike at terrorist fighters and prevent a resurgence of violence and chaos. South of the city, the marines are disrupting enemy attacks on our supply routes and routing out anti-coalition fighters. In towns of Ramadi and Husaybah and Kharma, marines are on the offensive, conducting hundreds of patrols and raids every day. The enemy in Fallujah is hiding behind an innocent civilian population, and calculating that our coalition's use of force will alienate ordinary Iraqis. Yet every day our troops are responding with precision and discipline and restraint. In Najaf, a major Shia population center and a holy site, our military is systematically dismantling an illegal militia that has attempted to incite violence and seize control. Soldiers from the Second Light Cavalry Regiment are conducting reconnaissance to learn the precise strength and location of enemy forces. The First Armored Division is steadily defeating these enemy forces while seeking to protect the people and holy sites of that city. Elements of this militia have been ejected from the Najaf governor's office, and a legitimate governor has been appointed. The people of Najaf and Shia leaders oppose the occupation by this illegal militia, and are putting pressure on the militia to withdraw. We're encouraged to see more Iraqis take responsibility for resolving the standoff in Najaf. In all these ongoing operations, our troops continue to face serious danger, and this government is giving them every means of protecting themselves and every means necessary to gain victory. We're fielding the most technologically advanced military forces ever assembled, forces that are agile and flexible, able to strike in darkness and in light. Our second great commitment in Iraq is to transfer sovereignty to an Iraqi government as quickly as possible. Decades of oppression destroyed every free institution in Iraq, but not the desire to live in freedom. Like any proud country, the Iraqi people want their independence. The Iraqi people need to know that our coalition is fully committed to their independence, and we're fully committed to their national dignity. This is the reason the June 30 transfer of sovereignty is vital. A key strategic goal of our coalition is to help build a new Iraqi army and civil defense corps and police force and facilities protection service, and a border guard capable of defending and securing the country. Major General Dave Petraeus, who commanded the 101st Airborne in Iraq, has returned to oversee the training and equipping of these all-Iraqi forces. Once constituted, they will protect a free Iraq from external aggression and internal subversion. Yet the vital mission of our military in helping to provide security will continue on July 1 and beyond. Third, because America is committed to the equality and dignity of all people, there will be a full accounting for the cruel and disgraceful abuse of Iraqi detainees. The conduct that has come to light is an insult to the Iraqi people and an affront to the most basic standards of morality and decency. One basic difference between democracies and dictatorships is that free countries confront such abuses openly and directly. In January, shortly after reports of abuse became known to our military, an investigation was launched. Today, several formal investigations led by senior military officials are under way. Secretary Rumsfeld has appointed several former senior officials to review the investigations of these abuses. Some soldiers have already been charged, and those involved will answer for their conduct in an orderly and transparent process. We will honor rule of law. All prison operations in Iraq will be thoroughly reviewed to make certain that such offenses are not repeated. Those responsible for these abuses have caused harm that goes well beyond the walls of a prison. It has given some an excuse to question our cause and to cast doubt on our motives. Yet who can doubt that Iraq is better for being free from one of the most bloodiest tyrants the world has ever known? Millions of Iraqis are grateful for the chance they have been given to live in freedom, a chance made possible by the courage and sacrifice of the United States military. We have great respect for the people of Iraq and for all Arab peoples, respect for their culture and for the history and for the contribution they can make to the world. I understand the difficulty of the mission of our men and women in uniform. They're facing an enemy in sand and heat and blasting winds, often unable to tell friend from foe. I know how painful it is to see a small number dishonor the honorable cause in which so many are sacrificing. What took place in the Iraqi prison does not reflect the character of the more than 200,000 military personnel who have served in Iraq since the beginning of operation Iraqi freedom. I want our men and women in uniform to know that America is proud of you, and that I am honored to be your commander-in- chief. Thank you.
MARGARET WARNER: For more on the situation on the ground in Iraq, we turn to Terence Smith. He spoke a short time ago with "Washington Post" reporter Scott Wilson in Baghdad.
