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Will The Defense Of Following Orders Work In The Abu Ghraib Prison Cases?

Aired May 19, 2004 - 13:30   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.


KYRA PHILLIPS, CNN ANCHOR: In the latest developments, presidential candidates John Kerry and Ralph Nader plan to meet less than an hour from now in Washington. Some Democrats say votes for Nader could cost Kerry the election. Nader's people say there's no talk of a draw on the agenda just a decision of the issues.
Vice President Dick Cheney tells graduates at the Coast Guard Academy the United States is not running away from it's responsibilities in Iraq. In a commencement address today, Cheney called Iraq the central front in the fight against terrorism.

In this country, Fort Stewart, Georgia is the site of another Iraq-related court-martial. Staff Sargent Camilo Mejia failed to return to Iraq saying that he won't fight in what he considers a war for oil and objects to prisoner mistreatment. If convicted, he faces up to a year confinement.

"I was just following orders." Five simple words, sometimes used by soldiers as a defense. CNN senior legal analyst Jeffrey Toobin reports that idea has been rejected in court proceedings all the way back to World War II.

(BEGIN VIDEOTAPE)

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST (voice-over): The most notorious the invocation of the "I was just following orders" defense came after World War II. And while the charges are in no way comparable to the charges at Abu Ghraib, the line of defense is.

Many German generals and war leaders said the concentration camps and the extermination of the Jews were not their idea. They said they had to follow Hitler's orders or they themselves would have been executed.

COMMANDER MARY HALL, RETIRED JAG: The defense was rejected in Nuremberg primarily because the acts were so horrific that the Nazis who were in the tribunal were charged with that no person of ordinary sense and understanding could have possibly thought that those orders to commit those acts were anything other than illegal and just totally immoral.

TOOBIN: The Vietnam War once again put the "following orders" defense to the test. The My Lai massacre. On March 16, 1968, Lieutenant William Calley of Charlie Company led a platoon into a village called My Lai and wiped out everyone there -- as many as 500 men, women and children.

He testified that he did fire at civilians who were cowering in a ditch, but he said, "I felt then, and I still do, that I acted as directed. I carried out my orders." The military jury rejected the defense, found him guilty and sentenced him to life in prison.

HALL: Lieutenant Calley's conviction was upheld by the military appeals court. And it was President Nixon who mitigated the punishment from life sentence down to three-and-a-half years of house arrest, in essence, changing not just the duration but the nature of the punishment, as well.

TOOBIN: But the story didn't end there. The man Calley alleged gave the order, Captain Ernest Medina, also faced murder charges. He said he never ordered the murder of any unarmed civilians, and the jury found him not guilty.

In the Iran-Contra case, Oliver North said he was ordered to cover up the arms-for-hostages deal, and the jury convicted him of some charges, but the case was overturned on appeal.

Since My Lai, the military has tried to clarify the rules. The current military field manual says it is no defense for a soldier to say he was just following orders unless -- and it's a big unless -- unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful.

What do those words mean in the real world? We'll start to find out at tomorrow's trial in Baghdad.

Jeffrey Toobin, CNN, New York.

(END VIDEOTAPE)

PHILLIPS: Back to the 9/11 hearings. Some of the most emotional and gripping testimony today came from the person who was at the helm of the city on 9/11. Rudy Giuliani in his own words recounted what happened that day and the split-second decisions that would forever change the lives of so many.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, FRM. NYC MAYOR: The desk started to shake. And I heard next Chief Esposito, who was the uniformed head of the police department -- I am sure it was his voice. I heard him say, "The tower is down, the tower has come down."

And my first thought was, one of the radio towers from the top of the World Trade Center had come down. I did not conceive of the entire tower coming down.

But as he was saying that, I could see the desk shaking and could I see people in the outer office going under desks. And then all of a sudden, I could see outside a tremendous amount of debris. It first felt like an earthquake and then it looked like a nuclear -- a nuclear cloud. So we realized very shortly that we were in danger in the building, that the building could come down. It had been damaged. It was shaking. So the police commissioner and I and the deputy police commissioner, we jointly decided we had to try to get everyone out of the building.

