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CNN Talkback Live

Collision at Sea: Did the Navy Give the Right Punishment?

Aired April 24, 2001 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Commander Waddle has been stripped of his command and his career effectively terminated.

(END VIDEO CLIP)

BOBBIE BATTISTA, HOST: But is it enough to compensate for the death of nine people killed when the USS Greeneville collided with a fishing vessel?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: He has paid dearly.

(END VIDEO CLIP)

BATTISTA: The families of the Japanese fishermen don't think so.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: We really wanted a court-martial.

ADMIRAL THOMAS FARGO, U.S. NAVY PACIFIC FLEET COMMANDER: Ultimately, this was an accident, a tragedy in which mistakes were made.

(END VIDEO CLIP)

BATTISTA: Commander Scott Waddle refused immunity and accepted responsibility for the incident. He was found guilty of dereliction in performance of duties and endangering a vessel.

(BEGIN VIDEO CLIP)

MICHELLE BUNCH, COMMANDER WADDLE'S SISTER: I think he really wants to go and make amends to these people.

(END VIDEO CLIP)

BATTISTA: After the hearing, Waddle said: "I think about those lost at sea every day and I grieve for those families. To those families I offer my sincere apology and my hope that my government will promptly and fairly settle all claims made by these families against the United States as a result of this accident."

Did Scott Waddle get off too easy, or was stripping him of his command and his career punishment enough?

BATTISTA: Good afternoon, everyone. Welcome to TALKBACK LIVE. As we just reported, Commander Scott Waddle did refuse to ask for immunity, and he plans to make a personal apology to the families of the Japanese fishermen. But those families are disappointed that he has not been court-martialed.

CNN correspondent Martin Savidge joins us first from Pearl Harbor, Hawaii with the latest -- Marty.

MARTIN SAVIDGE, CNN CORRESPONDENT: Hello, Bobbie. As you know, Admiral Fargo delivered the message to Commander Scott Waddle yesterday in a proceeding that's known as an admiral's mass. That is a non-judicial form of punishment, certainly less severe than a court- martial that had been talked about at the very early stages of the court of inquiry. What it essentially means is that Commander Waddle was found guilty of dereliction of duty, and also the negligent hazarding of a Navy vessel. He was not found guilty of the more serious negligent homicide charges; there could have potentially been nine counts of that. If he had gone to court-martial and found guilty, he could have possibly spent 27 years in prison as a result. Instead, he was merely given a punitive letter of reprimand that is considered to be serious, and his career in the Navy, as well know, has come to an end.

Also, as to the other five crew members, their punishments range from basically a verbal dressing down, letters of admonishment, and possibly some other proceedings known as a captain's mass that's a less serious form of the admiral's mass. But their careers in the Navy are expected to continue -- Bobbie.

BATTISTA: Any reaction at this time from the families of the Japanese victims, Marty?

SAVIDGE: They are angry, they are upset. Many of them had anticipated that there was going to be a court-martial. We have known now for some weeks, this information leaked out, that was not going to take place. But until they heard firmly from Admiral Fargo, who is the commander in chief of the Pacific Fleet, they did hold out some hope. They looked upon this as if it had been an automobile accident in which nine people had lost their lives. They say had that been the case, then most certainly there would have been some sort of court proceeding and possibly jail time. They see no difference here despite the fact that we are talking about a submarine as opposed to a simple car -- Bobbie.

BATTISTA: Where is Commander Waddle now, Marty, and what does his future look like?

SAVIDGE: Well, his future for the most part is that he is going to remain pretty much at Pearl Harbor. He has been assigned now to shore duty. He will not ever be in command of a nuclear submarine, and he will ride out the rest of his 20 years of service to the U.S. Navy. He's expected to retire in October of this year, and he will receive full military benefits.

As you mentioned, he is also planning to make a pilgrimage, if you want to call it that, to Japan. Ironically, that is where he was born. And he is going to speak publicly and personally to the family members directly. He also plans to apologize to the principal or the director of the school from which the Ehime Maru sailed, and he wants to set the record straight and finally put an end as far as his formal apologies and feelings to these people -- Bobbie.

BATTISTA: All right, Martin Savidge in Pearl Harbor. Thank you very much.

Let me get a quick reaction from the audience. We have a number of veterans with us today.

Charlie, go ahead.