TERENCE SMITH: Scott Wilson, welcome to the broadcast. Can you tell us the latest on this continuing insurgency between the Shiite militia and the U.S. Forces?
SCOTT WILSON: Early this morning, almost 24 hours ago really, there was significant fighting in Sadr City, which is a Shiite slum in eastern Baghdad. This is the latest in the fighting between Shiites and U.S. Forces across southern Iraq in Karbala and Najaf, two holy cities to the Shiite community which is a majority here, and in the last two days it's spread to Sadr City. Essentially what's happening is that there is a rebellious young cleric, Muqtada Sadr. The slum here is named for his father, who is a respected ayatollah assassinated by Saddam Hussein. The fighting is hard to get a handle on. Mostly what the U.S. Forces are doing is they are being extremely careful in Karbala and Najaf. They are holy shrines in both places the United States does not want to damage. It would be extremely damaging politically to them if they did, or were blamed for damage to these mosques. And at the same time in Sadr City, which is about a third the population of Baghdad, a very big place, a very complicated place to fight-- small alleys, low buildings, lots of refuge for ambushes. And so what they're doing is going in very gingerly, probing, rumbling through with tanks, and trying to get a hold on what is really kind of an insurrection among the Shiite community in many of these difficult places for U.S. forces to fight.
TERENCE SMITH: And what set off the battle that took place early this morning? What provoked that?
SCOTT WILSON: This has been something that some people have seen coming really. The three major Shiite population centers are not just Karbala, and those were the first two where the fighting began between Sadr's militia known as the Mahdi army and U.S. forces, and so it was not unexpected. U.S. troops had tried best they could to surround Sadr City in recent days, really to keep Sadr's militants from here traveling south to help out insurgents there. So the bombing that took place last night, which was really a symbolic strike against Sadr headquarters in Sadr City, something... a building they destroyed in April and destroyed again last night didn't come as much of a surprise.
TERENCE SMITH: Scott Wilson, tell us what you can about this militia: How big it is, whether it's well organized, whether it's well armed.
SCOTT WILSON: Well, it seems to be well armed. The men who... one of my colleagues witnessed yesterday many, many of them with rocket- propelled grenade launchers, AK- 47s. They seem to have a lot of guns, a lot ammunition, but they are fairly ragtag. I mean, not a lot of military training. They respond to some degree to Sadr's commands and signals, but there is a sense that there may be, you know, not a greatly unified command there, and many operate on their own. It's dangerous to go into some of these places for journalists right now, and so it's hard to get a sense of how controlled they are. But the general feeling is that they are not particularly well disciplined, and in many of these places where they are sort of hunkered down in front of the American attack now, the communities themselves don't like them very much at all, according to people who live there and U.S. officials. So it's... they don't think that they'll be able to sustain this all that long, but trying to actually root them out militarily is very difficult. Even though the people may not want them there and believe that they're jeopardizing these shrines and those in their business, frankly, it doesn't mean that they're going anywhere, and that it's making it any easier for the United States at this point.
TERENCE SMITH: Scott, has the prison abuse scandal, which is all over the papers here in the United States, has that added fuel to this insurgency? Has that inflamed the situation?
SCOTT WILSON: It very much has. Sadr, in his sermon on Friday, used it directly to sort of fan the flames and whip up passions against the United States. He preaches each Friday down in Kufa, which is right next-door to Najaf, and said directly... called for an international court to hold trials, and threatened directly that if justice weren't served in his eyes in this case that there would be attacks in very unexpected ways against foreigners in this country. And so he really is using it as a rallying point and a way to keep his people together and active and inspired in the face of what is a concerted U.S. effort at this point.
TERENCE SMITH: Given all the fighting, what are the prospects that U.S. forces can put down this insurgency between now and June 30, when sovereignty is supposed to be turned over?