So we went downstairs into the basement. We tried two or three exits could not get out. I don't know if they were locked or blocked. We couldn't get out. We went back up to the main floor to see if we could go out the main entrance.

But at that point, things were worse. There had been more damage done and it was blocked. And then two gentleman -- I believe janitors, came up to us and said, there's a way out through the basement through 100 Church Street. I knew 100 Church Street because that's where the law department was located. We agreed that we would go with him.

We all went downstairs. We walked through the hallway. We got to the door he had selected, and he opened the door and there was sort a sigh of relief. And when we walked outside, we were in the lobby of 100 Church Street. And then we wondered if we hadn't gone from bad to worse because when you looked outside at 100 Church Street what you saw again was a tremendous cloud, debris flying through the street and people being injured.

And one of our -- one of our deputy commissioner and one of my former security people were brought in at that point injured, bloodied and injured, and obviously, in a state of shock, from what had happened to them, having been hit by debris.

So the commissioner and I had to make a quick decision. Do we remain in the building and use that as a place to hold a press conference to give people information, because there was some press right there. And do we remain here and operate here for a while until the cloud passes, or do we go outside?

The choice we made was to go outside. The choice we made to go outside was because we felt we had a core of New York City government together at this point. The police commissioner, the head of energy services, three of the four deputy mayors, the commissioner of public health, and that if we went outside, we had a better chance of more people surviving.

(END VIDEO CLIP)

PHILLIPS: Giuliani told the commissioners they should be focusing on preventing future attacks, not assigning blame.

Other news around the world now, conflicting stories emerging after a violent day in the Middle East. A Palestinian official says 24 Palestinians, many of them children were killed when an Israeli helicopter fired on demonstrates in Southern Gaza. Israel says it fired a missile in an open area, not on demonstrate are. But it acknowledges the casualties could have resulted from Israeli tank fire. India's former finance minister is set to become prime minister, ending hopes Sonia Gandhi would restore the Gandhi dynasty. Today, India's Congress unanimously elected Manmohan Singh to lead the world's largest democracy. Gandhi threw her support behind Singh after she surprisingly withdrew her bid.

A scare for British Prime Minister Tony Blair. A mysterious purple powder thrown at Blair during his remarks before the House of Commons today. The powder was later identified as corn flour. A fathers rights group has claimed responsibility.

Too much unwanted summit on your computer? Well, a new rule might clean things up. How it would work and why it might not, coming up.

Some airfares are going up, some going down. Which airlines to look for, coming up in biz.

And are the images getting too disturbing out of Iraq? Share your thoughts with us. Send a quick e-mail to livefrom@CNN.com. We're going to debate it next hour, read some of your thoughts. We'll be back, right after this.

(COMMERCIAL BREAK)

PHILLIPS: This just in to CNN, and this is according to the Associated Press. We are being told Iraqis are on a videotape -- this was distributed by the AP. At least 20 people were killed, another five were critically wounded earlier today when planes fired on a wedding celebration in an Iraqi village in the desert near the Syrian border. This is coming to us via the Associated Press. We're told the Pentagon is investigating the report.

Here's a look at the video right now. One man on the video said that all homes in this small village were destroyed in the attack, which happened about 3:00 a.m. on Wednesday, not sure what type of planes came through this area. We just are being told, according to the AP, that these were planes that came through, causing this destruction. Video showed at least a dozen bodies, including small children, wrapped in blankets, as you can see here, for burial, as they were unloaded from a truck. Men with the picks and shovels, as you can see, were digging a series of graves in that video.

Once again, video being distributed by the Associated Press, talking about planes firing on a wedding celebration in an Iraqi village. We are working the story, trying to get more information from the Pentagon and the Associated Press.

We're going to take a quick break. We'll be right back.

(COMMERCIAL BREAK)

PHILLIPS: Can the brain be wired to kill? that's one of the biggest questions for psychologists, who are trying to understand the behavior of serial killers.