CHARLIE: I'm a veteran. I was in the U.S. Air Force. My concern is he didn't only make one mistake, he made several mistakes in judgment. So you can't just say the man just made one error -- he made several errors, which caused a problem. I also think if he was an enlisted man, it would be more severe than being an officer. Seems like they take care of their own.

BATTISTA: Let me bring in from the Pentagon now Rear Admiral Stephen Pietropaoli, major chief of information for the U.S. Navy.

Thank you very much for joining us quick notice here.

REAR ADM. STEPHEN PIETROPAOLI, NAVY CHIEF OF INFORMATION: It's a pleasure to be here, Bobbie.

BATTISTA: Are you confident that the Navy has completed this investigation, and is it over?

PIETROPAOLI: I think -- I'm confident that Admiral Fargo's investigation and the court of inquiry's work is a complete record of both what happened between the Greeneville and the Ehime Maru and the accountability actions which were appropriate afterwards. It's clear that a number of mistakes were made, as the gentleman in the audience noted, but these were mistakes not of criminal intent or of gross negligence, but they were mistakes, errors in judgment. And indeed, Admiral Fargo found Commander Waddle guilty of two -- violation of two articles under the uniform code of military justice and provided punishment for that effectively ending his career. It won't be completed, this chapter, until we have resolved our issues with the families or compensation claims are being worked. There remain the possibility of salvage, which is being looked at for the Ehime Maru, recovery of remains, which is actively being looked at in Hawaii.

But in terms of the accountability actions and getting to the facts, I think the court of inquiry record is quite thorough both on what happened that day, that tragic day between the Ehime Maru and the Greeneville and also the other issues they were charged to look at including the conduct of the distinguished visitors program.

BATTISTA: And was a court-martial considered? And why was it thrown out?

PIETROPAOLI: Court-martial was, of course, an option available to Admiral Fargo. Admiral Fargo, I think, spoke quite clearly on this. In the Navy and in the military service in general under the Uniform Code of Military Justice, general court-martial is reserved for those felony level offenses that clearly show criminal conduct, criminal intent, intentional wrongdoing.

In this case, I think one of the -- I think it was Martin Savidge mentioned that people are looking at this as an automobile accident. Tragically in this country, there are automobile accidents every day in which no one is taken to jail or charged with a crime. In this case, although mistakes were made, none of them were intentional, none of them rose to the level that required adjudication and a general court-martial.

BATTISTA: Let me bring two other voices into this conversation. Retired lieutenant colonel Robert Maginnis is with us. He's a senior director for national security and foreign affairs at the Family Research Council. He's the former director of the military readiness project. Also with us is Doug Johnston, a retired Navy submariner and former executive vice president of the Center for Strategic and International Studies.

Gentlemen, welcome to you.

Colonel Maginnis, let me start with you. We heard what commander -- the charges that Commander Waddle was found guilty of. Did you think -- does the punishment fit the crime?

RET. COL. ROBERT MAGINNIS, U.S. ARMY/FAMILY RESEARCH COUNCIL: Well, Bobbie, you know, clearly, we have the inquiry, board of inquiry looked at this terrible incident and found that malice was not intended, that there was no knowledge that if they did the ballast blow, they were going to knock a vessel to the bottom of the sea.

But still, the message to the civilian public is what we're dealing with here -- the Japanese public especially. Here we have a man that is going to be basically allowed to retire. He's going to get $35,000 a year for -- you know, beginning this year the rest of his life. He got a letter. He's not going to spend any time in jail. They have nine dead Japanese citizens' boat at the bottom of the ocean. They begin to wonder, you know, is this justice? Yeah, we may get some money like an insurance company would give us from a traffic accident, but the question is: Is this military justice covering up for one of its own. And I'm concerned that the messages need to be firm, that we need to send clear messages to not only the armed forces, that there's accountability for its stupid mistakes even though they were not intended, obviously, but there's also a message to the general population that has no military experience at all that we're not easy on our people when we have tragic mistakes like this.

PIETROPAOLI: Bobbie, I have to comment on that if I may.

BATTISTA: Yes. PIETROPAOLI: I think the colonel is exactly right. The message we send to the American people, the Japanese people, and indeed to our own internal military audience is very important. But the wrong message would be that we will gratuitously take an individual to court-martial in order to satisfy Colonel Maginnis' concern about whether or not this is covering up for one of our own. It's simply not the case.

