updated 12/20/2005 2:32:09 PM ET 2005-12-20T19:32:09

Guests: John Ayllon, Mike Torres, Luis Diaz, Jim Burnett, Annette Brown, Jay Johnson, Alberto Braunstein, David Rivkin, David Cole

DAN ABRAMS, HOST:  Coming up, more live coverage of that plane crash in Miami Beach.  And President Bush takes on the press, defending his decision to authorize secret eavesdropping on Americans without any court supervision. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The president admits he did it, saying it was necessary to protect Americans.  But says it‘s shameful that someone leaked it to the media. 

And captured, the fake New York City fireman accused of sexually abusing a New York City fashion writer busted in dramatic fashion in Memphis, Tennessee.  We‘ll talk to the woman who called in the tip.  And we‘re joined by suspect Peter Braunstein‘s father who just tried to meet with his son. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  We‘ll get to all of that in a moment.  But first that breaking news off the coast of Miami Beach.  A seaplane carrying what we believe was 20 people has crashed in the Biscayne Bay.  Within the hour, officials held a press conference and said despite their best efforts, no survivors.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Two of our ocean rescue lifeguards, they were on duty.  What they witnessed was a plane heading out.  They witnessed a plane with a lot of smoke coming from the engines and at some point, very briefly, that was what they believed to be an explosion of what appeared to be an explosion.  One wing they thought might have came off and then the plane headed straight down into the water. 

Immediately they called it in and reported it so that we can get our emergency units responding as quickly as possible.  They actually went out with the intent of trying to find survivors.  Unfortunately, it did not happen.  The area is kind of contained.  The fuselage went down into the water, even though it‘s broken up somewhat, but it is still basically, it‘s not spewed all over the place.  So they have been able to go in with the dive teams and have been able to recover all of the 19 victims. 

UNIDENTIFIED MALE:  My understanding, we don‘t have the manifest in our hands, but it‘s alleged there‘s 17 passengers and two crewmembers. 

(END VIDEO CLIP)

ABRAMS:  Joining me now are two eyewitnesses to this event, Mike Torres and John Ayllon who both were there when the crash occurred and they join us now by phone.  Gentlemen thanks a lot for joining us.  We appreciate it.

All right, John, let me start with you.  What did you see?  Where were you? 

JOHN AYLLON, WITNESSED PLANE CRASH (via phone):  (INAUDIBLE) about 100 yards from the pier when the plane crashed into the water.  What we observed was the plane taking off.  It was pretty low to the ground at that point and one of the—we saw an explosion on the right wing and the plane tilted to the right a little.  I don‘t know whether or not the pilot tried to regain control of the plane. 

But within seconds, a second explosion, a ball of fire covered the entire plane and at that point all we observed was basically a plane going into the water.  We could not see the front of the plane or the tail of the plane nor the wings.  It was just a huge fireball going into the water. 

ABRAMS:  So when we see this picture, John, of what appears to be smoke following the plane, that mirrors what you remember seeing, correct?  Meaning, you saw the plane appear to be on fire? 

AYLLON:  Yes.  The plane was on fire before it hit the water. 

Basically—yes.  Correct. 

ABRAMS:  Mike Torres joins us as well.  Mike, where were you when this occurred? 

MIKE TORRES, WITNESSED PLANE CRASH (via phone):  I was actually talking to John.  John is a co-worker of mine and we were looking in that direction when the plane came into our view and the tail end was already on fire and the plane was losing control when we actually saw the bottom of the plane.  That‘s how we knew it was a seaplane and when it seemed like the pilot tried to you know gain control of the plane, he straightened it out and right there is when one of the wings snapped off and that caused the second explosion, which caused a big ball of fire that engulfed the whole plane.

ABRAMS:  John, you say that you saw the plane take off.  Were you watching in that area as the plane took off?  I mean were you guys just sitting?  Were you driving?  What were you doing at the time? 

UNIDENTIFIED MALE:  (INAUDIBLE)

ABRAMS:  John...

UNIDENTIFIED MALE:  You talking to me, Mike or John...

ABRAMS:  John, go ahead...

TORRES:  ... with MSNBC right now.

ABRAMS:  I think Mike is talking to somebody else.  Mike, we can hear you saying that, Mike, so just hang on one sec.  John, go ahead.

AYLLON:  Yes, I‘m sorry I didn‘t hear your question...

ABRAMS:  I was asking you were you watching the plane take off?  I mean you said you saw the plane take off and you described it being very low to the water.  I‘m just wondering were you looking out at the time?  Were you driving?  Did you happen to be looking at the water? 

