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Rumsfeld Tours Abu Ghraib Prison; Investigating Nick Berg's Death

Aired May 13, 2004 - 20:00   ET


The unfolding mystery of Nicholas Berg's death is leading to some new questions, as well as some sinister answers.


ZAHN (voice-over): New clues tonight about the execution of Nicholas Berg.

UNIDENTIFIED MALE: He was not disrespectful of danger. He just didn't recognize danger in people.

ZAHN: How the tape of Berg's death could help lead investigators to his killers and why clues point to a very disturbing development in the war on terror.

Donald Rumsfeld makes a surprise trip to Iraq and tours its most infamous prison.

DONALD RUMSFELD, SECRETARY OF DEFENSE: It's been a body blow for all of us, but it doesn't represent America.

ZAHN: The pictures we've seen outraged the world. The ones we haven't outraged lawmakers. Should the rest of us get to see them as well?

Also, the deadly numbers game.

UNIDENTIFIED MALE: Thirty-five enemy killed, two enemy wounded.

ZAHN: And why is the U.S. military for the first time since Vietnam stressing the enemy casualty count?


ZAHN: Also ahead tonight, getting enemies to answer questions. Is there a conflict between techniques that work and those that are ethical? There's also some lighter fare on the menu. We're going to serve up a call for low-carb sanity.


Coalition forces fought Iraqi militants today near a gold dome mosque in Karbala. Shiite Muslims consider it one of their holiest sites. Two U.S. troops died in fighting around Iraq, bringing the over U.S. death toll to 778.

Deputy Defense Secretary Paul Wolfowitz today asked lawmakers for a $25 billion reserve fund to pay for military operations in Iraq and Afghanistan. Members of the Senate Armed Services Committee say the price tag isn't a problem, but they want more oversight on how that money is spent. We're going to get one senator's thoughts on that request a little bit later on in the broadcast.

No injuries reported after a freight trail derailed this afternoon in Denver. Several cars fell into the South Platte River.

"In Focus" tonight, the ongoing investigation into who killed Nicholas Berg and how he also fell into the hands of terrorists. Iraqi authorities today said Berg was under arrest only briefly before he was handed over to U.S. troops. U.S. officials however say Berg was never in American custody. Meanwhile, the investigation of Berg's execution is providing some new and disturbing clues.

For that, we go to Washington and justice correspondent Kelli Arena.

Good evening, Kelli.


The CIA today said that the person who spoke on that videotape and who committed the murder of Nicholas Berg is likely that of fugitive terrorist Abu Musab al-Zarqawi. And the tape also provides some other clues for investigators.


ARENA (voice-over): Terror experts say if this is indeed Abu Musab al-Zarqawi, it's a coming out of sorts.

EVAN KOHLMANN, GLOBALTERRORALERT.COM: I think it sends a message to Zarqawi supporters that Abu Musab al-Zarqawi, Ahmed al-Khalayleh, is not afraid to spill American blood with his own hands, with a knife, if that's what it takes.

ARENA: It also provides investigators with hard evidence if Zarqawi is ever caught and brought to justice. And the tape provides some clues for identifying the other four men. Voices can be heard. Even one face is partially exposed.

KOHLMANN: This individual also happens to be wearing high tops, sneakers, another distinguishing factor, another unusual thing which American intelligence can use to try to ply his identity. Over here, we have a militant that's wearing another keffiyeh. This is colored red. Now, again, with this resolution, it's difficult to tell, but it appears that this may be an individual wearing a Saudi-style keffiyeh.

ARENA: Other features including height and skin tone can also provide leads. As investigators study the murder of Nick Berg, even the transmission of the tape will provide some clues.

KOHLMANN: There were some mistakes made in this case. There were errors made by those that distributed the video. They didn't secure their Web site properly. There were holes that allowed visitors to get views of the file directories inside of this Web site.

ARENA: The tape has clearly been edited. Finding the original would be optimal. But there is no getting around the need for human intelligence.

BILL DALY, FORMER FBI INVESTIGATOR: This is a very, very challenging, hostile environment for people just to go about their normal, everyday activities, nonetheless try to conduct an investigation. We can't go knocking on doors. We can't conducting surveillance in neighborhoods.


ARENA: Especially because the 50 or so FBI agents in Iraq are primarily restricted to the U.S. secured Green Zone -- Paula.

ZAHN: Kelli, I understand that you have been working on the story all day long. And there is a new report to suggest that there was some kind of linkage between Mr. Berg and Mr. Moussaoui. What is that?

ARENA: Well, it's a bit complicated, Paula, but here is what we know.

Nick Berg's father said that his son was taking a course in Oklahoma just a few years ago and that while he was on a bus, the man sitting next to him asked if he could use his laptop computer. And U.S. officials say that Berg shared his password with that individual, and that somehow that password ended up in Zacarias Moussaoui's possession.

