WEDGEWOOD: Well, in a common sense way it's very much like assisted suicide. There's a very strong principle in the law of war that whether or not you agree with the purpose of the war, you should still allow the war to be fought the right way, and the distinction between military targets and civilians is fundamental. So, it is a war crime to deliberately place civilians around a military target in order to shield that target. It's not a legitimate way of protesting the purpose of a war.
ABRAMS: Van Jones, what do you make of that?
VAN JONES, ATTY, PEACE AND JUSTICE NETWORK: Well, first of all, I disagree. There are two things that we have to be clear about. First of all, there is no specific provision of the War Crimes Act that these people are violating. So, just because Rumsfeld doesn't like it or somebody in that White House doesn't like it doesn't make it unlawful.
So, first of all, we have to be very clear that they aren't violating any law that pertains to them. The Geneva Accords apply to states. The U.S. War Crimes Act applies to individuals. They aren't violating any provision of that.
Number two, even if there were a law created for this purpose, it would be unconstitutional. These people are expressing their First Amendment rights to the expression of association in travel.
Third, even if such a law were not unconstitutional, which this law doesn't even exist, if one were to create it, and it were to pass constitutional muster, these people have a defense and the defense is the defense of necessity, the necessity to prevent a greater harm, which in this case is the murder of, you know, thousands of innocent Iraqis.
ABRAMS: You know the necessity defense would be rejected, though, right? I mean, let's assume for a minute that you know that no court, no jury would accept the necessity defense...
JONES: But there's no law that they can be charged with violating...
ABRAMS: Separate issue...
JONES: They're not violating...
ABRAMS: Right.
JONES: ... they're not violating any U.S. law now. And one problem that we have...
JONES: ... just to finish -- we -- you know, Rumsfeld wants to throw out the international law to attack Iraq, he wants to throw out domestic law to attack U.S. citizens, and he's wrong on both counts.
ABRAMS: All right, go -- I know both of you want to jump in. Go ahead Jay.
JAY SEKULOW, AMERICAN CTR. FOR LAW & JUSTICE: Yes, let me say this first, there's no First Amendment issue here. I do a lot of work with the First Amendment and this is not a First Amendment case. They're overseas, they're in a hostile territory and basically, they're giving aid and comfort to the enemy, which, by the way, under the definitions of law is treason, so that's number one.
Number two, the Geneva Convention states, and I'm going to read from Article 28, Section 4, in international conflicts civilians may not be used to protect areas from military operations. If...
SEKULOW: If the leadership of these groups is working in hand, toe-to-toe so to speak, with the leadership of Iraq, I think they do have Geneva conflict violations here...
SEKULOW: ... and let me say third, with regard to the issue of enemy combatants here, if, in fact, they take any aggressive action, I mean aggressive, it could be, you know, trying to block tanks entering into Baghdad, U.S. troops involved, they are then putting themselves at risk to be enemy combatants. And as we've talked about on this program before, that raises a whole host of issues and the fact that they're U.S. citizens does not shield them.
JONES: Well first of all, the government has already taken off the table whether or not the human shields are combatants. They've already declared them to be noncombatants, so that's off the table. The other thing, which you have to deal with is you're misreading the Geneva Accords. What you just read applies to states. It does not...
WEDGEWOOD: Dan...
JONES: ... apply to individual...
SEKULOW: But it also applies...
ABRAMS: All right...
ABRAMS: ... let me let the professor answer that one. Hold on -- that issue, I'll get back to you, Mr. Jones, I promise. Ruth Wedgewood, what about that? I mean, people do interpret the Geneva Convention as applying to states and not individuals, so the argument goes, according to...
WEDGEWOOD: That's not right.
ABRAMS: ... Mr. Jones, you can't apply it to individuals.
WEDGEWOOD: Treaties are signed by states, but they govern everybody who's on the territory of the state signatory and you cannot shield a military. Whatever your motivation, however...
WEDGEWOOD: ... conscientious, you can't shield a military target with a human...
JONES: You're leaving the noun out. A state can't do it, but individual...
SEKULOW: No, but individuals working with the state that are working with...
(CROSSTALK)
SEKULOW: ... are violating the Geneva Convention.
ABRAMS: But Jay...
ABRAMS: But Jay, the problem -- we're going to take a break here, but I'm going to ask Jay about this after the break. The problem is and this may sound like a legal technicality, but it's important...
UNIDENTIFIED MALE: It's not.
ABRAMS: ... is how do you relate the fact -- you have to prove that they're working with Iraq as opposed to working with some, you know, group out there who wants to stick these people in these sensitive sites to prevent some war. I think they're going to have a hard time with that. They may not have a hard time, though, charging these -- I think they might have an easier time charging them with treason. Anyway, we're going to come back. More on this topic, human shields, take a break.
(COMMERCIAL BREAK)
ABRAMS: Coming up, why City Council should stop wasting their time passing resolutions about Iraq. And who will be charged with crimes if and when the American human shields get killed in Iraq, and what if they make it back alive? That's coming up.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
RUMSFELD: These are not tactics of war. They are crimes of war. Deploying human shields is not a military strategy, it's murder, the violation of the laws of armed conflict and a crime against humanity, and it will be treated as such.
(END VIDEO CLIP)
ABRAMS: All right, it's obvious that that applies to Saddam Hussein. If Saddam Hussein uses human shields and he's captured alive, he's going to be tried as a war criminal, as will anyone who works with him in that effort. The question we're asking hereis, what about these Americans, these Europeans who are sending over these American and European human shields?
JONES: They're heroes.
ABRAMS: Could that -- well, all right.
JONES: They're not criminals, they're heroes.