SCOTT WILSON: Ideally what the United States would like is the Shiite community itself to handle this problem. Last week a number of very important Shiite leaders, clerics, tribal leaders, politicians got together and made a call for Sadr to leave Najaf, to leave Karbala, to stop essentially jeopardizing these holy places, at the same time calling on U.S. forces not to enter them either. But what they would really like to see happen is for the Shiites to apply pressure to this 30- year-old cleric, and get him to call in his people to put down their arms. Complicating the problem is that Sadr is wanted by U.S. forces for the murder of a moderate Shiite cleric in April of last year while the war was still going on. And so he's... he needs to sort of get out of this legal problem with the United States at the same time. The Shiite leaders are trying to work something out. Perhaps he could go into some kind of protective custody with elder respected Shiite clerics. But really ideally for the United States there could be some sort of deal arranged between Shiite leaders and Sadr and to avert any kind of an intense or intensifying military confrontation.
TERENCE SMITH: We'll have to watch and see if it happens. Scott Wilson of the "Washington Post," thank you very much for joining us.
SCOTT WILSON: Thank you.
MARGARET WARNER: Still to come on the NewsHour tonight, debating the president's vow to stay the course until victory is achieved in Iraq, as well as options for prosecuting those accused of abusing Iraqi prisoners.
MARGARET WARNER: Joining me to discuss the military prospects in Iraq are retired Army lt. General William Odom, a senior fellow at the Hudson Institute. His latest book is "America's Inadvertent Empire." Retired Marine Corps Lt. General Bernard Trainor, an adjunct senior fellow at the Council on Foreign Relations, and co-author of "The Generals' War," a book about the 1991 Gulf War and Larry Diamond, a former political adviser to the coalition provisional authority in Baghdad. He left that post last month. He's a senior fellow at the Hoover Institution at Stanford University.
Welcome to you all, gentlemen. At the Pentagon today, Larry Diamond, I'll give with you, the president talked about defeating enemy forces and doing what it takes to gain victory. How would you define military victory at this point, and is it achievable?
LARRY DIAMOND: Well, Margaret, we can't only talk about military victory. Victory would involve political victory as well. So military victory would involve crushing, I'd say both insurgencies of Muqtada Sadr's forces in the Shiite south and of the al-Qaida and Baathist elements in Fallujah. We've already essentially given up on victory in Fallujah, and fortunately I think we are pursuing the latter military goal. But we're not going to succeed without a political strategy as well that involves the Iraqi people and puts them out in front.
MARGARET WARNER: Gen. Trainor, your view of whether this war is winnable -- because when the president talked today it was as if the war very much was still going on.
LT. GEN. BERNARD TRAINOR (Ret.): Margaret, not with standing the war-like rhetoric of the administration and the fact that there probably are pockets of resistance in Iraq that are Jihadists are Baathists, we're not at war, we're not over there conducting a war. We entered the war when we knocked out half the Saddam Hussein regime. We are out there right now to free the Iraqis and establish some sort of a viable government. The senior marine officer on the scene out there said we didn't come over here to kill Iraqis. We can be your best friend or your worst enemy and they showed that they could be your worst enemy in Fallujah. And now they're trying to be the best friend. The majority of the Iraqis are very happy that we've put Saddam Hussein out of business. And now they want to see us go out of business and leave them alone. And I think we can do that. It's not going to be a 100 percent solution; I would call it the 70 percent solution. And I think Fallujah becomes kind of the motto for what we should be doing. We're dealing with the locals the who are not trying to reinstall Saddam Hussein like regime, but they're acting in large measure with some exceptions, admittedly, out of a civic, a regional and a national pride. They want us to leave and to see to their own affairs, and I think that should be our goal. And that's a political goal, not a military goal, and we shouldn't be using the terms victory or defeat or other war-like rhetoric.
MARGARET WARNER: What's your sense of this?
