This is a partial transcript of The Big Story With John Gibson, March 16, 2004, that has been edited for clarity.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I did my job there, I saw what war is like. I didn't like it. I am against it, and now I'm continuing to fight. This time I'm choosing nonviolence and I'm choosing to fight for peace.

(END VIDEO CLIP)

JOHN GIBSON, HOST: That is staff Sergeant Camilo Mejia (search) refusing to return to Iraq. The former National Guard soldier surrendering to military police in Massachusetts. He went AWOL during a two-week leave in October. Now he wants to be classified as a conscientious objector (search) and discharged from the army.

Attorney Todd Ensign (search) is representing the Mejia. Mr. Ensign, today's big question, when did Sergeant Mejia decide he was a conscientious objector?

TODD ENSIGN, MEJIA'S ATTORNEY: I would — from my discussions with him, I would say, it was after he spent five months in Iraq fighting as a soldier in a platoon.

GIBSON: Killing people?

ENSIGN: Killing people. Being shot at, killing and losing men in his own unit. He decided at the end of that period. He came home on leave for other reasons. Not for medical. And he decided I can't go back. I cannot go back and be part of that again, and sometime after that he contacted me and our organization, and we said we would help him, support him. We believe he is sincere. We believe he has real integrity. One thing people are sometimes surprised that you can become a conscientious objector in the Army.

GIBSON: Well, it was — this surprise started some time ago. There's a great deal of history of this in the Vietnam War (search). But right now, your client isn't going to have to prove he is a conscientious objector. He is going to be facing a military court having nothing to do with being a c.o., correct?

ENSIGN: That's — the charges of desertion or AWOL are not related to being c.o.

GIBSON: OK, so how do you defend what is obvious?

ENSIGN: Well, we would come in with the legal arguments that — we would bring in international legal experts that would testify that under international law — and I'm talking about things like the United Nations (search) charter. We agreed after World War II not to carry on individual defense of this country unless we were directly attacked. We would work with international agencies. Clearly, in this case we chose not to do that, and we would try to argue that.

GIBSON: Mr. Ensign, are you walking your client into Leavenworth?

ENSIGN: I wouldn't say so. I think ...

GIBSON: Do you think this is a viable defense, or is this a symbolic defense, and another step in the conscientious objector period, but he — but that, in fact, he is going to go to jail?

ENSIGN: He has received an awful lot of support. As you know, a lot of attention. A lot of media attention, and people are following him, and the phones are ringing all day. I think the military will have to make a difficult choice here, because there's a lot of guys like Camilo actually.

GIBSON: Doesn't that tell you what choice they'll make?

ENSIGN: Well, they can decide to be lenient and get rid of a potential martyr, as maybe you are suggesting, or they could be harsh and — excuse me — and make a martyr out of him.

GIBSON: But I remember this from the Vietnam period. I remember real well. There were not a lot of successful defendants who chose to be a conscience objector, either before they were drafted or while in the military.

ENSIGN: Well, you are right. You don't use conscientious objection as your defense to going AWOL, because that won't work. They will say we're going to try you for these charges, and at the same time they will consider a CO application. There's two phases of the — two separate parts.

GIBSON: So he could be granted a CO status and be hauled off to jail?

ENSIGN: Exactly. There have been people during the first Gulf War (search) who went to jail and filed CO and were eventually discharged as a CO, even though they served in jail.

GIBSON: Is he a Quaker?

ENSIGN: He is not a Quaker. He doesn't — you know ...

GIBSON: Why would that be important?

ENSIGN: Well, you recall in '68, the Supreme Court said you no longer have to have adherence to an organized faith. You have to have deeply held moral beliefs that can be personal.

GIBSON: They have to be provable.

ENSIGN: The hearing officer has to evaluate him and decide is this person conscience and sincere in opposition to all war?

GIBSON: Not just the Iraq war.

ENSIGN: Not just the Iraq war. He has to be opposed to all war, which he is. He is a sincere conscientious objector in my opinion.

GIBSON: You know what, let's just set that aside for a second because you have to convince somebody of this.

ENSIGN: Right.

GIBSON: It doesn't matter whether you believe it or I believe it. You have to convince people wearing military uniforms that he is.

ENSIGN: That's true.

GIBSON: And that strikes me as an uphill battle. What I'm asking you, is Mr. Mejia, being a sacrificial lamb for the idea of conscientious objector status?

ENSIGN: Well, let me just be clear first. This young man is 28 years old. He is a smart cookie. He knows exactly what his choices have been, and we have presented it to him that way. I would never take a client ...

GIBSON: What did you tell him?

ENSIGN: I told him these are the risks. If this is how you sincerely feel ...

GIBSON: Do you tell him — do they still send them to Leavenworth (search)?

ENSIGN: They sent him to Leavenworth with more than a year sentence. With less than a year ...

GIBSON: Did you tell him what that is going to be like?

ENSIGN: Actually, Leavenworth is better than most state prisons in my opinion. He is fully aware he is taking a risk. He sincerely believes - if he was sitting here he would say it — that he could not go back to the Gulf and continue fighting that war.

GIBSON: It's that personal, that he personally can't or that he believes the United States shouldn't be fighting that war?

ENSIGN: He believes both. He believes both. He believes the war is a bad idea. There were no weapons of mass destruction. All those arguments. And that he personally is a CO.

GIBSON: Then, if it's a political decision, he has no right to make that call?

ENSIGN: Well, you can have both beliefs, of course. You can be a CO and have political beliefs as well.

GIBSON: Right, but the political beliefs don't come into any bearing when you are a member of the United States military. You are supposed to follow orders.

ENSIGN: You follow orders up to the point of international legal standards, that's true.

GIBSON: He is going to put himself in the position of Nuremberg judges and say this is an illegal war?

ENSIGN: Yes, he will argue — I am hesitant to mention Nuremberg, because then people say, well, you are comparing American military to the Nazis and no one is doing that. That is why I am hesitate to do that. Look, but he would say, yes, I have a duty not to go and fight a war like that one.

GIBSON: Right. He is substituting his political judgment for that of the president, commander in chief, and all the way down the line to him, which is a vast succession of steps.

ENSIGN: He is taking — yes, he is taking an opinion that the reasons they gave for going to war and the way we went to war are both illegal. That's what his position it is. And I could say one more thing, actually, CO's about three out of four of them get approved by the military. So it's not an abysmal failure. But you're right the criminal charge will take precedence.

GIBSON: All right, Todd Ensign, appreciate you coming in. Good luck.

ENSIGN: You are welcome. Thank you.

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