This is a partial transcript from "The O'Reilly Factor," Nov. 17, 2004, that has been edited for clarity.
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BILL O'REILLY, HOST: Now for the top story tonight, reaction from Human Rights Watch. With us now, Kenneth Roth, the executive director of that group and a stand up guy--who always comes in to debate the issues.
Now am I making a mistake here?
KENNETH ROTH, HUMAN RIGHTS WATCH: Well, let me begin where I think we agree, Bill. We agree that it's appropriately a war crime to execute somebody who is simply wounded if they don't pose an immediate threat. We both agree to that.
O'REILLY: Right.
ROTH: And we agree to that because that protects American soldiers as well.
O'REILLY: Right.
ROTH: They might find themselves wounded on the battlefield...
O'REILLY: Well, I think everybody would agree that executions of incapacitated wounded people, obviously so, are against the Geneva Conventions (search).
ROTH: Exactly.
O'REILLY: And did you see the whole videotape?
ROTH: Yes, I did. So...
O'REILLY: OK, you notice there was another wounded soldier across the room who had clearly identified himself as such. I hope you noticed that.
ROTH: Yes.
O'REILLY: And he was left alone. All right, go ahead.
ROTH: So what really this comes down to are the facts of this case. Now what we know is, walking into the building, if you look at the tape, the soldiers, the Marines knew that there were wounded soldiers in there left the day before by other Marines. They walk in casually. They didn't feel there was any immediate threat.
O'REILLY: No, he wasn't casual about it. He — no, I'll disagree.
ROTH: (UNINTELLIGIBLE.)
O'REILLY: I'll disagree now. No, he was cautious. He had his weapon raised. He wasn't casual. This wasn't a joke. So I'm disagreeing with you there. Go ahead.
ROTH: Now at some point, he starts shooting. Now did he feel that he was under immediate threat? Personally, if I was under immediate threat, I would shoot right away. He didn't. He said...
O'REILLY: Well, wait, what do you mean he didn't? He yells out an expletive, he's faking death, twice to warn his comrades. How do you get that?
ROTH: Exactly. It took three full seconds. I timed it. He's faking he's dead. He's faking he did, bam.
O'REILLY: Right and then you see the guy on — well, wait a minute.
ROTH: That's...
O'REILLY: While he's saying this, this guy is moving. He moves twice to the right, the guy on the ground.
ROTH: No, but — just remember, it can't be, by definition an imminent threat just to breathe or just to move. I mean, that's what wounded people do. You could be unconscious.
O'REILLY: This guy was staring at him. He's seeing this guy move. All right, you have to, look, I'm not saying that the guy made the right decision. I'm saying he made the legal decision to protect himself and his unit from somebody who could have had an explosive device and wiped them all out.
ROTH: See, my position is that there is a prima facie war crime here that deserves court-martial. He may have defenses based on what he's...
O'REILLY: You would court-martial him?
ROTH: Absolutely. Let me explain why.
O'REILLY: God.
ROTH: Because you cannot possibly have a rule that says it's OK to execute somebody just because...
O'REILLY: He didn't execute him.
ROTH: He did. He shot him right there.
O'REILLY: No, there's a difference between shooting a person who you perceive to be a threat in a kill zone, OK, and the guy violated the Geneva Convention by being in the mosque in the first place, by fighting in the mosque.
ROTH: No, no, no, wait, the Marines left him there. So...
O'REILLY: Yes, he was shot in the mosque, fighting the Marines, a violation of the rules of war.
ROTH: Absolutely. I'm not defending the insurgents, OK?
O'REILLY: Good.
ROTH: The insurgents committed war crimes left and right. Nonetheless, there is...
O'REILLY: You would injure this young Marine?
ROTH: If you don't, you are sending the signal that injured person simply moving constitutes sufficient threat to have him shot. That is not a signal America wants to send if it's going to defend...
O'REILLY: If a guy is feigning death and moving after that...
ROTH: Well, what is feigning death? It means having eyes closed...
O'REILLY: It means...