LT. GEN. WILLIAM ODOM, (Ret): Well, the president set forth there war aims as I remember. One was to get rid of WMD there, the second was to overthrow the Saddam regime and third was to create a constitution al democracy which is pro America. The first two, can be considered either irrelevant or accomplished and the last one is the issue. And there's not going to be a constitutional regimethat's pro American anytime soon, I don't think in several decades. If that is the measure, that's the political aim, then why don't we get there soon. I have reached the conclusion look ago that we shouldn't have gone in because we didn't think we could get that, but I think now it should be clear to those who avoided the test of proposition a near not going to get that, therefore staying longer, cost the U.S. without gaining us anything. We need to go to the niceties of approaching the U. N. and let them have a chance to take it over but we should set some sort of date and begin to much out and leave it to whoever takes over.
MARGARET WARNER: So you're talking about not just handing over political sovereignty on June 30 but moving quickly to get all U.S. troops out?
LT. GEN. WILLIAM ODOM, (Ret): There's no other good reason to stay. And I don't think it makes sense to talk about winning or losing now, in a strategic sense we lost when we started the war. The strategic winners in this have been Osama bin Laden, because we diverted our forces from that, bogged ourselves down in Iraq, the Iranians were absolutely pleased because they hate Saddam, and we've virtually destroyed our own ground forces, they're so overextended, our equipment is so rundown and un-repaired right now, that I don't see any advantages for us for any purpose to stay there in much longer.
MARGARET WARNER: But, Larry Diamond, the president made it clear today that even after the handover of sovereignty and we can address the question of whether there will be a peaceful country to has been over on June 13, but that the U.S. would remain to create a and maintain a security environment so that a free democratic Iraq, as he said, could take root and could flourish. Do you think that is achievable?
LARRY DIAMOND: Well, I think we have an obligation to try. I sympathize with what Gen. Odom has said. But the problem is if we don't work on the security side of things to build up the Iraqi armed forces, the civil defense corps and the police, in a very urgent way, what we're going to do is hand over military power to various militias, and then the country is going to be at very grave risk of descending into civil war. And if you think there is a scandal now over the abuse of prisoners in Abu Ghraib, it will be nothing compared to the outrage that the world will feel if we simply walk away from Iraq and let it descend into civil war, what my friend Tom Freedman calls Lebanon on steroids.
MARGARET WARNER: So you would disagree with Gen. Trainor that what happened in Fallujah should be the model where essentially the marines turned over or asked some insurgent forces and former members of the Iraqi army to go in and pacify the city. You disagree with that as a strategy?
LARRY DIAMOND: Margaret, I don't. I actually think we had no choice in Fallujah. We don't have enough troops in Iraq to do everything at once. I think it's been obvious for almost a year now that we haven't had nearly enough troops there, we probably needed twice as many forces post war as we've had. But we have the number of troop there that we have. And I think we --
MARGARET WARNER: Let me interrupt you then. So what do you mean when you say we can't legitimize local militias?
LARRY DIAMOND: What I mean is that we have accelerate the ever to build up an independent Iraqi police force, civil defense corps and army as rapidly as possible. We need to see if by ceding more controlled to international authorities, we can also bring in some more international forces and buy time to build up the newforces of an Iraqi state. I think that has to be our overriding priority now on the security front.
MARGARET WARNER: All right. Gen. Trainor, your views on what Gen. Odom said, that the best thing is to get out as quickly as we can, but if not, how do we bring security there?
