AMY GOODMAN: The most prominent among these incidents was a case earlier this week of a U.S. soldier apparently executing a wounded Iraqi in a Fallujah mosque. It was captured on videotape by an NBC cameraman.

SOLDIER 1: He’s [inaudible] faking he’s dead.

SOLDIER 2: Yeah, he’s breathing.

SOLDIER 1: He’s [inaudible] faking he’s dead.

AMY GOODMAN: The excerpt of a videotape captured by Kevin Sites of NBC in a Fallujah mosque of a soldier executing a wounded Iraqi, who was laying in the mosque. We’re joined now by Jules Lobel, vice president of the Center for Constitutional Rights he teaches at the University of Pittsburgh Law School, and he’s the author of a new book called, Success Without Victory. Welcome to Democracy Now!

JULES LOBEL: Thank you, Amy.

AMY GOODMAN: Great to have you us with, Jules. Can you talk about this videotape that is now being seen around the world?

JULES LOBEL: Yes. If it is correct what it apparently shows, which is that a soldier was executing a prisoner, then it’s a clear violation of the Geneva Conventions. But I think that the whole problem of the U.S. Government here in the war crimes area is that they’re focusing on the individual. You know, there was another incident which was recorded also by a United Kingdom video crew on Channel 4 in Britain, in which another soldier was doing apparently the same thing. And if you look at Sites’ website, he —

AMY GOODMAN: This is Kevin Sites, the NBC cameraman —

JULES LOBEL: Kevin Sites, the NBC cameraman, what he does is he shows that — he puts up quotes from different Marines. He says the Marines say they were operating under rules of engagement, which said this was a weapons-free zone. And what they meant by weapons-free was that they could shoot at anything. They didn’t have to determine whether it was hostile. Anything that they saw was deemed to be hostile in Fallujah. It reminds you of the free-fire zones in Vietnam. Under the Geneva Conventions, commanders have a responsibility to ensure that civilians are not indiscriminately harmed and that prisoners are not executed. The real problem here is coming from the top, not from the individual soldiers. I think the investigation should really be on what the rules of engagement were that these Marines were operating under, and whether they were given instructions not to kill prisoners, not to discriminate between insurgents and civilians, and my hunch is that they weren’t.

AMY GOODMAN: Now, is there a distinction between an innocent civilian who’s killed and a resistance fighter who was wounded, who is unarmed? Kevin Sites, the NBC journalist said that he didn’t pose a threat, and he was unarmed.

JULES LOBEL: Yeah. There’s a distinction, but both of them are protected. An unarmed fighter, who is wounded, is considered to be out of combat and therefore treated as if they were a civilian. Therefore, to kill a combatant who’s wounded and unarmed and is not taking part in the fight, is similar, is identical to killing a civilian, and both of them are protected under the Geneva Conventions.

AMY GOODMAN: The Channel 4 videotape, which I haven’t seen, is this also a case in Fallujah?

JULES LOBEL: It’s a case in Fallujah. It’s almost the same thing. I don’t think in a mosque, but almost the same thing. The only thing they didn’t capture was the actual killing of the person. You saw a marine shooting at a — at an unarmed, wounded insurgent, and you don’t see what happened, but the marine says, he’s done for.

AMY GOODMAN: And so, what does it mean to say that it violates international law? I mean, are these the laws that the U.S. Marines abide by, have to answer to?

JULES LOBEL: Well, for 50 years, the United States has ratified the Geneva Conventions and believed that the Geneva Conventions protect both our soldiers, and are the rules of combat which our soldiers should fight by. In this conflict, as we saw from the top, there’s this whole effort by Gonzales and other people to say, well, the Geneva convention’s provisions are now quaint. That was Gonzales’s word in his memo. And not to abide by them. And it’s very disturbing, and you know, amnesty international has called for an investigation of this. Louise Arbor, top U.N. Official, has called for an investigation. I really think that the investigation should start from the top. As to how these soldiers are being trained and told to fight in this conflict. But the Geneva Conventions was passed after World War II, and it was designed to overcome the terrible abuses that we saw that occurred in World War II. If we’re going to go back to the era, the world is in for a very sorry state.

AMY GOODMAN: Jules Lobel is author of Success Without Victory. You pursue a lot of these human rights cases. You don’t usually win.

JULES LOBEL: No. They’re hard cases to win. But you know, for example, right now, we’re suing the military contractors who were involved in the torture at Abu Ghraib. It’s a hard case. We’re hoping to win. And we’re representing the people in Guantanamo.

