GWEN IFILL: An NBC News crew was embedded with a different unit of Marines, and on Saturday followed them into a mosque in Fallujah. There they found insurgents killed or wounded in a battle that took place one day earlier. NBC recorded the encounter.
The tape in its entirety is graphic. We'll show you only a portion of it.
MARINE (Shown on screen): There are Marines in there?
MARINE: Yeah, they're on the far right, far right.
MARINE: Coming around the back.
MARINE: Hey, who's in here?
MARINE: Coming around.
MARINE: What the (expletive) are you doing in there?
MARINE: You almost got shot by tanks.
MARINE: Huh? Us? Yeah, yeah.
MARINE: You guys almost got shot up by tanks.
MARINE: (inaudible name) told us to come in here.
MARINE: The tanks did, yeah?
MARINE: Everybody said…telling their people to tell us to come in here.
MARINE: Yeah, we had two in there.
MARINE: Did you shoot them?
MARINE: Did they have any weapons on them?
MARINE: The same guys from yesterday?
MARINE: These are the ones from yesterday.
MARINE: These are the wounded they never picked up.
MARINE: He's (expletive) faking he's dead.
MARINE: Yeah, he's breathing.
MARINE: (gunshot) He's dead now.
MARINE: Hey, this one's still alive.
WOUNDED PERSON: (on screen) I have information. I have information.
MARINE: This guy says he has information.
MARINE: These are the guys trying to get out of here.
MARINE: Yeah, these are the guys they had yesterday in here.
MARINE: What happened?
MARINE: Yeah, sure buddy.
MARINE: They were here yesterday; I was in here.
MARINE: These were the guys they captured.
GWEN IFILL: The U.S. Military says a Marine in the same unit was killed the day before by a booby trap on the body of a dead militant. Ray Suarez picks up the story.
RAY SUAREZ: What ramifications will these pictures have on the U.S. Military in Iraq and in the Arab world? For that we get three views: Lt. Col. Raymond Liddy of the Marine Corps reserves-- he was with the marines who fought their way to Baghdad last year, he is now a lawyer in private practice; Eugene Fidell, president of the National Institute of Military Justice and a former lawyer in the U.S. Coast Guard; and Juan Cole, professor of Middle East history at the University of Michigan.
And Lt. Col. Liddy, maybe you could tell us what marines are trained to do in a situation like the one we just saw.
LT. COL. RAYMOND LIDDY: Military operations in urban terrain is the most dangerous type of warfare to conduct. It needs to be conducted in very extreme... with very extreme violence.
However, here when you're dealing in an asymmetric warfare environment-- by that I mean that there are no clear front lines and the enemy is... doesn't don uniforms and also doesn't abide by the laws or the conflict of law to the extent that they shoot from mosques, they booby trap bodies, they booby trap themselves, the marines are faced with a very difficult time in pressing forward in that type of an environment.
They are stressed. They are under enormous amount of strain and fire. And as they move forward from building to building and room to room, they need to look in and see if there is any non-combatants. This causes them to hesitate and gives the advantage to the enemy.
So here as they are pressing through, they have... they are faced with a split-second decision as to whether or not someone in front of them poses a threat. They need to act on that. That's where the... where they need to use their best judgment.
RAY SUAREZ: When they go into battle, a battle of this kind, and you talking about how dangerous and uncertain close urban warfare is, are they reminded of the rules of engagement that apply in every case?
LT. COL. RAYMOND LIDDY: They are. The marine Corps has trained these marines very well in urban combat. Nonetheless you have to deal with the difficulties of the friction of war here. Again, they are under a very violent, very dangerous situation. Each room poses a severe peril.
They can't approach it as you would approach urban combat in a normal, conventional manner in which case you can go ahead and attack a room or attack a building before really examining it. If you believe that or if you know... if you know that there is no noncombatants in the building.
However, here, you may have noncombatants And they need to temper that violence that they would otherwise bring to bear and go through each room looking in first. That exposes them to danger. That's very stressful for that individual marine.
RAY SUAREZ: In this case on the way in they discussed among themselves that they had been told that there were wounded combatants inside, given a specific number that were wounded yesterday and fighting around that mosque, does that form a kind of information that you work on the basis of when you go into a building like that?
LT. COL. RAYMOND LIDDY: It certainly does. But no intelligence is perfect. So you know that you have wounded combatants in there, but that doesn't tell you whether or not they're completely incapacitated.
Are they sitting there with an AK-47 in their lap? Are they sitting there with an AK-47 within reach? Are they sitting there next to a booby trapped body waiting to trip a booby trap and see if they can't take some Marines with them? These are all threats that those Marines face when going into that building.
RAY SUAREZ: Eugene Fidell you've seen the tape a couple of times now. Does what you see in that tape conform to the laws of war?
EUGENE FIDELL: It certainly is very problematic, Ray, because you have people who seemingly are either dead or wounded. You're not permitted to simply shoot the wounded people who are out of combat and are not in a position to present a threat to your side.
The question is going to be whether you could reasonably construe the events depicted in the tape. Tapes and photographs can present events in a false light. They can be misleading even if they're literally accurate.
The question I think is going to be is whether the suspect accused in this case-- we'll call the person a suspect for the moment-- can make a credible case for the defense of self-defense. We can get into this a little bit. But that I think is the battle line legally that's going to grow out of the firing line that is depicted in the tape.
RAY SUAREZ: The Geneva Conventions require that anybody who is out of combat must be treated humanely.
EUGENE FIDELL: That's correct.
RAY SUAREZ: How do you determine who is out of combat for the purposes of figuring out the legal case here?