LT. GEN. BERNARD TRAINOR (Ret.): Well, on Gen. Odom's point, if we precipitously leave the area, we're going to have civil war, and that is an impact not only on Iraq but also regionally. On the other point, we originally planned to keep the Iraqi army in place to provide the sort of stability and security that was necessary to prevent the looting, to prevent the insurgencies and so forth. For some reason or other, somebody made the decision up to line to dissolve that army. So what you're seeing in Fallujah is basically going back to the original game plan. Now the CDC that we established, the Civil Defense Corps, was a terrible failure. Why? Because it was an instrument of the United States. But what you've seen in Fallujah is an instrument of the Iraqi people and that's why it's succeeding and that's why I feel Fallujah becomes a model for the 70 percent solution. By the same token, we have to operate very adroitly politically. There's concern on the part of the Shias that we are backing the restoration of a Sunni military which will dominate the country. And by the same token there's a value to that because all of they sudden we have found some of the Shias who are the majority in the country, being a lot more cooperative before the United States, to wit, 150 clerics this past week, trying to convince Sadr to eliminate his militia, and get out of Najaf. They're a little bit concerned and we should be able to exploit that and we should be able to exploit the advantages and leverage with the Sunnis dealing with the Shias, so that we can come to some sort of a national entity to emerge both in terms politically and economically, and also militarily. The majority of the Iraqi people are still sitting on the fence wondering which way this thing is going to go and we so far have blunted very, very badly. But they want a balanced nation within Iraq.
MARGARET WARNER: All right -- a double barreled question to you, General Odom. First of all, respond to your two fellow panelists here that your idea would lead to civil war, and secondly, though, is the Fallujah model the model to go with if we want to avoid that?
LT. GEN. WILLIAM ODOM, (Ret): I guess I'm puzzled as to why we're not having civil wars there right now. I think there's a never never world with my two colleagues here are living in, we're in a war there. Once we destroyed the Saddam regime, we knew there was going to be a civil war. There was no way to stop it. About the majority of the population, majorities don't make policies, intense minorities are going to make, are going to decide what kind of regime emerges in this. Second, recent polls over there show that the majority of Iraqis want us to leave precipitously. Fallujah and that being the model, if that's going to be the model, what we've created is a little enclave where they could continue to use I E D - improvised explosive devices -- which are being used to kill Americans, now that's been made safe for this deal down there, and this will also allow them to strengthen themselves to fight the Shiites when they get around to that. So the talk about any kind of authority that you could turn this over to is, I just don't see what the authority is.
MARGARET WARNER: I'd like to get all three of you finally to respond to something that was in abig front page story of the "Washington Post" this weekend by Tom Ricks in which he spoke to some commanders including several who were quoted by name, saying Larry Diamond, beginning with you, saying that we may be winning tactically, winning battles there, the United States may be, but the U.S. is in danger of losing strategically. Do you agree with that sort of fundamental penchant or concept?
LARRY DIAMOND: Yes, I do. And I think the key to avoiding defeat strategically, let's put it that way, is political. And it's to get Iraqis out in front, to complete the transition to an Iraqi interim government that we're going to regard as having real political authority, not talk about limited sovereignty. And to move the, get the country to look forward to elections early next year to Iraqis taking responsibility for their own security, to building up the new Iraqi police force and armed forces as rapidly as possible. - has to be political --
MARGARET WARNER: Okay, let me get Gen. Trainor.
Gen. Trainor, are we in danger of winning battles but losing this war?
LT. GEN. BERNARD TRAINOR (Ret.): Margaret, I know that there's discussions like that going on amongst the military in the Pentagon. But that's going in the wrong direction. We should not be talking about tactical victories or strategic losses. We should be talking about what we're trying to do in Iraq. They are out of the proper venue, if they're talking in those terms. They're looking at it too narrowly.
MARGARET WARNER: A brief final world from you.
LT. GEN. WILLIAM ODOM, (Ret): Clearly, I think they're right. What's been said, we've had a whole year, if you try to look at these little tactical things today and you compare what was going on a year ago, things are getting worse, and clearly those observations are right and the issue is when we're going to face this reality squarely and stop talking about getting some sort of short that will take over, a mythical authority that we haven't been able to find for a year, seems to be further away today than it was year ago.
MARGARET WARNER: Gen. Odom, Gen. Trainor, Larry Diamond, thank you all three.
MARGARET WARNER: Now, prosecuting the accused abusers. Ray Suarez has that.