The FBI tracked down Berg. His father says that he cooperated fully. According to officials I spoke to, they were satisfied that Berg did not have a connection. But some officials suggest that it's that connection that may have prompted the FBI to interview him at least three times before he was released from detention, Paula.

ZAHN: Very strange twist in the story. Kelli Arena, thanks so much. Try to get your voice back. We'll give you a day off maybe next year.


ZAHN: Just who is Abu Musab al-Zarqawi and does his emergence makes him as dangerous a threat to the U.S. as Osama bin Laden?

Those are questions for our own terrorism analyst, Peter Bergen, who joins us tonight from Washington.

Hi, Peter.

So what is the linkage, if any, between Mr. Zarqawi and al Qaeda?

PETER BERGEN, CNN TERRORISM ANALYST: Well, Zarqawi had his own group, which was called al-Tawhid, which in Arabic means unity. And it was a separate group according to both European and American counterterrorism officials I've talked to in the past.

He had his own group. We also know from a letter that was also discovered in January in 2004, a letter from Zarqawi to the al Qaeda leadership implying some sort of separation. So on the one hand, he has his own group and is his own man. On the other hand, CNN, CNN's Henry Shuster has reported in the past that Zarqawi received financing from al Qaeda in Afghanistan.

So it's a little murky. But it seems to me overall, Paula, that here's a guy who had his own group who sometimes reached out to al Qaeda but is very much his own man and right now, from an operational standpoint, is more important than Osama bin Laden in terms of the number of operations he's undertaking. Osama bin Laden still remains the ideological godfather of all this, but in terms of actually doings on the ground in Iraq and in Jordan, and possibly in places like Casablanca, Madrid, where Zarqawi is also being linked to attacks, Zarqawi is extremely active right now.

ZAHN: Hasn't the U.S. government though on one level led us to believe that that linkage is far stronger than what you're pointing out tonight?

BERGEN: Well, Secretary Powell in his presentation to the U.N. Security Council before the war certainly presented a pretty strong link.

And one part of the exhibits there was that Zarqawi had gone to some kind of medical treatment in Baghdad which demonstrated some link to the Iraq regime. And also Secretary Powell said that this guy was linked to al Qaeda. As I say, I think these links are all rather murky. One thing about this medical treatment in Baghdad, it was supposed to be for an amputated leg he'd suffered in Afghanistan.

Well, it turns out if you looked at that video, he doesn't appear to have an amputated leg in this video. He's certainly a very active person for somebody who has got a missing leg. So there are a lot of things we don't know about Zarqawi. What his exact relationships are to al Qaeda I think remains an open question.

ZAHN: So, Peter, we're looking at a picture right now. Zarqawi is allegedly which man in the picture?

BERGEN: Well, he's the one in the middle who's going to execute Nick Berg. And I haven't seen the whole video, obviously, but he is that man.

ZAHN: But you can't rule out the possibility that he either had a fake leg or some sort of prophylactic device?

(CROSSTALK) BERGEN: That's true. But crippled, people with amputated legs, I can't imagine -- to cut off somebody's neck, it seems you'd have to be quite an active kind of individual.

So I think that the question of whether or not he had an amputated leg or not is sort of in play right now, particularly with this video.

ZAHN: The search for Zarqawi has been pretty intense by a bunch of different intelligence operations. Just bring us up to date on how intense that search has been.

BERGEN: Well, right now, he's got a $10 million award on his head, which I think is representative of the U.S. government's desire to get him. I think he really came on the radar screen starting in 2000 with the millennium plots in Jordan which didn't work out. These were plots to blow up an American-owned hotel in Amman in Jordan, the capital, attack tourist sites associated with Saint John the Baptist, etcetera.

That's when he first came on the radar screen. He came even more on the radar screen in 2002. He's regarded as being behind the assassination of an American diplomat in Jordan, Laurence Foley. And since the beginning of the Iraq war, he's been incredibly active. If we believe this letter, the Zarqawi letter that was found in January 2004, he's behind pretty much every major suicide attack in Iraq, whether it was attacking the United Nations building, attacking the Red Cross, attacking a police barracks with Italians police officers in Nasiriyah in southern Iraq, the Jordanian Embassy. The list goes on and on.

ZAHN: Peter Bergen, we're going to leave it there this evening. Thanks so much for your input tonight.

And we're going to turn now to the continuing fallout from the Iraqi prisoner abuse scandal. Today, Defense Secretary Donald Rumsfeld made a surprise visit to Iraq and the prison at the center of it all. Rumsfeld and Joint Chiefs Chairman General Richard Myers toured Abu Ghraib prison and vowed to punish those guilty of abuse. They also rallied the troops at a town hall meeting in Baghdad.

Let's turn to senior Pentagon correspondent Jamie McIntyre to bring us up to date on Mr. Rumsfeld's surprise trip -- hi, Jamie.