The commanding -- the convening authority in this case, Admiral Fargo, must look at the facts at hand and must indeed divorce himself from such issues about whether or not this will be satisfactory to this audience or that audience and has to look at the facts and apply his best judgment as an operational commander guide by the principles of the Uniform Code, advised by his staff judge advocate, and make the right decision with respect to what happened here. There was no felony level criminal offense here. To use a court-martial in order to satisfy other audiences would indeed be a miscarriage of justice. This is not about what America stands for nor what America's military stands for.

BATTISTA: I think -- let me get Doug in here. And I think what's hard for some people to understand is that in civilian law, for example, that, you know, even when you don't have criminal intent, you can certainly still do jail time if you're guilty of something negligent or involuntary so...

PIETROPAOLI: But an example of that, Bobbie, would normally be if there's alcohol involved in some sort of an automobile accident. Certainly those cases can be taken into the criminal court and often are.

BATTISTA: Or reckless driving or...

PIETROPAOLI: There's nothing like that alleged here. What we have here is a combination of errors by many people. The court of inquiry makes it very clear that Commander Waddle set a tone of unnecessary urgency in the conduct of these operations. His crew picked up on that tone, and what followed was a tragic series of accidents -- of mistakes which led to a tragic accident in a kind of a one in a million shot where these two vessels in a large ocean would occupy the same place at the same time. It is not a question of something where you need to say this person has to spend time in jail for that offense.

Commander Waddle carries this with him to this day. He was quite clear and quite eloquent in the grief and sorrow that he feels for these families. If he could undo this, he would undo it in a heartbeat. But it is not -- it is not a se of military justice to try to pursue some other agenda ignoring the facts at hand. And Admiral Fargo applied the facts at hand and made the appropriate choice in terms of assessing accountability and taking action to punish Commander Waddle.

BATTISTA: And Doug, what do you think?

DOUG JOHNSTON, RETIRED NAVY SUBMARINER: Well, I strongly suspect that had he been subjected to a court-martial, the punishment would have been pretty much the same. I say that because people should not underestimate the severity of what's being exacted here. To lose the command of one's ship is a real disgraceful sort of happening in a person's life. To terminate a career where someone has spent 20 years often working 80 plus hours a week trying to get to the top, to have that nipped in the bud, these are not inconsequential penalties for him to pay. And then there's also the element of national disgrace that goes with that. But I tend to agree with what's been done so far.

BATTISTA: Colonel Maginnis, civilians -- the civilians that were on board, the witnesses if you will, were not interviewed during these inquiry. The court of inquiry decided that after reading their statements that they didn't feel it was necessary. Are you confident then that a complete investigation has taken place?

MAGINNIS: Well, Bobbie, the NTSB, of course, spoke to him at the court of inquiry as I understand did not. And Admiral Fargo had that discretion and apparently elected not to do that because he didn't think it would contribute to facts in the case. I think, though, that in the public eye, the Navy needs to deal with reality that there's still a perception out there that 16 civilians, and quite frankly, last year almost 8,000 civilians were aboard naval vessels for good reasons: to understand how complex and difficult it is to run our Navy in a modern world. So I think, though, that we have to have a full airing of the consequences of, you know, 16 civilians in a very tight control room with all sorts of issues, a command climate that admittedly has some problems and may have contributed to this whole mess.

BATTISTA: We'll talk a little bit more about that when we come back, from the break. As we do go to the break, what do you think of Scott Waddle's punishment? Take the TALKBACK LIVE online viewer vote at cnn.com/talkback. AOL keyword: CNN. And while there, check out my personal note to you and take time to e-mail me if you can. We will be right back.

(COMMERCIAL BREAK)

BATTISTA: The audience is still having a little bit of trouble grasping some of the aspects of this case.

Mike, go a head. You had an anecdote.

MIKE: I was just commenting on the question from the Pentagon about the guy saying that there was no malice involved but it was just basically him, I don't know, making some mistakes. And he had made a comment about civilian life not making mistakes, usually that's involved in drugs. And that's not because I'm from a school system in north Georgia where a school bus driver crossed the railroad tracks and she failed to follow procedures of crossing that railroad tracks. And that created an accident with a train and three students were killed. One of those students, not the ones that were killed, but her daughter was severely hurt, and they're punishing her because of her negligence, and she's going to go to jail. And that didn't involve drugs. BATTISTA: So the question is: Why did the court of inquiry opt not to pursue neglect the homicide charge, I guess?