AYLLON:  We were looking south into that direction.  We didn‘t see the plane taking off.  It was just maybe seconds from taking off.  It was very low from the ground.  And immediately after it hit the south point of the pier, that‘s when the plane engulfed in flames.  We did not—I did not see the plane taking off at that point. 

ABRAMS:  OK.  And Mike, the fire chief described during the press conference an explosion.  He said a wing may have come off.  Did you also see the explosion?

TORRES:  Well that‘s correct, sir.  The plane was already descending with the tail on fire and the pilot was trying to gain control, avoid you know the beachgoers, and when he tried to straighten out the plane, the wing snapped off.  That caused a second explosion.  The ball of flames engulfed the whole plane and went probably another 50, 75 yards before it nose-dived into the water. 

ABRAMS:  So this plane at the time was very close to the shore, right?

TORRES:  That‘s correct, sir.

AYLLON:  Yes.

ABRAMS:  And John, were there a lot people on the beach at the time?

AYLLON:  There were a lot of surfers because it was a perfect you know day for surfing.  But no, that—on that side of the beach were (INAUDIBLE) people.  I would say about seven, 11 -- there were about seven surfers that jumped into the water with their boards to see whether or not they could rescue anybody, but they didn‘t see anybody into the water.  I guess the plane submerged all the way into the ocean at that point. 

ABRAMS:  So you saw people actually witness this and then immediately go out and try and help? 

AYLLON:  That‘s correct. 

(CROSSTALK)

AYLLON:  At least about 20 surfers going into that direction right after it happened.

ABRAMS:  All right.  John and Mike, thanks a lot for taking the time. 

We appreciate it.

UNIDENTIFIED MALE:  Thank you...

TORRES:  John, are you there? 

ABRAMS:  All right.  You guys are going to have to talk off the air. 

So thank you both.  Appreciate it. 

Let‘s go to Luis Diaz, a spokesperson with the U.S. Coast Guard.  All right.  If you can take us from there, Mr. Diaz, so the plane crashes.  My understanding is some members of the Coast Guard saw this happen? 

LUIS DIAZ, U.S. COAST GUARD SPOKESMAN (via phone):  They may have.  We haven‘t spoken to all of our crewmembers at the station at Miami Beach.  We did have one of our petty officers from our office (INAUDIBLE) at the site, doing an interview with another TV station.  He observed the aircraft go by and then learned later that it had crashed.  Currently, the Coast Guard has two small boats and the Coast Guard (INAUDIBLE) and helicopter on—at the crash site looking for survivors.  So far 19 of the 20 persons aboard this aircraft have been recovered, 18 passengers and two crewmembers.  So far, as I say (INAUDIBLE) 19 have been recovered. 

ABRAMS:  So is there still hope that one person could be alive? 

DIAZ:  It would be wonderful, especially during the holidays.  So far, it‘s not looking very good.  But we continue to have our assets on scene along with other assets from other agencies. 

ABRAMS:  And I‘ve got to believe based on the timing of this, the fact that this plane was fairly close to the shore, that so many people witnessed it so quickly that your boats were out there pretty quickly.

DIAZ:  That is correct.  In fact, it‘s only several hundred yards away from the Coast Guard facility units.  Soon as they were notified, the alarm sounded.  They ran to their boats and our vessel—our boats were on scene in a matter of minutes.  Unfortunately, no survivors at the present moment. 

ABRAMS:  Do you have information on the ages of those who were on the plane? 

DIAZ:  No, we don‘t.  We understand there were 18 passengers and two crewmembers and of passengers, three of them may have been children.  That information most likely will have to come from Chalks Airline, International Airlines. 

ABRAMS:  Right.

DIAZ:  The aircraft had just departed.  They were in the channel as the aircraft normally does depart.  It was en route (INAUDIBLE) Bahamas. 

ABRAMS:  Luis Diaz thank you very much for taking the time.  I know you‘ve got a busy time.  Thanks a lot.

DIAZ:  OK.

ABRAMS:  Now joining us by phone is Jim Burnett, former chairman of the NTSB.  They will certainly be investigating the cause of this crash.  And Jim, thank you for taking the time. 

Let me tell you what we know, because I know a guy like you doesn‘t want to do a lot speculation.  So what we know is that the fire chief says that there was an explosion and one wing may have come off.  That the plane headed down to the water, skies were cloudy, no rain or lightning in the area at the time of the crash.  Talk to us generally about those sort of facts and what that could indicate. 