Well, Defense Secretary Rumsfeld said that this idea sort of came up in a discussion that he had with President Bush when he came here to the Pentagon on Monday. We're told it was his idea, Rumsfeld, that is, to get out and see the troops firsthand. He said he wanted to look them in the eye, tell them what a good job they're doing.

He made a point of saying that while he went to see the prison, it was not an inspection tour, it was more a thank you tour and to tell the troops that the Iraq policy was still on track and they had nothing to be ashamed of, despite the scandal about prison abuse. (BEGIN VIDEO CLIP)

RUMSFELD: The people who engaged in abuses will be brought to justice. The world will see how a free system, a democratic system, functions and operates transparently, with no cover-ups, with the world seeing the fact that we're not perfect, and goodness knows we're not perfect. But don't let anyone tell you that America's what's wrong with this world, Because it's not true.


MCINTYRE: Now, en route over to Iraq, Rumsfeld told reporters traveling with him that they're unlikely at the Pentagon to release any further photographs because of the advice from Pentagon attorneys, that that release in itself might violate the Geneva Conventions.

And, oh, as for the rumors that he might resign or step down or be fired, Rumsfeld said simply, "I'm a survivor" -- Paula.

ZAHN: And that he is. Jamie McIntyre, thank you.

Meanwhile, Defense Secretary Rumsfeld had been to Iraq six times before. But this is his first visit as an embattled secretary in the middle of a scandal. Now, the trip's being called a morale booster for troops but there may be other reasons behind it.

CNN Analyst and retired Major General Don Shepperd joins us now to discuss that.

Good to see you, General. Welcome.


ZAHN: So do you view this trip as a brilliant photo-op or in fact an effective bridge building tour?

SHEPPERD: Well, probably some of both, Paula.

It just makes sense for the secretary to do this at the present time. With this scandal, it has stained a brilliant military victory. It stained America. It stained the troops that are over there facing danger every day to day. And he's the leader who's taken responsibility on his watch for this. It makes sense for him to go over there and speak to the troops and say, listen, I love you. America loves you and we're going to get past this thing onward and upward. So I think it's the smart thing to do, Paula.

ZAHN: You served in some fractious places during your long and distinguished military career. What difference does this kind of reaching out to the troops make when it comes to morale?

SHEPPERD: Well look, it doesn't last a long time.

I mean, the troops that were there, it was a small number of troops compared to the people that are in the theater, are going to be uplifted by this and they are going to write home about it. But it doesn't carry them for days. But it is an important setting. It's important to the overall understanding that the troops -- that what the troops are doing, their mission is supported by the secretary, by the president, by the military leaders and by America.

So I think it's important from that standpoint. Morale is something that you've got to be careful. Morale goes up day to day, minute to minute. If they feel good from this, if one of their buddies gets smacked tomorrow, their morale is going to be down. What you want to look for is dispirited troops that don't believe in what they're doing or don't think they're appreciated. And, again, that's what this visit is about.

ZAHN: How many of those dispirited troops do you think are out there?

SHEPPERD: Oh, I think there are some. And, again, if they're dispirited today tomorrow they might be up.

This is a tough situation over there. These guys are getting shot at. They're doing dangerous things. And, again, it was described as a body blow. But this stain by a renegade few people with this mistreatment of POWs, it's been a significant thing for the nation and for the troops.

ZAHN: So how big of a challenge will it be for Secretary Rumsfeld to get things, as in his parlance, back on track?

SHEPPERD: A real challenge.

Getting it back on track means not only getting past this scandal, but getting Iraq back on track and getting some type of exit strategy. We're going to turn over the government on 30 June, by all pronouncements. I think that's going to happen for sure. And the question is, what happens after that? What does the government look like? What is the U.S. role? How do we negotiate that? What do we do? How long do we stay?

All of those are very, very important questions. And I think that's a very important part of this trip. It's not just the morale of the troops, but discussing that with the Coalition Provisional Authority, with the military commanders over there, and, of course, our allies in the coalition and others we're trying to bring on board.

ZAHN: We always appreciate your experienced, broad view there. Major General Don Shepperd, thanks.

SHEPPERD: A pleasure.

ZAHN: The war and the future of Iraq were also the focus on Capitol Hill today. The Bush administration wants more money for Iraq and Afghanistan. But a dispute over the way the war has been waged triggers a heated exchange in a Senate hearing.

Plus, the unreleased images of Iraqis prisoners abused by U.S. troops, the shocking photos of graphic sex and punishment were shown to members of Congress. One senator who saw them gives us his impression.

Yes, the food police are back again tonight. High-carb foods get the blame for spreading waistlines and falling stock prices. Has the anti-carb craze gotten out of hand?


ZAHN: While Defense Secretary Rumsfeld got a warm welcome from the troops in Iraq, his No. 2 man was facing angry questions from the Senate Armed Services Committee.

Deputy Defense Secretary Paul Wolfowitz was there to ask for $25 billion to help pay for operations in Iraq and Afghanistan next year.