CNN's Anderson Cooper takes a look at this in his series "Unlocking the Secret of the Brain."

(BEGIN VIDEOTAPE)

ANDERSON COOPER, CNN ANCHOR (voice-over): Chances are you'll recognize some of these men, and know what they have in common. They're all serial killers. But what you might not know is that according to Court TV, they each suffered head injuries when they were young. Leonard Lake, David Berkowitz, AKA "Son of Sam," Kenneth Bianci, John Wayne Gacy, Carl Panzram. Scientists now believe head injuries could contribute to a murderer's sadistic behavior. While there's no hard evidence linking head injuries to the desire to kill, there is some evidence suggests that brain chemistry and structure could be a factor. University of Southern California psychologists have compared brain scans of nonviolent subjects to those of murderers. They say there appears to be a clear difference between the two.

Look at a murderer's brain. Now look at a normal brain. The scientists discovered that many of the killers had lower activity in the prefrontal cortex, the area involved in planning, reasoning, and impulse control. They also determined the killers had higher than normal activity in a deeper, more primitive part of the brain, the subcortex, where the brain may stimulate aggressive behavior. Their conclusion -- there is a connection between the way a brain functions, and an individual's predisposition towards violence.

Still, psychologists say that brain abnormality alone is not enough to make a person violent. They cite other influences, child abuse, mental illness, genetics. The next step, researchers say, should be to track the relationship between brain function, and violent behavior from an early stage of development.

Anderson Cooper, CNN, New York.

(END VIDEOTAPE)

PHILLIPS: And tonight, Anderson Cooper will continue his series with a look at the differences between madness and genius. That's at 7:00 Eastern, 4:00 Pacific.

(COMMERCIAL BREAK)

(BUSINESS UPDATE)

PHILLIPS: Sexually explicit e-mail lands unwanted on millions of personal computers every day. A lot of it so gross you feel like taking a shower just reading the subject line. What's being done to stop it? CNN's technology correspondent Daniel Sieberg here to tell us.

DANIEL SIEBERG, CNN TECHNOLOGY CORRESPONDENT: Yes, other than taking a shower, the FTC is calling it like a brown paper wrapper for your e-mail. Starting today, spammers must include the words "sexually explicit" in the subject line of any e-mail they send out that contain racy content. We have an example of what a message might look like when it comes into your inbox. You can see here in the subject line "sexually explicit," and the title would follow right after it. As well, this gap that you can see at the top of the message, that's also part of the FTC regulations, because they're saying if a child, for example, inadvertently opens the message, they don't want to see the content, the photos and so on. There is meant to be gap as well.

Now all of this under the Canned Spam Act, which was signed into law late last year, took effect this year. It does require spam to be labeled in some way. It must -- spam must include an opt-out option for people if they don't want to receive spam messages, as well it must include a sender's physical address, just like a regular company, and it bans deceptive subject line, meaning that you can't try and promise one thing to somebody in the subject line and then have something else totally different in the actual body of the message.

Now we talked to a few people about the idea of labeling messages with "sexually explicit," and some say it's a good idea, because it will perhaps deter kids from looking at it, or at least allow parents to know what could be in a spam message.

But you know, others have said, well, if it says sexually explicit, that might actually steer some people to it, if that's, you know, something that you want to look at or something you're interested in.

On the other hand, it could also help e-mail filters, because you can program in those words and try and filter out some of the messages. The penalties, if you violate this sexually explicit labeling, or anything under the canned spam act, is up to five years in prison, as much as $11,000 per violation. The FTC could also shut down any company that's guilty of that. The trick of course remains trying to track down these spammers, and generally, Kyra, this is not going to make that a whole lot easier, even though it's labeling it for people.

PHILLIPS: I've seen police departments start unit just to focus on this. Big business.

SIEBERG: Right. You know, you can change the label to "annoying" in the subject line at the very least. I think that's what I think a lot of people would agree with.

PHILLIPS: "Pervert." All right, thanks, Daniel.