RAY SUAREZ: The man who reportedly took some of the now famous photographs from Abu Ghraib Prison will be the first U.S. soldier to face a special court-martial for his actions. He is U.S. Army Specialist Jeremy Sivits, a 24-year-old mechanic from Hyndman, Pennsylvania. Sivits is charged with maltreatment of detainees, conspiracy to maltreat, and dereliction of duty. The maximum penalties for these charges are one year of confinement, a reduction in grade, forfeiture of pay for a year, a fine, or possible discharge from the army for bad conduct. Sivits is one of at least thirteen soldiers who may have been involved in the prison abuse. Six face criminal charges, and six have already received career ending letters of reprimand. The attorney for one of those charged, Specialist Charles Graner, appeared on ABC's "This Week," and said his client acted under orders.
GUY WOMACK, Attorney for Spc. Charles Graner: Specialist Graner is the man to his far left with his hands on his hips. The man to his left in the middle of the screen with his hand on the neck of a prisoner is a civilian contractor with the intelligence community - it's an unusual looking photograph.
QUESTIONER: So you're saying this was all being done, this photo at least, at the direction of intelligence officers?
GUY WOMACK: Directly under the observation of and at the order of intelligence officers.
RAY SUAREZ: Military proceedings against Specialist Sivits will take place at the Baghdad Convention Center next week. At a briefing today Gen. Mark Kimmitt said the proceedings would be open to the media, but not to television cameras.
GEN. MARK KIMMITT: It's a practice of the U.S. Military in an open hearing we allow family, we allow observers, we allow print reporters. It has not been our practice in the past to allow cameras inside. I think there is a concern that this is not a show trial.
RAY SUAREZ: While the Defense Department will oversee prosecution of the soldiers, the Justice Department will prosecute cases involving civilian contractors.
JOHN ASHCROFT: For individuals who are not under military jurisdiction, the Justice Department can have jurisdiction; for individuals who may be contracting with the military but not military, for example; for individuals who may have conducted themselves in a way which might have infringed the law, but whom are no long her the military, there would be Justice Department jurisdiction.
RAY SUAREZ: No charges have yet been filed against the contractors allegedly involved in the abuse.
RAY SUAREZ: We get more on the military we get more on the military and civil legal options for prosecution from Harold Hongju Koh, incoming dean and professor of international law at Yale University Law School and Eugene Fidell, president of the National Institute of Military Justice.
Gene Fidell, what is a court martial?
EUGENE FIDELL: A court martial, Ray, is simply a criminal trial conducted by the military with respect to members of the military.
RAY SUAREZ: Now in this first case of Specialist Sivits, it was pointed out that this is a special court martial and not a general court-martial. What's the difference?
EUGENE FIDELL: Right. A special court-martial is limited in what it can adjudge in terms of punishment. The special court-martial can adjudge only one year's confinement or a bad conduct discharge as a way of throwing a person out of the military. A general court-martial can adjudge any sentence that's permissible by law up to and including the death penalty.
RAY SUAREZ: As in civilian courts, do members of the military have the presumption of innocence?
EUGENE FIDELL: Yes, they absolutely have the presumption of innocence, and in any military trial, the government has the burden of proof beyond a reasonable doubt. So in important respects it's just like a civilian criminal trial.
RAY SUAREZ: Can members of the military subpoena up the chain of command, and try to present evidence that they were told to do the things that they've done as a defense?
EUGENE FIDELL: Yes. If that's going to be one of the allegations, they have a right to compulsory process. They can require witnesses to be summoned and they can have documents subpoenaed. So again, the usual panoply of tools that people have in civilian trials are available to the military defendant.
RAY SUAREZ: Professor Koh, the United States of course is a signatory of the Geneva Conventions. In a case like this, are the articles of that convention triggered? Are there some norms that the United States has to follow?
HAROLD HONGJU KOH: Yes. Whether these detainees are treated as prisoners of war or security detainees under the occupying force, either way the United States has an obligation not to subject them to cruel, inhuman, or degrading treatment. There's another treaty, the torture treaty, which the United States is a party to, which also says that U.S. officials shall not subject people in their custody to cruel, inhuman, or degrading treatment. So the obligations are pretty clear under international law.