And I talked with him about that with Armed Services Committee member Saxby Chambliss, a Republican from Georgia.


ZAHN: I wanted to start off tonight by replaying some of Paul Wolfowitz's testimony from earlier today when he ended up on the defensive about the issue of some of the techniques used on detainees.


SEN. JACK REED (D), RHODE ISLAND: Seventy-two hours without regular sleep, sensory deprivation, which would be a bag over your head for 72 hours, do you think that's humane? And that's what this says, a bag over your head for 72 hours. Is that humane?

PAUL WOLFOWITZ, DEPUTY DEFENSE SECRETARY: Let me come back to what you said...

REED: No, no. Answer the question, Secretary. Is that humane?

WOLFOWITZ: I don't know whether it means a bag over your head for 72 hours, Senator. I don't know. REED: Mr. Secretary, you're non-responsive. Anybody would say putting a bag over someone's head for 72 hours, which is sensory deprivation...

WOLFOWITZ: I believe it's not humane. It strikes me as not humane, Senator.

REED: Thank you very much.


ZAHN: Senator Chambliss, was that an acceptable answer?

SEN. SAXBY CHAMBLISS (R), GEORGIA: Well, I think at the end of the day he said, yes, that he did not agree that that would be humane.

That is one of the guidelines, Paula, that is set forth in the rules of interrogation issued by General Sanchez relative to the treatment of prisoners in Iraq. There's a set of circumstances that the Army can use in interrogation without approval of General Sanchez. And then there's another set of circumstances that if they're going to go beyond those initial means of interrogation, they have to get approval of General Sanchez. That was the underlying issue that they were discussing here.

ZAHN: You have seen the pictures, the ones that the public has not seen yet. Can you describe to us what story they tell?

CHAMBLISS: Well, they tell the story of some dysfunctional members of the United States Army who were totally undisciplined. They required these prisoners to sit naked, apparently on a regular basis within this two- or three-week period, whatever it was.

They required them to carry out some acts or at least simulate some individual acts of sexual activity that are simply not appropriate under any circumstances inside or outside the United States military. A number of other very grotesque photographs were in there and again illustrated the fact that this group was totally undisciplined. They were not the regular Army soldiers, or operating as Army soldiers regularly operate. So they were totally dysfunctional.

ZAHN: On to the issue of financing the ongoing efforts in Afghanistan and Iraq, Mr. Wolfowitz saying initially he will be asking for $25 billion and then perhaps another $25 billion sometime next year. What does the American public need to understand tonight about what this will ultimately cost them financially?

CHAMBLISS: Well, I wish we could say tonight that this operation was going to cost X number of dollars, this is what we're going to budget for, this is what we're going to spend. Unfortunately, we can't decide that.

We know that this is a stopgap measure, that they're asking us to let them have this money for a short term, basically between now and the end of the year. And during that period of time, they're going to be required to come back and be much more definite about how much this war is going to cost for the future. They're going to have to say, we anticipate that we'll reduce the level of troop strength by X number of troops at some point in time. Therefore, the cost of maintenance is going to start decreasing at some point.

I think that they can expect those hard questions to be asked and then they have to come forward with positive answers relative to that.

ZAHN: Senator, do you believe the Pentagon is intentionally leaving a lot of the specifics out because we're running into an election cycle here?

CHAMBLISS: No, I don't think so. And it's certainly not unreasonable for the committee, as we did in a bipartisan way, to say, hey, we're not going to give you a blank check. This is $25 billion. Even in Washington, D.C., that's a lot of money.

ZAHN: Senator Saxby Chambliss, thanks for joining us tonight.

CHAMBLISS: Good to be with you, Paula. (END VIDEOTAPE)

ZAHN: Meanwhile, questions about interrogation techniques are landing in the doorstep of the CIA. Has the agency been torturing al Qaeda suspects to get them to talk? And should it be allowed to do that?

Also, for the first time since Vietnam, the military is going public with the number of enemy dead. We'll show you why coming up.


ZAHN: And we're back, 25 minutes past the hour.

Even as controversy over prisoner abuse in Iraq continues to grow, a new report raises questions about the Central Intelligence Agency's interrogation methods and whether they amount to torture.

National security correspondent David Ensor has been looking into that.

Hi, David.


This has to do with the interrogation of al Qaeda leaders who are being held in undisclosed locations overseas by the CIA. U.S. officials are confirming that shortly after the 9/11 attacks President Bush decided that such prisoners should not be covered by the Geneva Convention, and he approved some specific types of pressure that could be used against them.

Now, officials deny that these kinds of pressures amount to torture. But not everybody agrees with that. "The New York Times" is reporting that in the case of 9/11 mastermind Khalid Shaikh Mohammed, who we just had up on the screen a moment ago, interrogators have used a technique known as water-boarding in which a prisoner is strapped down, forcibly pushed underwater, and made to believe he might drown.