JIM BURNETT, FORMER NTSB CHAIRMAN (via phone):  Well, first, there

have been many plane crashes that I‘ve observed and investigated where

there have been reports of explosions from highly credible people that were

in which there were in fact not explosions. 

ABRAMS:  OK.

BURNETT:  There—a lot of noise is coming from an airplane in

trouble that can be mistaken from—for explosions.  For instance, there -

compressor stalls and the—and engines, this is a turbine engine airplane as I understand it.  So, it could simulate the noise of an explosion.

In fact, one witness was reported as saying it was a (INAUDIBLE), not an explosion.  And also reports of fire are very frequent when in fact there were not fires.  Now, that‘s not to belittle those reports.  They‘re very important clues and hopefully the examination of the wreckage will be able to confirm the reports or at least shed a more accurate light on them.  But we need to be careful about speculating based on the assumption that there was an explosion. 

ABRAMS:  Jim, let me ask you this.  What is that picture—I think you‘ve seen it at this point.  Have you seen this photo? 

BURNETT:  No, I have not. 

ABRAMS:  OK.

BURNETT:  I have not had access to television...

ABRAMS:  OK.

BURNETT:  ... since I got this report. 

ABRAMS:  And you‘re—all right you‘re on a cell phone now, so you can‘t see it, but let me describe it to you.  We are showing a picture right now that was taken where you see what appears to be a sort of a plume of smoke and it seems to trail the direction of the plane and the smoke seems to become less significant by the time the plane hits the water.  So you‘re talking about a picture with a larger amount of smoke in an area which appears to mirror the direction of the plane, followed by less smoke as it goes down and still what appears to be a little bit of smoke as it hits the water. 

BURNETT:  Well of course that—of course, locating the source of the smoke would—is important whether it‘s coming from an engine or whether it‘s coming from the airplane itself.  And those circumstances would suggest different things...

ABRAMS:  Fair enough.  Fair enough. 

(CROSSTALK)

ABRAMS:  You can‘t see the pictures...

(CROSSTALK)

ABRAMS:  Let me—Jim, final question.  The plane was manufactured in 1947.  It got its airworthiness certificate on July 17, 1956.  This is a seaplane, but it sounds like an awfully old plane.

BURNETT:  Well that is old to be in commercial service.  It not necessarily means—it doesn‘t necessarily mean it was unsafe.  But that is—it‘s not a modern aircraft.  And I was looking at my copy—in fact, I have it in my hand, the copy of James (ph), guide to aircraft and I don‘t find it in there.  So this is a plane that‘s been around a long time.  However, we‘ve—the Safety Board has investigated D.C. (ph) three accidents, and the Ricky Nelson accident was an example of that, involving planes that are of that vintage. 

ABRAMS:  All right, Jim Burnett, this is why we have you on the show, to keep us—you keep us honest, and you can provide all that experience and putting this into context.  We appreciate it.  Thanks a lot.

BURNETT:  Thank you.

ABRAMS:  Coming up, that New York City fake fireman accused of sexually assaulting a woman for more than 12 hours, finally captured in Memphis, tipped off by a woman who recognized his face from TV reports.  She says when she saw him was the scariest day of her life.  She joins us.

Plus, the suspect, Peter Braunstein‘s father, we told him about the news about his son being captured on Friday.  He was in Memphis.  His son refused to speak with him.  He joins us live. 

And President Bush admits a super secret national agency been spying on Americans.  Some are asking and the press asked today, did he break the law?  Well, did he? 

Your e-mails abramsreport@msnbc.com.  Remember to include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Busted.  The man suspected in that horrible 13-hour New York City Halloween sex assault is now behind bars.  Peter Braunstein had been on the run since the attack, traveling from New York, New Jersey, to Ohio and ending up in Memphis, Tennessee where a student on the University of Memphis campus spotted Braunstein.  Now Braunstein waved extradition this afternoon, is expected back in New York tonight. 

NBC‘s Pat Dawson has the story. 

(BEGIN VIDEOTAPE)

PAT DAWSON, NBC NEWS CORRESPONDENT (voice-over):  Peter Braunstein‘s six weeks on the run ended on a Memphis sidewalk and as the police closed in, Braunstein nearly ended his life there too.

WESLEY GIFFORD, EYEWITNESS:  Eventually, the guy turned his back to the cop and stabbed himself in the right side of his throat.  He went down, started bleeding everywhere. 

DAWSON:  Braunstein survived and spent the weekend in a Memphis hospital.  Today, he faces kidnapping, sexual assault and burglary from a bizarre attack Halloween night in New York.  Police believe Braunstein set a small fire in this Manhattan apartment building, then posing in firefighter gear he allegedly purchased on eBay, forced his way into a woman‘s apartment, drugged her and abused her for more than 13 hours. 