AMY GOODMAN: Let’s talk about Abu Ghraib for a minute and also Gonzales. You are talking about Alberto Gonzales, the white house counsel whose just been nominated by President Bush to become the Attorney General. Can you explain his significance when it came to the underpinnings, the memos that were written, sort of providing the legal framework, how Abu Ghraib prisoners should be dealt with.

JULES LOBEL: Yeah. His memos said that not only with respect to Al Qaeda, but with respect to the Taliban prisoners, who the world believes are covered by the Geneva Conventions, that the Geneva Conventions should not apply. I think that’s set in train a whole series of events whereby the U.S. Government began to take the position that not formally, maybe informally, that we’re not going to abide anymore by the Geneva Conventions or that we’ll try to circumvent them. And there have been various memos, I think, attempting to circumvent them. For example, the Geneva Conventions requires that you cannot deport people from Iraq, from occupied territory, and take them out, because of what happened during World War II where the Germans deported people and killed them. Well, the United States has been, it’s come out, that we have been deporting or we have been taking people out of Iraq, secretly, to interrogate them where the red cross would not know about it, and presumably using much harsher measures which would violate the Geneva Conventions. But there’s a move to get around all the different provisions of the Geneva Conventions. Taken as a whole, what the U.S. Government has done, is tried to avoid many of the restrictions of the Geneva Conventions.

AMY GOODMAN: The contractors who worked at Abu Ghraib, who are they?

JULES LOBEL: These are the Titan Corporation and the Khaki corporation. They’re military contractors. We allege that they were involved in the torture, that some of their people were involved in the torture, and because they’re private military contractor, we believe we can sue them.

AMY GOODMAN: It’s interesting is there a precedent? Because just this week, a federal judge ruled a case can go forward in the United States of prisoners, detainees, at a facility in New Jersey, who, they applied for political asylum, they were being held, and they were abused by the guards at the facility. Now, the government, the judge ruled that they cannot go after the U.S. government, but they can go after the private contractor that ran the jail. Would that have relevance in this case?

JULES LOBEL: That’s one of the reasons we sued the private contractors. Because that would have relevance to show that even if the government has immunity, and there are statutes and there are provisions that give the government itself immunity in some of these cases, the private individuals, the private contractors should not have immunity, nor should the commanders have immunity.

AMY GOODMAN: And how far along is this case?

JULES LOBEL: The case is, we’re arguing about motions to dismiss. The contractors have moved to dismiss the case and it’s going to be a hearing in San Francisco in the beginning of December, I think.

AMY GOODMAN: And how involved were Khaki? Were the two, and Titan, in Abu Ghraib? Were they running the whole facility?

JULES LOBEL: I don’t know if they were running the whole facility, but I think they were intimately connected with what was going on, particularly the interrogations parts of it.

AMY GOODMAN: Aren’t a lot of these guys actually from the U.S. military?

JULES LOBEL: Sure. There’s a total intermixing of these private contractors and the U.S. military folks.

AMY GOODMAN: And what about Guantanamo?

JULES LOBEL: Well, in Guantanamo, we just sued on behalf of Mr. Rasul who is our lead plaintiff, who was a British citizen, who claims he was tortured in Guantanamo. We filed a suit against the officials who we claimed did the torturing, but also who set up again the rules under which these people could be tortured. You know, the U.S. government has said, well, if there’s any abuse, we’ll go after the individual Marine or the individual soldiers, but nobody’s looking at the commanders, the people really responsible, for creating a situation in which people could be tortured or where prisoners could be executed.

AMY GOODMAN: Finally, what does it mean to have Alberto Gonzales become the Attorney General of the United States, talking about Geneva Conventions as what was it, quaint, and saying that they don’t apply?

JULES LOBEL: To have the chief law enforcement officer of the United States be somebody who in his memos showed a total disregard for one of the key international law provisions, is just outrageous. It’s inconsistent with the whole notion of a chief law enforcement officer.

AMY GOODMAN: Do you think Democratic Senators will be opposing this?

JULES LOBEL: I’d hope some of them would have the backbone to oppose it. But in the past, you can’t be very optimistic about that.

AMY GOODMAN: Well, Jules Lobel, I want to thank you very much for being here. Jules Lobel, Vice President of the Center for Constitutional Rights, teaches at the University of Pittsburgh Law School, author of the new book, Success Without Victory.