Terror Suspects: Handle With Care?

This is a partial transcript of "Special Report with Brit Hume", May 13, 2004 that has been edited for clarity.

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(BEGIN VIDEO CLIP)

DEFENSE SECRETARY DONALD RUMSFELD: People are trained in that supposedly. Full stop. Therefore, anyone who is running around saying that Geneva Convention (search) did not apply in Iraq is either terribly uninformed or mischievous.

(END VIDEO CLIP)

JIM ANGLE, GUEST-HOST: There is Donald Rumsfeld (search) on the way to Baghdad today, talking about the Geneva Convention. And there are a lot of questions about this. How does the U.S. get information from terrorists or insurgents in Iraq about potential attacks on American targets? What kind of interrogation techniques or pressure can we use without violating the Geneva Convention? How nice do we have to be when lives are at stake?

To help us sort through some of these very difficult questions is former Naval judge advocate Greg Noone.

Greg, thanks for joining us.

GREG NOONE, FMR. NAVAL JUDGE ADVOCATE: Jim, thank you.

ANGLE: First, let's be clear about what the Pentagon and Donald Rumsfeld said about the Geneva Convention. They made a distinction and said some people that we pick up are not actual POW's as defined by the Geneva Convention, but we will treat them consistent with the Geneva Convention. Why the distinction?

NOONE: Well, the distinction is that if you are given the POW status, you have more rights afforded to you. But the bottom line is that the core elements of the Geneva Convention of being treated humanely, and that's where the distinction is. That everyone is going to be treated humanely.

If somebody is given POW status, they will be even afforded more rights. But the hard part is with the Geneva Convention is if he's a POW, you can ask for name, rank, serial number. And then if they don't want to give you anything more than that, you're all done.

ANGLE: And we're not in a position where we can be all done just because they say we don't want to tell you anything.

NOONE: That's right and that's the difficulty. So what techniques do you undertake next that are in keeping with the spirit of the Geneva Convention versus someone saying that they've gone too far and perhaps, you know, tortured somebody?

ANGLE: Now, the Geneva Convention was originally conceived as applying to armies, to people part of a uniformed military, military hierarchy taking orders, that sort of thing. Does the Geneva Convention apply to terrorists that we may arrest anywhere in the world?

NOONE: No, it would not. Terrorists clearly fall outside of that. In fact, if you go back to the International Criminal Court that we've talked a lot about, they took terrorists out of that as well. That's for genocide, crimes against humanity, war crimes going back to the kind of leaders and armies' type of thing. Terrorists were kept outside of that as well, because terrorists have been seen as criminals and they're outside the Geneva Convention.

ANGLE: So they can be treated in a somewhat more difficult manner than regular POW'?

NOONE: Sure. That's the idea. And the Geneva Conventions are there to protect POW's. They came out of World War II and the atrocities that the Japanese and the Germans did against our own men and the allies. And so that's where the protections come in. You're not going to have the same protections on these guys.

ANGLE: Now, what about the people in Iraq? Defense Secretary Rumsfeld had said they should be treated consistent with the Geneva Convention, meaning treated humanely.

NOONE: Right. Right.

ANGLE: But we're talking about in some cases terrorists, in some cases insurgents who do not belong to a uniformed military. How do they get treated, and how are they defined?

NOONE: Again, the difficulty is going to be in determining who is who because you start with that of baseline of humanity. If they are insurgents, then they would be treated in accordance with Article Three of the Geneva Conventions, which is that humane treatment.

But terrorists, they're going to treat them humanely until they sort out whether or not they're the types of folks that are high-value detainees. And that's really the issue that's turning in this incidents in Abu Ghraib is the issue of high-value detainees.

ANGLE: Right. Right. Now, let's talk about interrogation techniques. There's been a lot of talk about this. You can one of the things that's used is you change people's routine. You don't let them sleep regular hours. You wake them up in the middle of the night. You keep the lights on in their cell. You may change their diet. You just keep them a little disoriented over time. Where is the line drawn, if it is drawn, by the Geneva Convention on these kinds of actions?

NOONE: Well, and that's the whole argument is that you are going to have enough lawyers in a room to decide. Well, if it stops you, it stops you there. The Pentagon did up a secret threat -- a "matrix" on how we can interrogate these guys. And the lawyers there all looked at it and said this is consistent with the Geneva Conventions.

The Geneva Conventions require the prisoners to give name, rank, serial number. And then they require the detainee power to not use torture, threats of punishment and cruelty to get more information. So there's a lot of room in between there between name, rank and serial number and torturing somebody. And that's where the spirit of the law will be brought into play and what you interpret that as being.

ANGLE: Well, as a counterterrorism official told me one time that one of the things you use with high-value targets is isolation. That you keep people -- you put them in a cell and for all they know, they will never see anyone again except you. And this guy told me that at some point if I am the only person you can talk to, at some point you look forward to talking to me.

NOONE: Sure. And I'm not an expert in interrogation by any stretch. But the good lawyers-- civilian military lawyers at DOD tried to come up with this "matrix" keeping with the spirit of the Geneva Convention.

Now, all of that, I'm sure, without having seen this secret document -- all of that, I'm sure, is based on reasonable durations, reasonable stressors. They're not going to lock someone away for nine months or anything as extreme as that. So we're in this area of reasonableness, and everybody has a different definition of what reasonableness is.

ANGLE: Right. And that's where the rub comes.

NOONE: It sure is. And in fact, the International Committee of the Red Cross, which has visited Abu Ghraib and other prisons, and wrote reports, as is their obligation to do to the detaining power; and they said that these items were not widespread and systematic.

They in fact, used terminology like "isolated," and were more concerned about the high-value detainees that they were receiving treatment that was questionable and may have been over the line. But the vast majority of other detainees were being treated fine.

ANGLE: Let me ask you a difficult question here. We know from reports that some of the relatives and friends of those who were accused of the abuse are the very people who leaked the pictures initially to "60 Minutes."

It strikes me as kind of an odd situation that people would leak pictures that seem to implicate them in illegal activities. What could they possibly have been thinking? One of their rationales was -- about 30 seconds left -- was that they would show that this was a wider spread thing. They were maybe taking orders.

NOONE: I don't know what they were thinking, if that's in fact, the case. Obviously the investigations are ongoing. They may have been operating under the best defense is a good offense. The orders of defense is going to be difficult one for them, because they're going to have to show that a reasonable person would have followed these same orders. Because in the legal order, they're going to have to seek clarification. And did they do that?

So, who leaked the issue -- who leaked the pictures may not be a larger issue, as to who may have been telling whom what, or what kind of positive reinforcement they were given?

ANGLE: Greg Noone, thank you very much.

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