Administration and CIA officials refuse to comment on that report, but former officials say they know that the new kinds of pressure include sleep deprivation, use of heat, cold, light, and loud noise.

U.S. officials now tell me that they're confident that Khalid Shaikh Mohammed personally murdered "Wall Street Journal" reporter Danny Pearl by beheading him. And one official says that he would not worry too much if Pearl's killer suffered -- quote -- "a bit of discomfort" during interrogation.

But in the wake of the current scandal about the abuse photos in Iraq, there are calls for a ban on any kind of use of such techniques that might be illegal under the Geneva Conventions, even in the case of these terrorist leaders.


SEN. DIANNE FEINSTEIN (D), CALIFORNIA: We've got a certain moral imprimatur. We can't be hypocrites. We can't go out there and say one thing and do anything and debase ourselves and debase our own people. We can win this thing if we keep our eye on the ball.


ENSOR: Now, the Bush administration strongly rejecting that. Officials arguing that al Qaeda did not sign the Geneva Conventions and it is not obeying them.


STEPHEN CAMBONE, UNDERSECRETARY OF DEFENSE FOR INTELLIGENCE: Terrorists don't care about the Geneva Convention, nor do they abide by its guidelines. They deliberately target civilians, for example, and have brutalized and murdered innocent Americans. To grant terrorists the rights they so cruelly reject would make a mockery of the Geneva Conventions.


ENSOR: So they have two views on what's right in this very tricky matter -- Paula.

ZAHN: David Ensor, thanks for setting the record straight there. Appreciate it.

Now, the worst of the Iraq prison photos are still under lock and key. The Pentagon says they're being tightly guarded for legal reasons. But is that just an excuse? We'll ask our legal analyst, Jeffrey Toobin.

And we used to call them comfort foods, yes, like the kind of food ma used to make us all. Well, now Americans are kicking the carb habit. But have we gone overboard?

And tomorrow, divided emotions for Iraqi-Americans, how do they feel about the prison abuse scandal? We'll hear one man's story tomorrow.


ZAHN: And at the bottom of the hour here, here's what you need to know right now. India will soon have a new leader. In a surprise, voters in the world's largest democracy handed power over to the opposition party and revived a legendary political dynasty. The party leader, Italian-born Sonia Gandhi, is poised to replace the outgoing prime minister there. Mr.s Gandhi is the daughter-in-law of former Prime Minister Indira Gandhi.

A federal judge has rejected a last minute effort by conservative groups to block gay marriages from becoming legal in Massachusetts. The group says they will appeal. Some sex marriages -- or same-sex marriages, are set to become legal in Massachusetts next week. And heavy rains flooded parts of Texas. In Robertson County, about 50 miles Southeast of Waco, intense thunderstorms today dumped up to a foot of rain within a four to five-hour period. What a mess. Reports of up to 60 to 100 flooded homes.

Tonight, we are beginning to get more graphic details, more outrage about what is in the unreleased photographs of the abuse of Iraqi prisoners. The details come from members of the Senate and House who have been allowed to view the pictures.

One of those senators joins us now from Washington. Oregon Democrat Ron Wyden, a member of the Intelligence Committee. Welcome, sir, always good to see you.

So, what was your initial reaction to the pictures?

SEN. RON WYDEN, (D) OREGON: Well, it was just a horrible week for watching the news. It began, of course, with this barbaric beheading of Nick Berg. And just yesterday, we saw these sickening pictures of the prisoners. Paula, they're very graphic. They show every manner of physical and sexual abuse. What looks like wounds from dog bites in the case of one male detainee. It looks like he's being banged against a cell. You just say to yourself, how far could somebody go in a situation like this?

ZAHN: I guess a lot of your colleagues were quite struck by the sexual nature of these pictures. We've heard descriptions of prisoners being forced to have sex with each other, being made to masturbate. Of army personnel having sex with each other. Were you surprised by the sexual content of these photos?

WYDEN: I was. I went in there anticipating the worst. I think it's fair to say what I saw was terrible multiplied several times over. It just seems to me that now we've got to go on to the central questions about what it's going to take to establish a zero tolerance for the future.

I saw acts that indicated that the people involved seemed to know an awful lot about embarrassment and torture. And it's hard to see how people upstairs didn't know something about this.

ZAHN: So, what does that suggest to you Senator?

WYDEN: I think what we have to do now is come as clean as possible, as quickly as possible. There's got to be full accountability. And that means the chips fall all the way up to the top if that's the case. Then we have to work harder to try to internationalize the conflict.

There's going to be a request for additional funds. You've already been reporting that. I don't want to begrudge our troops a penny. They desperately need better equipment. But I'll tell you, these contractors, for example, are getting away with some outlandish practices. Congress has got to crack down on them.

ZAHN: And that's certainly a number of your colleagues are asking for today, not writing a blank check there and having some control over the way the money is spent.