PIETROPAOLI: That actually, Bobbie, was Admiral Fargo's decision. And again, he spoke to that last night. He believes that the two charges which he found Commander Waddle guilty was what was substantiated by the facts, the hazarding -- negligently hazarding a vessel and dereliction of performance of his duties. And these are serious charges under the Uniform Code of Military Justice.

As for Mike's anecdote, I don't deny that there are circumstances -- specific circumstances under which someone might be charged with a crime for negligence that didn't involve alcohol or drugs. I only say that you have to look at each case on its merits as Admiral Fargo did here. And he did not feel anything that was put in evidence during the court of inquiry or during his review of the facts in this case would lead him to believe that a general court-martial was appropriate to deal with a felony level offense. He just didn't find that in evidence by the findings of the court of inquiry by his own examination.

BATTISTA: Let's get some more explanation and education on how all of this was conducted. Joining us is Eugene Fidell, who is president of the National Institute of Military Justice.

EUGENE FIDELL, NATIONAL INSTITUTE OF MILITARY JUSTICE: Hello.

BATTISTA: Hi. Eugene, help us out with this. This court of inquiry that looked into this incident, how is that different from a court of law?

FIDELL: A court of inquiry is really just a very fancy board of investigation. It's an investigative body supposed to look into all the facts and circumstances; that's its first tax. It's second task is to recommend disciplinary action. And it's third task in appropriate cases is to exonerate people. So it has three functions.

I think it may be helpful to viewers, though, to focus on a very interesting aspect of the proceedings, and I think it was suggested earlier on in your program. Admiral Fargo focused on whether there was -- I'm reading from his statement -- criminal intent or deliberate misconduct. And it may be worthwhile for viewers to know that nonjudicial punishment, which is what he invoked here, is under the Uniform Code of Military Justice, supposed to be reserved for minor offenses, defined as follows: Whether an offense is minor defends on several factors: the nature of the defense, the circumstances surrounding its commission, the offender's age, rank, duty assignment, record and experience, and the maximum sentence imposable for the offense if it was tried by a general court-martial. And in that regard, the manual for court-martial, which is prescribed by the president of the United States, provides that ordinarily, a minor offense is an offense for which the maximum sentence imposable would not include either a dishonorable discharge or confinement for longer than one year.

So as viewers consider Admiral Fargo's decision making here, they may want to take into account the possible charges that were on the table. The first was dereliction of duty for which the maximum confinement is three months. So that would seem handily within the concept of minor offense. The second was negligently hazarding a vessel for which, however, the punishment, that maximum punishment if tried by general court-martial is two years confinement. So that would seem to be on the other side of the line. My feeling was that there were three other offenses at least conceptually in the picture here. One had to do with reckless operation of the vessel for which the maximum offense punishment is 18 months; second that you mentioned I believe is involuntary manslaughter by culpable negligence for which the maximum punishment is 10 years confinement. And the last is negligent homicide for which the maximum confinement is three years. Now what's very important for viewers to be aware of is that in none of these is intention an element of the offense. For dereliction of duty, simple negligence or culpable inefficiency is enough. For negligently hazarding vessel, ordinary negligence is enough.

BATTISTA: So what you're saying is...

FIDELL: For reckless operation of a vessel...

BATTISTA: ... you disagree with this decision?

FIDELL: ... negligence, more than simple negligence and so on.

PIETROPAOLI: I think the point that Eugene Fidell makes is exactly right. And those are precisely the kinds of factors which we charge the convening authority, in this case, the commander of the Pacific Fleet, to make those judgments.

FIDELL: Right. Let me -- it's very interesting, also. And this is a kind of decision that's committed to Admiral Fargo's discretion. So there's a sense in which, you know, he has important responsibilities under the UCMJ. It is interesting, though, that over the last number of years, the Navy has seemingly moved towards use of the nonjudicial punishment forum for handling what I would call crimes of command, these dereliction crimes. They're in a way sort of white- collar crimes associated with the commander of a vessel or other unit.

For future reference, it's also interesting to note that we may be on our own sort of trajectory on this. Only last month, the United Kingdom conducted a general court-martial in the Royal Navy because HMS Graphton (ph) and Krigett (ph) was run a ground last year in Norway. Both the commanding officer and the navigator were prosecuted at a general court-martial and sentenced to be severely reprimanded which is comparable of course to the nonjudicial punishment that was administered here.