(SOUNDS)

DAWSON:  The crime triggered a massive search, then a torrent of media coverage where investigators focused on Braunstein, a 42-year-old writer who‘d worked at the same fashion magazine as the victim.  Sightings were reported all over the city.  But each time New York cops came close to catching him, Braunstein slipped away...

UNIDENTIFIED MALE:  ... was finally getting the attention he craved.

DAWSON:  “America‘s Most Wanted” featured the Braunstein story.  A student at the University of Memphis recognized him from the show and called police. 

UNIDENTIFIED MALE:  It actually worked out in this case.  Some girl saw that guy and recognized him from the video and she called the police here on campus and they took care of it. 

DAWSON:  Braunstein‘s bond is set at $1 million, but his story is still unfolding.  He reportedly carried a journal containing explicit details of his crime. 

ALBERTO BRAUNSTEIN, PETER BRAUNSTEIN‘S FATHER:  Limelight is important to him and he had his—more than his 15 minutes of fame. 

DAWSON:  Fifteen minutes, six weeks on the run and a growing legend, even after the dramatic arrest. 

Pat Dawson, NBC News, New York. 

(END VIDEOTAPE)

ABRAMS:  Joining me now is Annette Brown, the woman who spotted Braunstein on Friday and notified the authorities.  And Jay Johnson is the University of Memphis police officer who responded to the call.  Thank you both very much for joining us.  We appreciate it. 

UNIDENTIFIED MALE:  You‘re welcome.

UNIDENTIFIED FEMALE:  You‘re welcome.

ABRAMS:  All right.  Annette, let me start with you.  Tell me about what you saw. 

ANNETTE BROWN, RECOGNIZED “FAKE FIREFIGHTER”:  I was standing on Patterson Street, talking on my cell phone to my sister.  We had lunch plans and I was going to give her directions to where I was when this gentleman come across the street and he had a familiar look about him.  I couldn‘t put my finger on it but it wasn‘t until he got on the curb and he was walking past me that he looked up into my face and when our eyes met, I immediately knew why he was so familiar.  He was the guy from “America‘s Most Wanted”. 

ABRAMS:  So you had just seen him on that one program? 

BROWN:  No, he - obviously (INAUDIBLE) some other footage, you know some more airtime somewhere. 

ABRAMS:  Right.

BROWN:  I was watching “America‘s Most Wanted” and I also saw him on a local news station here in Memphis.

ABRAMS:  And so you see him and right away, do you say to yourself, all right, that‘s definitely the guy or are you saying to yourself, God, it kind of looks like him.  What were you thinking?

BROWN:  Well I knew he had a familiar look about him, but when he

looked into my face, I said oh, my God.  In my mind, I was so afraid.  I

was just going crazy.  But I had to keep up the illusion that I was talking

still talking to my sister on the cell phone, who by this time was screaming at me because she can tell by my voice, the sound of my voice that I was upset and I guess I wasn‘t making a whole a lot of sense to her. 

ABRAMS:  So you‘re now convinced that you are looking into the eyes of this wanted man and you do what? 

BROWN:  I continue to talk to my sister, as you, you know, just to give him time to get away from me, so he would not come to the realization that I discovered him or that I recognized him, you know, for my own personal safety, you know...

ABRAMS:  And then you called the authorities? 

BROWN:  I was about to call the authorities, but it so happened there was a campus police car coming down the street, you know lucky me.  I was able to run out in the middle of the street and flag him down. 

ABRAMS:  And what did you say? 

BROWN:  I was so excited.  I had to repeat my story twice to the officer because the first time my words were running into each other.  I wasn‘t very coherent.  You know he was—I was very excited and nervous and so the officer, you know he looked at me like I don‘t understand what you‘re saying so I had to repeat myself...

ABRAMS:  All right.  Officer Johnson, you were one of the ones who responded to this.  Were you there when Annette was trying to describe what she saw? 

JAY JOHNSON, APPREHENDED “FAKE FIREFIGHTER”:  I came to that location and I did see her carrying on a conversation with Officer Anderson who was interviewing her and I did overhear a lot of what she was telling him and the description and I had seen the gentleman on television myself that morning before I came to work and I knew who she was talking about and I made the comment to us is this the same guy that was on television today that was seen in Memphis yesterday...

ABRAMS:  Yes.