I want to come back to something you mentioned about, it would be surprising for you to find out that the higher-ups knew nothing about this. Are you telling us tonight you think there was a cover-up involved?

WYDEN: I'm not, but I don't think these things happen by osmosis. Somewhere along the way, people seemed to learn a fair amount about how to inflict embarrassment and torture. And that's why I think this needs to be a very thorough investigation.

And what this needs to be about is accountability. If the higher-ups were involved, they have to be held accountable just as everyone else does. I heard earlier today someone say, I was just following orders. If that's the case, then those were bad orders. It doesn't absolve the individual. But again, it strengthens the case why you have to look up the chain of command for accountability.

ZAHN: Are you confident that that's going to happen?

WYDEN: I and other members of the United States Senate are going to insist on it. American values are at stake here, Paula. We've got to get to the bottom of this.

ZAHN: And a final question about the pictures. Do you think the most graphic of the pictures you've just seen, pictures that are under lock and key, should ultimately be shared with the public?

WYDEN: It's a very tough call. But I have reluctantly come to the conclusion that those pictures ought to be given to the media. They ought to be asked to use them responsibly. They're going to come out anyway. And ultimately, if our country is making the case that we want more openness and more democracy in Iraq, we can't handle this in a secret fashion.

ZAHN: Senator Wyden, thank you for joining us at the end of a very long and challenging day. Appreciate it.

WYDEN: Thank you.

ZAHN: Meanwhile, Defense Secretary Rumsfeld today cited some legal reasons for not releasing the rest of the photos of abuse of Iraqi prisoners.


DONALD RUMSFELD, DEFENSE SECRETARY: My first choice would be to release them. But it's my understanding that at the present time, the people who have an obligation to take into account privacy issues, legal requirements under privacy laws, and Geneva Convention, are advising against it.


ZAHN: So, how strong is the legal argument here? Are we talking about an excuse to keep the pictures from causing even more embarrassment? Joining us now to look at all of this, senior legal analyst Jeffrey Toobin. Which of the two is it?

JEFFREY TOOBIN, CNN LEGAL ANALYST: It's a policy decision. I don't think it is compelled.

ZAHN: Oh, come on.

TOOBIN: No, really. I don't think it's compelled either way. No, it's right, I should be a politician the way I'm ducking it. There are legal reasons that you can cite on either side.

Let's look at the argument by the administration. They say the Geneva Convention compels privacy here. And they cite one specific provision, which I believe we have up on the screen. And it says, prisoners of war must at all times be protected, particularly against acts of violence or intimidation, and against insults and public curiosity.

ZAHN: So the Pentagon is on firm legal ground on this one?

TOOBIN: Well, not clear. Because this is a pretty vague section. And there is some irony here in the Bush administration citing the Geneva Conventions, which they have often said the Geneva Conventions don't apply in the war on terrorism. But it is certainly a legitimate argument.

Also you have the issue of pretrial publicity for the court martials coming up. That -- the soldiers who are being charged, have the right not to have too much unfair pretrial publicity. That's one argument.

ZAHN: But how much more tainted can they be than they already are from the first batch of pictures that have been made public?

TOOBIN: That's one of the arguments on the other side. And the other argument in favor of disclosure is made by Senator Wyden there, that our values compel disclosure here. That we have to show that we're not covering up, we have nothing to hide.

ZAHN: Do you personally agree with the transparency issue?

TOOBIN: I haven't seen the photos. Sorry, I keep weaseling on you here. What I thought was interesting, Senator Schumer, yesterday, said -- Senator Schumer of New York went into those secret viewings of the photographs thinking, you know I think they should be disclosed. He came out saying, they're too awful, let's got disclose them.

For example, some of them I don't think should be disclosed. There are some photographs of members of the American military having sex with each other. So what?

ZAHN: Those are less indicting than the pictures of them actually humiliating prisoners is what you're saying.

TOOBIN: Right. This is about prisoners, this is about abuse of prisoners. It's weird...

ZAHN: But you can't say that's model behavior for the guards.

TOOBIN: Well, it's not, but that's not a scandal of national proportions. What this is really about is showing the world that we're not afraid to wash our dirty linen in public. It looks like the administration is not going to.

The other point is, they don't know where all these photographs are. These are out on the Internet somewhere, they were digital photographs passed around among soldiers, family members may have some. So we may be setting up for disclosure after disclosure, keeping the story alive for longer than the administration would like.

ZAHN: I need a brief answer, can these defendants get a fair trial?

TOOBIN: Yes. Yes, they can. It's going to be difficult and it's going to take a lot of jury instructions to the military juries, but I do think they can get a fair trial.

ZAHN: You finally answered one of my questions tonight, Jeffrey. Thank you for saving me in the end.

TOOBIN: I did one.

ZAHN: You can still come back tomorrow.

TOOBIN: Oh, thank you.

ZAHN: Jeffrey Toobin, thanks.