ROTH: What if you're unconscious and you're breathing? Is that feigning death? What if you...
O'REILLY: Well, obviously he wasn't unconscious...
ROTH: ..., is that feigning death?
O'REILLY: No, no, no.
ROTH: No, I mean, seriously, we've nothing here to indicate that he had anything other than move as an injured...
O'REILLY: We have nothing — look, this Marine obviously thought he was in danger. And he yelled to his comrades he's faking death, he's faking death.
ROTH: Three times.
O'REILLY: Then the guy makes a move, and he gets shot. The other guy in the same room, who's wounded, clearly identifies himself as somebody who's wounded and is not a threat. This guy didn't. I'm telling you, if I'm there, and if you're there, we both do the same thing the Marines did.
ROTH: See, this is why you need a trial because you can't possibly send the....
O'REILLY: Don't need a trial. That is demoralizing to our troops. It's unfair to our troops. You've got to give the Marine the benefit of the doubt.
ROTH: No, what you've got to do is hold them to the test that if there's a threat, you've got to judge him by what a reasonable person would do in those circumstances. Was it reasonable to think that simply because a severely injured...
O'REILLY: Mr. ROTH:, we have...
ROTH: ...he's an immediate threat. I do not think so.
O'REILLY: We have millions of people watching right now.
ROTH: That's right.
O'REILLY: Millions of people. And I will submit to you that 90 percent of the millions of people all over the world agree with me and not you.
ROTH: OK, I...
O'REILLY: So who is being unreasonable here?
ROTH: ...I would submit that if you ask soldiers, they do not want to send the signal that it's OK to killed somebody who's injured, just because...
O'REILLY: OK, we are on the Armed Forces band. We are on the Armed Forces band, going out to all the United States soldiers all around the world. I'll submit to you, again, 95 percent of those soldiers will write in and tell me, they would have done the exact same thing. Who is being unreasonable here, sir? You or the soldiers and the folks?
ROTH: OK, well let's see what they do, but I've got to tell you it is not in the interests of American soldiers to have a rule out there that if you're injured and you move, you get shot. That is not what the Geneva Convention...
O'REILLY: That's not what this was. And you know it. This was a kill zone.
ROTH: Of course, it was...
O'REILLY: A hot zone, where a guy, the Marine, perceived this guy to be a threat. And he absolutely could have been. One grenade, everyone's dead. All right? They hadn't seen this guy for 24 hours. This was a 24- hour battle. He'd been lying there. They thought he was dead when they walked in the room.
ROTH: Yes, well, they thought he was injured. That's what...
O'REILLY: No, they thought he was dead.
ROTH: Well, no, the guy walking in said...
O'REILLY: No, then they wouldn't have said he's faking death.
ROTH: What we have to ask...
O'REILLY: No, no, you are wrong. I'm right.
ROTH: ...was it reasonable for this guy to think that he was under imminent threat because...
O'REILLY: Of course it was reasonable.
ROTH: ...a guy who is there, who was seriously injured, moved. I say that that is unreasonably, didn't even have to...
O'REILLY: He's faking death, he's faking death.
ROTH: Right.
O'REILLY: You think the Marine made it up?
ROTH: If you were really under immediate threat, you wouldn't waste those three seconds saying that. You would shoot him. I think his very word...
O'REILLY: Now, he didn't shoot until the guy moved. All right? He didn't shoot until the guy made the sudden move. You see it in the...
ROTH: Seen moving is not...
O'REILLY: All right. Here's what's going to happen. He's not going to be court-martialed. It's not going to happen. You've got to give your soldiers a reasonable doubt in this kind of an intense conflict. And your group should be giving the reasonable doubt to the soldier. But I respect you for coming in. People heard you, people heard me. I guarantee you 90 percent of the millions of people watching today all over the world will agree with me on this one.
ROTH: Well, I hope for the sake of American soldiers who are injured in tomorrow's conflict, that they don't...
O'REILLY: All right. Mr. Roth, thanks very much. We appreciate it.
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