ABRAMS: All right, Van, before I even get to the intro, Van Jones is jumping in, describing them as heroes. But Ruth Wedgewood, look, apart from the fact that almost everyone doesn't view them as heroes at all, and everyone in this country particular views the idea of them getting into soldiers' ways -- soldiers' way in Iraq is extremely disturbing to say the least. Is it a crime, again, Van makes the point that generally this applies to states. I want to know can these organizers, yes or no, be charged with some sort of war crime for sending these people over to Iraq to serve as human shields?
WEDGEWOOD: Well, it's new territory, but what you keep in mind that the actions they're taking are going to be carried out in Iraq. So it's not simply federal, criminal law that would apply, whatever the 1996 War Crimes Act provides or not, there's going to be a war crimes tribunal in Iraq. And the dilemma that they put servicemen in is the attempt to force them to hold their fire on a legitimate military target by putting themselves as a moral target in front of that...
ABRAMS: Yes...
WEDGEWOOD: ... valid military target...
ABRAMS: ... and Jay, you and I talked yesterday about the idea of the human shields themselves. I was just -- I just felt that they should be charged with something if they make it back to this country and they in any way interfere with our soldiers there. But what do you make of this issue of the organizers, the people who are in effect deploying them there?
SEKULOW: I think the reason it could fall within the Geneva Convention and the War Crimes Act generally is the fact that we know that if American citizens go to Iraq that the Iraqi regime under Saddam Hussein is not going to let them just run throughout the land. They're going to control where they are, the government will deploy them, and the leadership, then, of these groups is in cohort. They're working with them and that violates the Geneva Convention.
Remember, it was the illegal underground in some of the Nazi cases where the Nazis had not just their armed troops and their uniform troops that were tried in the war crime, the war tribunal...
ABRAMS: Van Jones, that's a very interesting point, and I think a good point, and that is that Saddam Hussein is going to in effect be signing off on wherever these human shields are going and that sounds to me like they're in cahoots with Saddam, war crime.
JONES: Well that's not -- my understanding is that they actually are not in cahoots with Saddam Hussein. Why are these young people there? First of all...
ABRAMS: But that's a separate issue...
ABRAMS: It is a separate issue of why they're there.
JONES: ... the young people are not there to support Saddam Hussein. The young people are not there because they're fans of Saddam Hussein.
ABRAMS: But why they're going is not the issue...
ABRAMS: It is not the issue. If they are there...
ABRAMS: ... and they're interfering with the soldiers, the question I want to know, are the people who are sending them there, who are organizing this, who are deploying them, Jay makes a very good point -- that is Saddam Hussein controls this country. They are not going to be able to walk at their leisure on the streets of Baghdad.
JONES: What we do know about -- right now this is our conjecture -- what we do know about these young people is this. They are the only voice of sanity that we have heard for quite a while in this debate. We have been crushed between the rush to violence by Bush and the rush to violence...
ABRAMS: You're not answering my question...
JONES: And what these young people represent is a third way out for the whole human...
SEKULOW: But this is not a First Amendment case.
SEKULOW: This isn't about the First Amendment.
JONES: Well first of all...
SEKULOW: They're not exercising First Amendment rights in Iraq. I assure you, they don't have a First Amendment freedom of speech protection.
SEKULOW: They're interfering with possible military action, and that is serious and is criminal.
WEDGEWOOD: Dan, if I can add, you're not allowed to veto a war by shielding military targets.
JONES: It's not a question...
WEDGEWOOD: If Saddam is shooting at us, and we can't shoot back because some unhappy young soul has put himself in front of the military target, that is...
JONES: Well Professor Wedgewood...
WEDGEWOOD: ... asymmetric conflict, it's not considered...
JONES: Professor Wedgewood...
JONES: ... when I was a student of yours at Yale, you were a lot more precise with your language than you are on this program. You and I both know that the state of -- the United States has to consider proportionality and necessity when there are civilians who are potentially targets in a U.S. bombing run or...
ABRAMS: Hang on -- wait a second...
ABRAMS: Let him finish.
UNIDENTIFIED MALE: Let's talk law.
JONES: The presence of civilians does not prevent the -- any military action. It does raise the question of proportionality and necessity.
ABRAMS: All right...
JONES: The reality is that the reason that Rumsfeld is so upset is that he knows that he is going to be launching...
ABRAMS: All right...
JONES: ... missiles at civilian targets.
ABRAMS: All right, let me...
ABRAMS: ... let professor...
ABRAMS: Let me let your...
ABRAMS: ... let me let your professor respond because I'm almost out of time. Professor, tell your student what the real deal is here.
WEDGEWOOD: No, in real life, indeed, you have to make a judgment about proportionality, i.e. the relative military value of the target and the relative damage to civilians every time you target. But by trying to up the ante and putting, say, 500 civilians to shield a tank...
JONES: It's not a crime.
WEDGEWOOD: ... it's weighting that unfairly and...
JONES: That's not a crime.
WEDGEWOOD: ... private action is covered under the laws of war. It's customary...
SEKULOW: It's certainly treason.
WEDGEWOOD: ... law as well as treaty law.
SEKULOW: ... giving aid and comfort to the enemy...
SEKULOW: ... which is a standard of treason.
JONES: Not under the...
ABRAMS: I think it may be...
ABRAMS: I -- well, maybe not, but I think...
ABRAMS: ... it may actually become treason...
ABRAMS: I think it may become treason as Jay Sekulow points out. All right, Ruth Wedgewood, Jay Sekulow, Van Jones, thank you all very much...
SEKULOW: Thanks Dan. ABRAMS: ... for coming on the program. We appreciate it. (CROSSTALK)WEDGEWOOD: Bye Dan.