The other thing that I think is quite important to bear in mind is hypotheticals...

PIETROPAOLI: Bobbie...

BATTISTA: If you could hold that thought real quick and...

FIDELL: Sure. BATTISTA: And I know the admiral wants to respond to you. I do have to take this quick commercial break. We'll be back in just a minute.

(COMMERCIAL BREAK)

BATTISTA: Commander Waddle retires with a $34,741 pension with an annual cost of living increase, medical benefits, survivor benefits and commissary and base exchange privileges.

Let me get a couple of e-mails in here. Tabitha says, "I think Commander's Waddle's punishment was appropriate. It was obvious on the "Dateline" interview last night that this horrible accident will haunt this man for the rest of his life."

D. Siles says, "If nine Americans had been killed by the reckless behavior of any foreign navy, you would be bombing cities. It's time you Americans woke up to the fact that there is a world outside your borders."

Darren is on the phone from California.

Darren, go ahead. Darren, are you there?

CALLER: Yeah, hi, Bobbie. I'd like to say I'm personally offended by the actions that took place, and I'd like to personally apologize to the Japanese people and the Japanese government. The Navy doesn't necessarily represent what American people think. If that would have been you or me driving any kind of vessel and resulted in the deaths of nine people, we would be in jail and not given a $35,000 a year bonus for the rest of our lives for the actions that we did. I find that offensive.

BATTISTA: Thanks, I appreciate it, Darren.

Doug Johnston, I think that's sort of the crux of the misunderstanding and the confusion among the audience is that military law and civilian law are different, and they are approached differently. Correct?

JOHNSTON: They are indeed.

BATTISTA: Well, if we could put a little context on that.

FIDELL: Want to develop that a little bit?

PIETROPAOLI: Having been subject to both military law and civilian law, let me just say I sympathize 100 percent with Darren's comments. I understand why people would think -- if you look at Commander Waddle's retirement pay as some sort of reward which he's going home with, then certainly you would be confused. It's important to understand that that was retirement pay for the 19 years, 6 months, 20 some days during which he served this nation selflessly, effectively indeed very, very well from all reports. He had a tragic loss of situational awareness in the control room that day aboard the Greeneville. And as Tabitha mentioned in her e-mail, he's clearly going to be spending the rest of his life dealing with that. The fact that he will be allowed to keep his military retirement pay is the pay that he earned for the last 19 years and 8 months, not for what happened onboard the Greeneville that day.

FIDELL: Let me say...

PIETROPAOLI: And I disagree that any person involved in an auto accident or any other kind of a vessel that resulted in death -- and I think Mr. Fidell would have to agree with this -- there are accidents every day all over this nation tragically that take lives that do not result in criminal charges against anyone.

FIDELL: Let me just intervene. Admiral Pietropaoli has been a very eloquent spokesman for the service point of view, and there's much wisdom in what he says. People are going to be studying the Greeneville case for decades. They're going to be studying it at the naval academy and the other service academies. Lawyers are going to have -- the legal philosophers are going to have their work cut out for them in thinking about this.

We should think about what would happen in comparable cases or in similar kinds of situations in the future. Suppose, for example, through negligence, a submarine got in a collision and sustained $50 million worth of damage, which seems like a big number, but that's an entirely possible number. Or the submarine sank but there was no loss of life. What would be the outcome there? The same thing? I don't know. But I think everybody concerned with this situation, the tragedy for everybody in this picture, we all ought to be thinking about how the system of justice is administered, whether there's public confidence in the fair administration of justice both here and in Japan.

PIETROPAOLI: Bobbie, if I could...

BATTISTA: You know what? Let me ask one more question to Colonel Maginnis before we're out of time because we haven't addressed it too much. And that is about the idea of having civilians on board. We know the Navy is going to continue with that, but do you think some changes will or should be made? I mean, are they a distraction?

MAGINNIS: Well, they were apparently. According to the board of inquiry, there was a distraction in the control room, Bobbie. And we need to continue these programs. They are vital to educate civilians that really don't understand how dangerous and how we operate on the seas around the world and on the land.