(BUSINESS UPDATE)

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com


Aired May 19, 2004 - 13:30   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KYRA PHILLIPS, CNN ANCHOR: In the latest developments, presidential candidates John Kerry and Ralph Nader plan to meet less than an hour from now in Washington. Some Democrats say votes for Nader could cost Kerry the election. Nader's people say there's no talk of a draw on the agenda just a decision of the issues.
Vice President Dick Cheney tells graduates at the Coast Guard Academy the United States is not running away from it's responsibilities in Iraq. In a commencement address today, Cheney called Iraq the central front in the fight against terrorism.

In this country, Fort Stewart, Georgia is the site of another Iraq-related court-martial. Staff Sargent Camilo Mejia failed to return to Iraq saying that he won't fight in what he considers a war for oil and objects to prisoner mistreatment. If convicted, he faces up to a year confinement.

"I was just following orders." Five simple words, sometimes used by soldiers as a defense. CNN senior legal analyst Jeffrey Toobin reports that idea has been rejected in court proceedings all the way back to World War II.

(BEGIN VIDEOTAPE)

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST (voice-over): The most notorious the invocation of the "I was just following orders" defense came after World War II. And while the charges are in no way comparable to the charges at Abu Ghraib, the line of defense is.

Many German generals and war leaders said the concentration camps and the extermination of the Jews were not their idea. They said they had to follow Hitler's orders or they themselves would have been executed.

COMMANDER MARY HALL, RETIRED JAG: The defense was rejected in Nuremberg primarily because the acts were so horrific that the Nazis who were in the tribunal were charged with that no person of ordinary sense and understanding could have possibly thought that those orders to commit those acts were anything other than illegal and just totally immoral.

TOOBIN: The Vietnam War once again put the "following orders" defense to the test. The My Lai massacre. On March 16, 1968, Lieutenant William Calley of Charlie Company led a platoon into a village called My Lai and wiped out everyone there -- as many as 500 men, women and children.

He testified that he did fire at civilians who were cowering in a ditch, but he said, "I felt then, and I still do, that I acted as directed. I carried out my orders." The military jury rejected the defense, found him guilty and sentenced him to life in prison.

HALL: Lieutenant Calley's conviction was upheld by the military appeals court. And it was President Nixon who mitigated the punishment from life sentence down to three-and-a-half years of house arrest, in essence, changing not just the duration but the nature of the punishment, as well.

TOOBIN: But the story didn't end there. The man Calley alleged gave the order, Captain Ernest Medina, also faced murder charges. He said he never ordered the murder of any unarmed civilians, and the jury found him not guilty.

In the Iran-Contra case, Oliver North said he was ordered to cover up the arms-for-hostages deal, and the jury convicted him of some charges, but the case was overturned on appeal.

Since My Lai, the military has tried to clarify the rules. The current military field manual says it is no defense for a soldier to say he was just following orders unless -- and it's a big unless -- unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful.

What do those words mean in the real world? We'll start to find out at tomorrow's trial in Baghdad.

Jeffrey Toobin, CNN, New York.

(END VIDEOTAPE)

PHILLIPS: Back to the 9/11 hearings. Some of the most emotional and gripping testimony today came from the person who was at the helm of the city on 9/11. Rudy Giuliani in his own words recounted what happened that day and the split-second decisions that would forever change the lives of so many.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, FRM. NYC MAYOR: The desk started to shake. And I heard next Chief Esposito, who was the uniformed head of the police department -- I am sure it was his voice. I heard him say, "The tower is down, the tower has come down."

And my first thought was, one of the radio towers from the top of the World Trade Center had come down. I did not conceive of the entire tower coming down.

But as he was saying that, I could see the desk shaking and could I see people in the outer office going under desks. And then all of a sudden, I could see outside a tremendous amount of debris. It first felt like an earthquake and then it looked like a nuclear -- a nuclear cloud. So we realized very shortly that we were in danger in the building, that the building could come down. It had been damaged. It was shaking. So the police commissioner and I and the deputy police commissioner, we jointly decided we had to try to get everyone out of the building.