RAY SUAREZ: Now "torture" is a term that's used quite freely to cover a wide range of behaviors. Is there a definition that everybody can work with, that you can use as a determinant to decide whether the torture laws apply in this case?
HAROLD HONGJU KOH: Yeah, there's quite a detailed definition in the torture treaty, which has been also included in various provisions of U.S. law. I think the important thing here is that the line between torture and non-torture is not a critical one, because that treaty forbids torture and cruel, inhuman, or degrading treatment. And whatever we think about what's going on, it's definitely degrading treatment and would fall within the scope of these international prescriptions.
RAY SUAREZ: Gene Fidell, does it complicate matters that there were also civilians involved in the treatment and the oversight of these prisoners?
EUGENE FIDELL: Well, yes, it does in a way because there may be some aspects of this that wind up being litigated in the military justice system and other aspects, maybe the next person in the photograph, for example, might wind up in a federal district court under something called the Military Extraterritorial Jurisdiction Act, or the torture provision that Professor Koh, Dean Koh referred to just now. So you might have separate aspects of essentially the same transaction playing out in different courtrooms thousands of miles apart.
RAY SUAREZ: Well, you've mentioned civilians going into civilian courts. Are there possibilities, under the way the law is written right now, for civilians to end up in military courts?
EUGENE FIDELL: Well, on paper there's a provision in the uniform code of military justice that permits, in time of war, persons who serve with or accompanying the armed forces in the field to be prosecuted in a military court. But under a series of decisions dating from the 1950s, there was a serious cloud over that provision, and I think there's sufficient clouds over it that no prudent military prosecutor would bring such a case into court, particularly since Congress passed the Sessions Act in 2000 to plug some of the gaps that the Supreme Court had created in the '50s through 1960.
RAY SUAREZ: There was no congressional declaration of war in this case. Does that complicate matters under the way the law is written now?
EUGENE FIDELL: No, but that's pertinent, Ray, to your last question. There was a decision in 1970 in a case that arose out of the Vietnam War under the clause that I mentioned just before that I think had to do with a merchant mariner. And in that case the then court of military appeals, it's now called the U.S. Court of Appeals to the Armed Forces, held by a vote of 2-1 that in order to bring a civilian within that clause the time of war had to be such that the result of a congressional declaration of war, and we haven't had a congressional declaration of war in this current hostility.
RAY SUAREZ: Professor Koh, does the state of Iraq play into this at all in legal terms? There's no fully functioning civilian government or Iraqi administration through much of the country right now, so the United States is providing a lot of the services that make up a legal system.
HAROLD HONGJU KOH: Well, the U.S. and its allies, the coalition provisional authority, are functioning as an occupying power and they have obligations under the Geneva Conventions. But I wouldn't get carried away with how complicated this is going to be. There are two big points that can't be ignored. One is that war crimes law changed after World War II, so you can't simply point fingers and get away with it. Before Nuremberg, people who committed the crimes actually physically did the acts would say "I was just following orders," and people who ordered them would say "we didn't know what was going on." What Nuremberg made clear was everybody is responsible-- the people who did it and the people who ordered it. And so you can't simply point the finger at someone else and escape liability. The second point is that whatever we know about Private Jeremy Sivits, he is not the person who created the culture of condoning these kind of acts which made this possible. None of the American soldiers in the picture seem to be afraid or to be embarrassed about what they were doing. They were clearly operating in an environment in which what they were doing was not just permitted but actually encouraged, and that means that somebody higher up created that environment. And those are the people who we really need to know who they were, what kinds of orders were given which made our ordinary foot soldier so contemptuous of the basic human rights of these detainees.
RAY SUAREZ: Gene Fidell, isn't that where it gets difficult? I mean, nobody is going to say "oh yes I told them to do exactly that," are they?