Coming up, an about-face from the Pentagon. Now it is keeping count of enemy war casualties. We're going to find out what's behind the change.

And banishing carbohydrates from the American diet, why this latest food fad may have gone just a bit too far.


ZAHN: Before dawn today in Iraq, U.S. forces traded fire with suspected militia members loyal to radical cleric Muqtada al-Sadr killing three of them. Two other militia men were killed in fighting at an Iraqi police station in Najaf. The fact that the military is now telling us the number of Iraqis killed is a big change, as we hear now from Bruce Morton.


BRUCE MORTON, CNN CORRESPONDENT: At the Pentagon, they were adamant, we don't do enemy body counts.

GEN. PETER PACE, VICE CHAIRMAN, JOINT CHIEFS OF STAFF: I will not get into X number dead versus Y number dead. That's not what we do. That's not what this is about.

MORTON: In Baghdad this week, that's exactly what they were doing.

BRIG. GEN. MARK KIMMITT, U.S. ARMY: Total (UNINTELLIGIBLE) of the last 24 hours from the numerous engagements in Sadr City resulted in 35 enemy killed, two enemy wounded, and four coalition soldiers wounded who have been returned to duty.

MORTON: They've even talked about how they do it.

GEN. MARTIN DEMPSEY, U.S. ARMY: We spend a lot of time canvassing hospitals for two reasons. One is to find out about civilian casualties. To find out about militia men we've wounded. If we find them in the hospital wounded, as soon as they're back on their feet, we take them into custody. Then as far as the -- those killed in action, we generally make that assessment on the ground at the time.

MORTON: The change happened when the war turned into terror attacks and close quarters fighting in cities. CNN's Jamie McIntyre reported last April 15.

JAMIE MCINTYRE, CNN CORRESPONDENT: The Pentagon estimates during the same time, between 1,500 and 2,000 enemy fighters have been killed.

MORTON: What's changed? Well, one thing when you're moving quickly around in Afghanistan or driving as hard as you can toward Baghdad, it's hard to keep an accurate count. It's much easier when you're fighting in a city. Another, body counts got a bad name in Vietnam. Local commanders knew their bosses wanted high counts and often padded numbers. And anyway it wasn't a good measure of how the war was going. But now?

MICHAEL O'HANLON, BROOKINGS INSTITUTION: Apparently there's a possibility in many viewers' eyes that we just aren't able to win street by street, city by city, when these battles occur and the military wants to drive home we are actually reducing the enemies' forces quite a bit. I think they also want to make that point to the Iraqi people. So that if there's any concern about the resistance being unchecked as the transfer of sovereignty date approaches, Iraqis are reassured that in fact we are making some progress.

MORTON: It's still a bad way to measure progress. The guerillas lose the firefights but does that weaken them or bring them more recruits? Bruce Morton, CNN, Washington.


ZAHN: For more on the significance of the enemy casualty count, I'm joined by one of the people we just saw in Bruce Morton's report, Michael O'Hanlon, a senior fellow in foreign policy studies for the Brookings Institution. He joins me tonight from Washington. Welcome Michael, good to see you.

Here's what I don't get. You've got the vice chairman of the joint chiefs of staff saying that body counts are counterproductive and even dangerous for our troops. But now this change in policy. Why?

O'HANLON: They're counterproductive if you make this the No. 1 metric of progress. In any counterinsurgency, first of all, you're not sure how many people you're killing. Secondly, sometimes you're killing innocent people. You don't want to gloat over that. And third, we learned in Vietnam, even if you kill a lot of the enemy, they may regenerate, they may recruit more members of the resistance faster than you can reduce their number.

So it's not a good way to think about progress. On the other hand, if you come out of one of these battles like Fallujah and it looks to the whole world as if you just leveled the city and didn't accomplish much, that can be bad for the sense of confidence you're trying to convey about progress on the ground. I think the military gives out snippets of body counts when it decides it's important for the psychology of the operation in American and Iraqi eyes.

ZAHN: Are you telling me tonight, Michael, this is all about public relations, how it plays here and Iraq?

O'HANLON: Yes. I think when you talk about casualty estimates, it's really about managing the perception of progress. Because we are always tracking data on how many people we think we killed, how many we think we wounded, how many we arrested, who is probably guilty, who might have been an unintentional casualty. We've been tracking data on this since day one, and at Brookings, we've actually been going back into the Pentagon briefings and getting the daily information and putting it all together in a way the military doesn't usually want to. The data's always there. The question is, when and how do you talk about it? That's really the only thing that changes.

ZAHN: So Michael, clearly Americans are going to have a visceral reaction to the enemy body count. But they also have a very strong reaction to the terrible loss of American life we have seen over the last several months. So how does the administration strike any kind of balance here?