But at the same time, we have to make sure that this does not disrupt safe operations. We don't take shortcuts, as this commander apparently did, that ultimately, one chance out of a million maybe, but it resulted in the deaths of nine people and the disgrace of this great nation. This sort of incident could potentially take place elsewhere, so we have to take every precaution, if at all possible.

There were mistakes made. Those mistakes I'm sure the Navy is looking at. There will be a price, as the admiral indicated. We are going to pay the Japanese families, but American public needs to understand, these incidents bring it clearly, like F-18 incident in Kuwait, or some of the incidents in Kosovo, clearly bring it to the forefront that this is dangerous stuff we are doing around it world, and we're doing it in your name.

BATTISTA: We are completely out of time. We thank all of you for joining us very much. Eugene Fidell, Doug Johnston, Colonel Robert Maginnis and Rear Admiral Stephen Pietropaoli, thank you all very much for joining us.

In a moment: what is the Supreme Court thinking? It says police can haul you off to jail for even the most minor offense, like not wearing a seatbelt. We'll tell you what happened to a Texas woman, and you can tell us if you think police went too far. We'll be back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ANDY TAYLOR, ATTORNEY FOR TEXAS: In fact, there is a very significant interest on behalf of all the states to ensure that toddlers traveling in a automobiles are properly seat-belted, so that they may avoid unnecessary injury or tragic death.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

GAIL ATWATER, ARRESTED MOTHER: The whole case is about whether a police officer can intrude that much into your life. The Fourth Amendment is written to protect you from that.

(END VIDEO CLIP)

BATTISTA: Well, you don't seem to have to do much to get arrested and carted off these days. The Supreme Court says it can happen for even the most minor of offenses. CNN's senior Washington correspondent Charles Bierbauer joins us to straighten this out for us -- Charles.

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Well, Bobbie, you do have to break the law, and the law in Texas says you have to be wearing a seatbelt. And in the case of Gail Atwater, it meant her two kids who were riding in her pickup truck also had to be wearing a seatbeat.

Just a quick background on the case: one the kids dropped a toy out of a car window, and so, Gail Atwater was cruising along looking for it, told the kids they can take their seatbelts off and try to find it. That's when she got pulled over, and she was fined. Well, or subject to a fine of $50, or so she thought. But the arresting officer not only stopped her, pulled her over, put her in handcuffs, took her off to jail. And there she sat for about an hour before she was released before coming before a magistrate.

And the question before the Supreme Court was, doesn't the Fourth Amendment protect you against unwarranted search and seizure? Well, it does, except the court in this case says this doesn't qualify.

Two quotes from the opinion handed down today, a narrow 5 to 4 opinion. Justice David Souter writing for the majority, said that what Gail Atwater faced were "merely gratuitous humiliations imposed by a police officer exercising extremely poor judgment." All that seeming to favor Ms. Atwater, but then he goes on to say, "not so extraordinary as to violate the Fourth Amendment," saying that law officers have to be able to make judgments on the scene and have to be able to deal with things in a very spontaneous fashion.

To which Justice Sandra Day O'Connor, writing for the four justices in dissent said, "this is a pointless indignity" that Ms. Atwater suffered down in Texas, and she warned that "such unbounded discretion for the police carries with it grave potential for abuse."

So, basically, Bobbie, I think this was an opinion that most people weren't particularly happy with, that on the surface said, was this really necessary, but in the opinion of five justices, the law is the law, and Gail Atwater broke it.

BATTISTA: One question, Charles: how does this affect state laws that treat these situations differently? In some states, you know, you can arrest somebody for these sorts of minor violations, and other states you cannot, you are protected against that.

BIERBAUER: Well, this was a state law. This was a Texas state law, a Texas statute that was in question here. The question is whether the Fourth Amendment is an overriding principle that precludes what Gail Atwater was subjected to, and the court said no.

So, I think that if you have a state law that says you cannot arrest someone, that that ought to be pretty straightforward. That was not challenged here. Nor was there any question as to probably cause here. There was probably cause. She has broken the law, and that's what the officer judged in this particular case, Bobbie.

BATTISTA: All right, Charles Bierbauer thank you very much.

How can this be constitutional? It does seem a little bit fuzzy, so let's talk with constitutional scholar Bruce Fein. He is a columnist for "The Washington Times," and served as associate deputy attorney general during the Reagan administration. Hi, Bruce.

BRUCE FEIN, CONSTITUTIONAL SCHOLAR: How are you today.