So we went downstairs into the basement. We tried two or three exits could not get out. I don't know if they were locked or blocked. We couldn't get out. We went back up to the main floor to see if we could go out the main entrance.

But at that point, things were worse. There had been more damage done and it was blocked. And then two gentleman -- I believe janitors, came up to us and said, there's a way out through the basement through 100 Church Street. I knew 100 Church Street because that's where the law department was located. We agreed that we would go with him.

We all went downstairs. We walked through the hallway. We got to the door he had selected, and he opened the door and there was sort a sigh of relief. And when we walked outside, we were in the lobby of 100 Church Street. And then we wondered if we hadn't gone from bad to worse because when you looked outside at 100 Church Street what you saw again was a tremendous cloud, debris flying through the street and people being injured.

And one of our -- one of our deputy commissioner and one of my former security people were brought in at that point injured, bloodied and injured, and obviously, in a state of shock, from what had happened to them, having been hit by debris.

So the commissioner and I had to make a quick decision. Do we remain in the building and use that as a place to hold a press conference to give people information, because there was some press right there. And do we remain here and operate here for a while until the cloud passes, or do we go outside?

The choice we made was to go outside. The choice we made to go outside was because we felt we had a core of New York City government together at this point. The police commissioner, the head of energy services, three of the four deputy mayors, the commissioner of public health, and that if we went outside, we had a better chance of more people surviving.

(END VIDEO CLIP)

PHILLIPS: Giuliani told the commissioners they should be focusing on preventing future attacks, not assigning blame.

Other news around the world now, conflicting stories emerging after a violent day in the Middle East. A Palestinian official says 24 Palestinians, many of them children were killed when an Israeli helicopter fired on demonstrates in Southern Gaza. Israel says it fired a missile in an open area, not on demonstrate are. But it acknowledges the casualties could have resulted from Israeli tank fire. India's former finance minister is set to become prime minister, ending hopes Sonia Gandhi would restore the Gandhi dynasty. Today, India's Congress unanimously elected Manmohan Singh to lead the world's largest democracy. Gandhi threw her support behind Singh after she surprisingly withdrew her bid.

A scare for British Prime Minister Tony Blair. A mysterious purple powder thrown at Blair during his remarks before the House of Commons today. The powder was later identified as corn flour. A fathers rights group has claimed responsibility.

Too much unwanted summit on your computer? Well, a new rule might clean things up. How it would work and why it might not, coming up.

Some airfares are going up, some going down. Which airlines to look for, coming up in biz.

And are the images getting too disturbing out of Iraq? Share your thoughts with us. Send a quick e-mail to livefrom@CNN.com. We're going to debate it next hour, read some of your thoughts. We'll be back, right after this.

(COMMERCIAL BREAK)

PHILLIPS: This just in to CNN, and this is according to the Associated Press. We are being told Iraqis are on a videotape -- this was distributed by the AP. At least 20 people were killed, another five were critically wounded earlier today when planes fired on a wedding celebration in an Iraqi village in the desert near the Syrian border. This is coming to us via the Associated Press. We're told the Pentagon is investigating the report.

Here's a look at the video right now. One man on the video said that all homes in this small village were destroyed in the attack, which happened about 3:00 a.m. on Wednesday, not sure what type of planes came through this area. We just are being told, according to the AP, that these were planes that came through, causing this destruction. Video showed at least a dozen bodies, including small children, wrapped in blankets, as you can see here, for burial, as they were unloaded from a truck. Men with the picks and shovels, as you can see, were digging a series of graves in that video.

Once again, video being distributed by the Associated Press, talking about planes firing on a wedding celebration in an Iraqi village. We are working the story, trying to get more information from the Pentagon and the Associated Press.

We're going to take a quick break. We'll be right back.

(COMMERCIAL BREAK)

PHILLIPS: Can the brain be wired to kill? that's one of the biggest questions for psychologists, who are trying to understand the behavior of serial killers.