O'HANLON: The administration needs to be sensitive to wherever the war is at that moment. If there's a perception that we're using too much firepower and killing too many Iraqis, they need to be careful about bragging or seeming to gloat about how many of the enemy we've killed, even if we've killed bad guys who really are part of this resistance. On the other hand, if there's a perception of American weakness, fecklessness, that we aren't capable of stabilizing Iraq, of rooting out the resistance, and the Iraqi population therefore is nervous about the progress of this war and the American population is nervous, the administration has to prove that we are in fact winning some of these firefights.

ZAHN: Finally, tonight, do you think that strategy makes sense?

O'HANLON: I think right now it's the only thing we can do. We are in a bad position. I think the overall developments in the last two months, not just Abu Ghraib but the Fallujah attacks, have been very bad for the United States. I think we've appeared to be too violent in some situations in Fallujah. I also think that when we back down a little, or change strategy, we risk creating a perception of weakness. And a perception we were not making progress, even in these firefights that we're supposed to be good at winning. I think we did have to send a message to the Iraqi population and the American public that we are still doing pretty well in these firefights to encourage people to realize we will prevail and they better not take up arms against us. I think at the moment it's the only option we have.

ZAHN: Thank you for your thoughtful analysis tonight.

Now the departure you've been waiting for. To the lighter side of life. Many Americans are more determined than ever to crush out carbs. Say it ain't so. Just how much of this latest diet fad is based on fact?


UNIDENTIFIED MALE: Are you now or have you ever been a consumer of carbs?




ZAHN: Are you hungry?

Nobody's talking about passing a constitutional amendment against eating carbohydrates. Lovers of pasta, doughnuts, bread, and beer may be feeling they need to go underground to pig out.

Bruce Burkhardt reports.


BRUCE BURKHARDT, CNN CORRESPONDENT (voice-over): It looks like a pleasant springtime lunch scene. But beware, there is an enemy among us.

UNIDENTIFIED MALE: This doesn't look low carb to me. Carbs, carbs, carbs! Bread, bread, bread!

UNIDENTIFIED MALE: Is that a potato?

BURKHARDT: It's a if there's a new kind of McCarthyism going on -- food McCarthyism. Maybe MacCarbyism.

(on camera): Are you now or have you ever been a consumer of carbs?


BURKHARDT (voice-over): It is out of hand. When was the last time a diet craze affected the stock market?

UNIDENTIFIED MALE: Take a look at the stock that is down today by almost 28 percent right now, losing 9 bucks a share.

BURKHARDT: Guilt by carb association. There's a new kind of black list. Food processors and restaurants want to stay off of it. The orange juice, even the beer industry, had to publicly defend themselves against charging of pedalling carb-carrying products.

FRANCINE KATZ, ANHEUSER-BUSCH: We realize the south beach diet has helped many people lose weight but it doesn't change the fact that, Dr. Atkinson's advice about beer is absolutely wrong.

BURKHARDT: Imagine that, attacking beer.

UNIDENTIFIED MALE: Have you no sense of decency, sir?

BURKHARDT: No other diet fad, Scarsdale, Weight Watchers, Jenny Craig, none of them have spread tentacles into the culture like this one.

Low carb stores, low carb magazines, with fascinating stories like top 10 low carb cities. There's low carb Web sites. And of course all the food product is with low carb come-ons.

UNIDENTIFIED FEMALE: Would you like the salad today?

UNIDENTIFIED FEMALE: I'm not carb counter but I'm watching my fat.

BURKHARDT: At Subway, which like many chains offers a low carb alternative, a wrap instead of a bun, nutritionist Kimberly Glenn believes this too shall pass.

KIMBERLY GLENN, REGISTERED DIETITIAN: I think happened with this low carb craze is people for when-got about calories and fat, and they both count.

BURKHARDT: There's only one solution -- eat less. Tough advice to follow.

(on camera): Are you going to eat that?

(voice-over): Bruce Burkhardt, CNN, Atlanta.


ZAHN: Go, Bruce! He ate the bread around that. I like that.

Could this be another giant leap for mankind?

It may not look like a space shuttle, or the Enterprise, but this small craft set a new record today. We'll look at space history in the making.


ZAHN: Finally tonight, if you have ever dreamed of going into space the dream is a little closer to reality. A team trying to be the first private company to send a person into space and cash in on space tourism, set a record today in a test flight over the Mojave Desert. A craft called Spaceship 1 reached a height of 40 miles, that's 212,000 feet. That also set a civilian altitude record. The pilot, 62-year-old Mike Melville, was briefly weightless and when got back safely, he said seeing the sky go from blue to black was the thrill of his life. And he's seen a lot of thrilling flying as fast as he has over his lifetime.

And we want thank you all for being with us tonight. We appreciate your dropping by. We continue our coverage of the prison scandal and the fallout. Tomorrow we explore how Iraqi-Americans view this scandal.

"LARRY KING LIVE" is next, Dr. Phil is his guest. Again thanks for joining us tonight, have a real good night.


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