BATTISTA: Good, thanks. Also with us, Pamela Hayes, a criminal defense attorney and former prosecutor. Pamela, good to see you.

PAMELA HAYES, CRIMINAL DEFENSE ATTORNEY: Good to be here.

BATTISTA: So, I guess my first reaction to this is, you know, that it would violate -- you know, one of the justices said that the constitution does not protect you from a police officer who just happens to be a jerk, but I guess I thought maybe it did, the Fourth Amendment. FEIN: Well, I don't think that characterization of the police officer is a fair one. In this case, the Fourth Amendment provides that unreasonable seizures or detentions are unconstitutional. Was it so unreasonable when you have a mother -- and this wasn't the first time that she had been stopped, although there seemed to have been some mixup in an earlier occasion, although she conceded that she was driving the children, they were ages three and five, in a way that was unsafe.

He sees her in violation of the seatbelt law that prohibited her from herself driving unbelted, and she had these two young children in the front seat unbelted. That's rather horrifying. Anybody who's had children knows the possibility that they could die because of a car accident is quite frightening.

And he then exercised his judgment in this case to make an arrest. Now, admittedly, it was humiliating, but an arrest is intended to provide some deterrence. I know many folks who have walked into traffic court that they were speeding the first time in their lives, 75, 80 miles an hour, and they were thankful that they were cited and remembered that violation in the future so it wouldn't be repeated.

These were folks who had a clean background. And in this case, the custodial arrest that lasted for no more than an hour -- she ultimately did plead guilty, or no contender, which is the same. She didn't contest that she was in violation. Doesn't seem to be unreasonable, indeed, in my view if the officer said, oh, well, it's not so bad to endanger your children, tree or five years old, please don't do it again. And here, by the way, pay a fine of $10, which is what it takes to get a Big Mac hamburger and Coke. And I think that would be shocking.

BATTISTA: I know, but I think Pamela, that a lot of people worry about the potential for abuse here.

HAYES: It is the potential for abuse that is of great concern here. What happens when they could arrest you for perhaps jaywalking? Or they could arrest you for loitering? Say, you throw a piece of paper and it doesn't land in the basket, and you have a personality of the particular officer who will take it to the extreme.

It puts his life in jeopardy; it causes all kinds of problems. The whole time this woman was in jail, they had to kick other -- I'm sure they had to find some type of care for the children. You know, it's exasperating, that type of kid that we don't have. It's a problem, because it's not so much that it's this particular case; it's the abuse that can follow from it.

The situations where we have a case with everybody just going to go to the extreme and say, listen, you may not have to go to jail for this, but we'll just going to lock you up anyway, in the meantime. I think really is an abuse of discretion and it is, in fact, what the Fourth Amendment is supposed to protect us against.

FEIN: Well, I think the answer to that, is the law is a matter of degree, and you have hypothesized cases that the court simply didn't address. We don't have a...

(CROSSTALK)

HAYES: Now that we have a precedent that says, it's whatever case they want to consider and minor infraction.

BATTISTA: I'm guessing this will come up again.

FEIN: I don't think have read the case carefully.

(CROSSTALK)

BATTISTA : I have to get a break quickly, and then we will go to the audience with their opinion on this. Back in a moment.

(COMMERCIAL BREAK)

BATTISTA : We are back; a little audience reaction. John, go ahead.

JOHN: Yes, I just wanted to say that the bottom line here is, I think she broke the law, but the officer did not use good judgment. My wife back at home, she rips the tag off the mattress or off the pillows, and hey, we don't get arrested for that. You have to use common sense; we have good police around us, I know.

BATTISTA : All right, Vickie on the phone from Texas.

CALLER: Well, my son is a police officer and I think the officer is getting a bad rap. I cannot believe that the officer just put handcuffs on the lady for no reason at all, and took her away. This has been a law in Texas for a long time. People here know it, and they need to protect their families, themselves, and their friends, and I do not believe that her rights were violated, and I think the officer did his job.

BATTISTA: An e-mail from Brian in California says:

"The specifics of this woman's case, whether or not she deserved to go to jail, are irrelevant. The Supreme Court simply held that the police can send you to jail for minor traffic violations without qualifications such as suspend license or child endangerment. This worries me."

Is that right, Bruce?