CNN's Anderson Cooper takes a look at this in his series "Unlocking the Secret of the Brain."

(BEGIN VIDEOTAPE)

ANDERSON COOPER, CNN ANCHOR (voice-over): Chances are you'll recognize some of these men, and know what they have in common. They're all serial killers. But what you might not know is that according to Court TV, they each suffered head injuries when they were young. Leonard Lake, David Berkowitz, AKA "Son of Sam," Kenneth Bianci, John Wayne Gacy, Carl Panzram. Scientists now believe head injuries could contribute to a murderer's sadistic behavior. While there's no hard evidence linking head injuries to the desire to kill, there is some evidence suggests that brain chemistry and structure could be a factor. University of Southern California psychologists have compared brain scans of nonviolent subjects to those of murderers. They say there appears to be a clear difference between the two.

Look at a murderer's brain. Now look at a normal brain. The scientists discovered that many of the killers had lower activity in the prefrontal cortex, the area involved in planning, reasoning, and impulse control. They also determined the killers had higher than normal activity in a deeper, more primitive part of the brain, the subcortex, where the brain may stimulate aggressive behavior. Their conclusion -- there is a connection between the way a brain functions, and an individual's predisposition towards violence.

Still, psychologists say that brain abnormality alone is not enough to make a person violent. They cite other influences, child abuse, mental illness, genetics. The next step, researchers say, should be to track the relationship between brain function, and violent behavior from an early stage of development.

Anderson Cooper, CNN, New York.

(END VIDEOTAPE)

PHILLIPS: And tonight, Anderson Cooper will continue his series with a look at the differences between madness and genius. That's at 7:00 Eastern, 4:00 Pacific.

(COMMERCIAL BREAK)

(BUSINESS UPDATE)

PHILLIPS: Sexually explicit e-mail lands unwanted on millions of personal computers every day. A lot of it so gross you feel like taking a shower just reading the subject line. What's being done to stop it? CNN's technology correspondent Daniel Sieberg here to tell us.

DANIEL SIEBERG, CNN TECHNOLOGY CORRESPONDENT: Yes, other than taking a shower, the FTC is calling it like a brown paper wrapper for your e-mail. Starting today, spammers must include the words "sexually explicit" in the subject line of any e-mail they send out that contain racy content. We have an example of what a message might look like when it comes into your inbox. You can see here in the subject line "sexually explicit," and the title would follow right after it. As well, this gap that you can see at the top of the message, that's also part of the FTC regulations, because they're saying if a child, for example, inadvertently opens the message, they don't want to see the content, the photos and so on. There is meant to be gap as well.

Now all of this under the Canned Spam Act, which was signed into law late last year, took effect this year. It does require spam to be labeled in some way. It must -- spam must include an opt-out option for people if they don't want to receive spam messages, as well it must include a sender's physical address, just like a regular company, and it bans deceptive subject line, meaning that you can't try and promise one thing to somebody in the subject line and then have something else totally different in the actual body of the message.

Now we talked to a few people about the idea of labeling messages with "sexually explicit," and some say it's a good idea, because it will perhaps deter kids from looking at it, or at least allow parents to know what could be in a spam message.

But you know, others have said, well, if it says sexually explicit, that might actually steer some people to it, if that's, you know, something that you want to look at or something you're interested in.

On the other hand, it could also help e-mail filters, because you can program in those words and try and filter out some of the messages. The penalties, if you violate this sexually explicit labeling, or anything under the canned spam act, is up to five years in prison, as much as $11,000 per violation. The FTC could also shut down any company that's guilty of that. The trick of course remains trying to track down these spammers, and generally, Kyra, this is not going to make that a whole lot easier, even though it's labeling it for people.

PHILLIPS: I've seen police departments start unit just to focus on this. Big business.

SIEBERG: Right. You know, you can change the label to "annoying" in the subject line at the very least. I think that's what I think a lot of people would agree with.

PHILLIPS: "Pervert." All right, thanks, Daniel.

(BUSINESS UPDATE)

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com