EUGENE FIDELL: Well, these rules are intended to be construed in a common sense fashion because you don't have an attorney with every infantry platoon, with every company of Marines. So some deference is due to the people on the ground.
You have to remember-- and I think Col. Liddy is quite right to make this point-- the circumstances under which these Marines were operating are truly insane circumstances.
All bets were off obviously in this environment. Not to say that you can set the laws of war aside. But you're talking about situations in which bodies turn into explosive devices or in which a house of worship is turned into an ammunition dump or a firing point.
This kind of factual setting is the type of thing that would be taken into account in determining the reasonableness from an objective point of view of the conduct that's depicted in that videotape.
RAY SUAREZ: If this goes to trial, if it's found that there's a cause for a court martial here to further examine what happened in this incident, does the fact that these were not regular soldiers in an army with commanders and uniforms come into play as a mitigating factor on behalf of this young soldier?
EUGENE FIDELL: Well you would take into account, in trying to advance a defense of self-defense you would take into account all of the facts and circumstances. The fact that the people on the other side were not playing by any of the rules is one of those circumstances.
If you had a situation where any body on the street-- this is a city that sounds to me what Stalingrad must have looked like after the battle of Stalingrad-- where anybody on the street, any "body" on the street could prove to be the end of your own life. And that's not just for a second but persistently day in and day out, being fired at from every possible direction.
There's a lot I think that the defense will have to work with here in trying to make the defense of self-defense which as I say is I think where this is going to wind up focusing.
RAY SUAREZ: Well, Professor Cole, long before this gets into a courtroom it's going to play before various courts of public opinion. Are these pictures being widely disseminated in the region?
JUAN COLE: Of course. Interestingly to me, Al-Hayat, which is a major Pan Arab newspaper, Saudi funded appears in London but then has editions throughout the Middle East led with this story.
What they said was that there were two images coming out of Iraq that kind of told the Iraq story as we know it now. One was this image of a U.S. soldier shooting dead a wounded prisoner of war. And the other was the death of Margaret Hassan, one of the people who had been taken hostage by terrorists.
At first I thought, well, gee, that's an interesting way of doing it, that they balanced the two against one another. But then as I thought about it, it seemed to me it cast the poor Marine in a bad light to be compared in this way to the hostage takers who were beheading hostages so I think the general reaction to this sort of thing is very negative, of course.
People are furious in much of the Sunni-Arab world on the street about the U.S. military actions in the Sunni heartland. Al Jazeera's anchor last night was almost having a heart attack he was so angry. He said, "Where are the Arabs? Where are the Arab states, why is nobody complaining about this?" One of his guests was saying the Jordanian public is universally appalled and angry but that the governments of the region are refusing to condemn the operation.
One of the reasons is that in part this operation was against the group of Zarqawi and which is al-Qaida linked, and all of the governments in the region are afraid of those people. So they'll hardly object to them being put down.
RAY SUAREZ: Is it materially different, this case, because there's videotape of this incident inside a mosque? There have been a lot of stories circulating since the beginning of American military action in Iraq about confrontations between various Iraqis and American forces.
JUAN COLE: Well, I think this particular incident may be more striking to Americans. A lot of the Arab press has been much more concerned with incidents we don't hear so much about.
There's a great deal of complaint that the U.S. military sent away the Red Crescent which had brought supplies to the city. The minister of defense appointed by the interim government said that there was no need for such supplies in the city, that most of the civilians had left.
That's simply impossible. There's a city of 250,000. There must be at least ten or twenty thousand civilians in the city, many of them without water, without supplies, in conditions of combat.
So much of the press coverage has been about the plight of those civilians, about the... what is seen as an unreasonable action in the U.S. Military not allowing the Red Crescent in -- much more concern about ordinary, everyday people.
RAY SUAREZ: Lt. Col. Liddy, fighting around those ordinary people who still remain behind in a place like a city while you're trying to kill the enemy must make it quite a difficult situation for the average enlisted person who is just trying to do what he was trained to do.
LT. COL. RAYMOND LIDDY: It certainly does. It provides probably the most difficult scenario that I can think of.
RAY SUAREZ: And does the rule book... does the rule book then become a more flexible document? We've talked a lot about what the rules are and what they require that you do. Is it hard to keep that uppermost in mind when you're walking down a street or walking into a room like that?
LT. COL. RAYMOND LIDDY: The rule book does not fluctuate. Those rules of the conflict of war are there. Each of the Marines are trained on them. But again the factual scenario becomes very complex and very difficult.
We're asking our Marines to use their discipline and their best judgment in a split second to determine whether or not they need to engage what they believe is a threat and defend their life or withhold that force, withhold their fire power and risk losing their life.
So it's a very, very difficult situation to put our young Marines in. And that's where the discipline and good judgment comes.
RAY SUAREZ: Eugene Fidell, do you think this will make people question the embed program? The man who took these pictures was part of the embedding process. He may be called to trial as a witness if it gets to that.
EUGENE FIDELL: I think that's quite right. I think that it will cause a reconsideration of the embed program -- if for no other reason than this videotape demonstrates how profoundly hazardous this kind of mission is. I think it raises serious questions for news management to be frank.
You're sending people truly in harm's way. It requires a balance between your obligation as an employer and a news agency; the government's obligation to make sure its citizens are not unduly placed in harm's way and of course the first amendment and the need to have a free flow of news.
I also think that the entire controversy is going to present yet another challenge to our military justice system. We're having a continuing seminar over the last several years. And it will be a test of whether you can have public confidence in the administration of justice.
I'm sure we will wind up with public confidence being served by the investigative process. It's only just beginning. And I would strongly encourage everyone to not draw any conclusions prematurely.
RAY SUAREZ: Eugene Fidell, guests, thank you all.