FEIN: I don't think that extremist interpretation is proper. The court has often said they don't decided cases on the basis of hypotheticals that a fevered imagination can conceive, because the law would crumble as a result. In this case, the court asked the attorney of the defendant here, whether there were these instances or possibilities that these abuses that have been broached here would occur.

He came up with one instance in the last 50 years where, on the Metro in Washington, D.C., there had been a short arrest of someone for eating french fries, because the Metro authorities here wanted to have an immaculate transportation quality. But that seems to me far short of an abuse.

If abuses occur, if they're targeted at minorities or others, that's going to a violation of the 14th Amendment, and I think it's simply wrong to extrapolate from this narrow holding into some license to go ahead and have police exercise arbitrary discretion and arrest anybody at whim without any constitutional restraint.

BATTISTA: Pam, we were talking about this during the break: when exactly does unreasonable kick in under the 4th Amendment?

HAYES: Unreasonable is subject to interpretation. You have the police officer and he has to make a decision and it's up to him to decide whether or not it's unreasonable to arrest somebody, put them in handcuffs, when the biggest penalty they will get is a fine. They're never going to have to undergo any time of jail term.

So, if you see that you are not going to have to go to jail, one would suffice to think, give them a warning. Give them a ticket. Take the car away. Don't let them drive without the seat belt, but don't put them into the jail. Bobbie, it's one thing I think we need to explain to the audience.

This case is not a result of a criminal conviction. What happened here is the woman sued the city for false arrest and unlawful arrest and a violation of her constitutional rights. So, she wasn't a defendant; she was a plaintiff in the case, where she was trying to get money back from the aggravation that the police had put her through. What Justice Souter said in his opinion, was that listen, you can't sue the city because they haven't done nothing wrong. We think in fact, that it's OK to arrest people for minor violations. And that's how we got here and I think that's very important for the audience to understand...

FEIN: She was not -- there was no claim of a false arrest. Indeed, this lady, before she brought the lawsuit, pled the equivalent of guilty to the violation. She did not contest she had violated the law.

HAYES: No, Bruce. That's not what the case is about. The case -- she sued the town. She sued the sheriff and she sued the town for violation of her civil rights, and the underlying offense was a false arrest or something like that.

FEIN: No, it wasn't a false arrest! She simply claimed that the arrest was too severe in relation to the penalty of a fine. She didn't claim it was false. She conceded that she violated the law.

HAYES: That's not what a false arrest is, OK?

BATTISTA: I have go to another break. Quickly, a comment from Chad, question.

CHAD: Ever since the Civil War, our country has been trying to move away from discrimination. I just don't understand why the Supreme Court, by passing this law, you have left it to the discretion of the police officer on whether or not they get to choose who they want to take to jail and who not, and that way, it's opening the issue of discrimination once again. I don't understand why the Supreme Court would have done this.

BATTISTA: We have to take break. Back in a moment.

(COMMERCIAL BREAK)

BATTISTA: Let me take a phone call quickly from Mike in Alabama. Mike, you are a police officer?

MIKE: Retired police officer.

BATTISTA: Go ahead. Comment.

MIKE: Yeah, I think this sets a dangerous precedent. All across this country, the requirement for a lot of departments for a police officer is a GED and a pulse, and they have always had discretion on when to make arrests for misdemeanors and felonies. But to take an infraction and now make that an arrestable offense in an officer's discretion? This is going to be abused by police officers, and it will be the poor that wind up paying the price for this.

BATTISTA: Mike, thanks. Bruce, do you want to address that?

FEIN: Yes. It's clear from the Supreme Court's opinions that remain undisturbed that any law enforcement discretion that pivots on the race, income, nationality, ethnicity, religion, gender of the individual would be a flagrant violation of the Equal Protection Clause and expose that police officers to damages.

BATTISTA: But that's assuming the person files a complaint and takes it to that lengthy process to get it through the courts?

FEIN: Correct.

BATTISTA: OK. Our final e-mail addresses from Jack in Florida, kind of addresses both of our topics today. Jack says: "Something is wrong when a woman in Texas is arrested, cuffed and taken to jail for her child being out of a seatbelt, and a captain of a naval warship walks after killing nine people in an act of gross negligence." Something to kind of chew on there.

Bruce Fein, thanks very much for being with us. Pamela Hayes, good to see you as always. And we are out of time. We will see you again tomorrow for more TALKBACK LIVE. Join us then. Thank you.

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