EUGENE FIDELL: No, I would be surprised if that were the case. But I think the point that Professor Koh just made is the important one. What you're talking about is climate and the kinds of responsibilities that are imposed by the law on commanders. Oftentimes what you're looking at are questions of dereliction, of failure to exercise due care in the circumstances-- what did the commander know, or what should the commander reasonably have known? There's a kind of vicarious liability, in fact, on the part of a commander for acts performed by his or her subordinates. The most famous case of this probably is the case of General Yomashta, who was the Japanese commander-- I think I've mentioned him before on the show -- who was hanged after World War II. He was the commander in the Philippines, and was effectively held responsible for misconduct on the part of his subordinates. What these cases raise is the question of how responsibility should be assigned. What kind of punishment regime should apply to what are effectively crimes of command, crimes of oversight, crimes of carefulness or lack of carefulness? And thus far the U.S. Military has tended to use administrative sanctions such as a reprimand or non-judicial punishment. That may strike people as unfair in a case like this, where you have people at the lower end of the official hierarchy who are being taken to courts-martial, whereas people at the upper end are going to get reprimands and then probably permitted to retire. And the juxtaposition of those two outcomes may raise some questions as to whether we should move to a more formal or move back to a more formal process of using courts martial to punish senior officers.
RAY SUAREZ: High-ranking civilian and military officials, Professor Koh, have promised transparency, public accountability. Is the United States obliged to provide those under the Geneva Convention?
HAROLD HONGJU KOH: Yes. I think the Geneva Conventions have to be enforced not just by the Red Cross going in, but also by those who are doing the detaining permitting their sites to be inspected and violations to be determined. I think the think to remember, Ray, is that as shocking as these photos are, human rights lawyers have seen this kind of thing before. What you see the man standing on the box with his hands wired is part of a well established interrogation technique. What clearly happened is that this group of people were told: Set these people up for interrogation; don't treat them as if they're prisoners of war who are entitled only to give their name, rank, and serial number, and it's that act which is saying these are not people to whom the Geneva Conventions apply. That was a fundamental decision that was made. And Gene is absolutely right, the question is, should commanders -- did they know or should they have known that excluding these people from the Geneva Conventions would create this kind of culture of abuse? If they should have known, they're responsible.
RAY SUAREZ: Gene Fidell, is there an expectation on your part that a lot is going to come out in court about what people were told about interrogation standards, how hard you could press people, the ideas that were generated inside the American military as the war on terrorism began? Is this going to be a sort of public moment for things that often civilian populations don't hear a lot about?
EUGENE FIDELL: I think you're absolutely right on that, Ray. I think there are going to be some challenging legal issues presented to the military judge who presides in this and related cases in terms of how broadly to allow the defense to cast its net. On the question of photography, by the way, if I can for a second, photographs have only been around for a little more than a century and a half, but they've been very potent in wartime, really, since the Civil War and Matthew Brady. Only within the last few years there was an exhibit in Germany of photographs that were taken by German soldiers during World War II that caused a tremendous controversy, because they showed some really unspeakable acts. It shows the power of the image, and I think we're going to see that played out, but with the ratcheting up associated with the digital age where anybody with $100 can get a digital camera and sends things over the Internet.
RAY SUAREZ: Gene Fidell, Professor Koh, thank you both.
MARGARET WARNER: Again, the major developments of the day. The U.S. Military announced the first court-martial in the prisoner abuse scandal will begin in Baghdad on May 19. President Bush again gave a firm endorsement of Defense Secretary Rumsfeld, despite calls for his resignation. Two U.S. soldiers were killed in separate attacks in Iraq. And the president of Chechnya was buried, a day after he was assassinated in a bomb attack.
MARGARET WARNER: And again, to our honor roll of American service personnel killed in Iraq. We add them as their deaths are made official and photographs become available. Here, in silence, are 12 more.
MARGARET WARNER: We'll see you online and again here tomorrow evening. I'm Margaret Warner. Thanks for being with us. Good night.
The NewsHour with Jim Lehrer
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Chicago: “The NewsHour with Jim Lehrer,” 2004-05-10, NewsHour Productions, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed June 21, 2024,
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