JOHNSON:  ... and she said yes, it was.  And she was so confident and convincing that this was definitely a guy she had seen on “America‘s Most Wanted”, I knew right away that it was a good chance it was him and he was on the campus. 

ABRAMS:  So then do you what? 

JOHNSON:  Well myself and all the other officers started searching buildings in that vicinity and we searched all the buildings in that area.  After about 40 minutes, I went back to my car and began patrolling the area and about five minutes later, I see him walking down the street and she gave such an accurate description, I saw him walking down the street just ahead of me and I spotted him.  I reported that I saw a man fitting that description and it turned out to be him.

ABRAMS:  And you—do you then approach him? 

JOHNSON:  I called in and reported my location and they sent backup units and while I was hoping to be able to get a chance to get backup units, he turned around and saw me.  He immediately crossed the street directly in the path of my squad car.  I had to slow down to keep from running over him.  He looked at me, a very a harsh look and like it was—he was angry at me.  He crossed in front of me to the other side of the street and continued in the same direction of the sidewalk. 

I stopped my car; turned on my blue lights and yelled out the window at him, stop.  I want to talk to you.  He looked back at me several times like no way.  He didn‘t say anything, but he continued walking and picked up his pace.  I got out of the car.  He reached in his pocket, started trying to pull something out.  I could tell it was some type of weapon. 

It was black handle with a silver finish on, whatever was attached to it, but I couldn‘t tell whether it was a gun or a knife.  I drew my weapon and was yelling at him to get his hand out of his pocket.  Whatever he was trying to pull out was caught in his pocket and he couldn‘t get it out for a few seconds and by that time, I was down the street on foot.  He turned and faced me, finally pulled out a pocketknife with about a 3-inch blade. 

It wasn‘t a pocketknife.  It was a dagger.  And he raised it up.  I felt like he was threatening me with it.  I threatened you know to shoot him if he didn‘t drop it.  He didn‘t drop it, but then he moved and pointed the knife at his neck and pressed it into his neck just slightly.  Several times, I said you don‘t have to do this. 

And he still continued to do it.  He—then he began to shove the knife into his neck and I sprayed him with pepper gas.  He didn‘t show any signs that pepper gas or stabbing himself was causing any pain.  He had a blank look on his face at that time.  I emptied almost a can of pepper gas in his face.  He turned and began walking away.

He kept pushing the knife into his neck.  I‘m talking an inch and a half of it went into his neck each time he did it and he was losing a lot of blood.  He started walking away from me and picked up his pace again and at that time, he went about 50 feet and stopped and turned around and just dropped the knife and said I give up. 

ABRAMS:  And that was it. 

JOHNSON:  He laid down (INAUDIBLE) and the other cars arrived right at that time and they handcuffed him and that was it. 

ABRAMS:  Wow.  Annette Brown and Jay Johnson thank you so much for coming on the program.  Appreciate it.  We‘re glad that this finally ended.

JOHNSON:  I‘m glad, too. 

BROWN:  Thank you. 

ABRAMS:  Coming up, Peter Braunstein‘s father made an emotional plea on this program for his son to turn himself in.  He‘s back with us now, after his son refused to speak to him from jail. 

And President Bush admits he authorized a top secret National Spy Agency to check up on hundreds of U.S. citizens as part of the war on terror.  Can he do that legally without any court supervision? 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike.  Today we are going in Kansas. 

Authorities need your help locating Gilbert Martinez.  He‘s 39, 5‘8”, 175.  He was convicted of criminal sodomy with a child under the age of 16, has not registered.  If you‘ve got any information on his whereabouts, please contact the Kansas Bureau of Investigation, 1-800-572-7463.

Be right back.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, that man who dressed up as a New York City firefighter, now accused of assaulting a woman for more than 12 hours, finally captured.  His father pled for his son to surrender; now the son refuses to speak to father.  Peter Braunstein‘s father joins us after the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

ALBERTO BRAUNSTEIN, PETER BRAUNSTEIN‘S FATHER:  Anybody who can commit this crime must be mentally deranged or must have emotional problems and therefore, I implore him to finally come home and get the help he needs. 

(END VIDEO CLIP)

ABRAMS:  Peter Braunstein‘s own father on this program, calling him deranged, pleading for him to turn himself in.  Braunstein didn‘t turn himself in, but he was caught after a student recognized him on the University of Memphis campus.  Annette Brown, you just heard from her, called campus police.  When he was apprehended, Braunstein reached into his pocket, pulled out a knife, stabbed himself in the neck repeatedly. 

Ordered to get down, obeyed, saying I give up.  Braunstein also had a BB gun in his pocket.  In his backpack was a diary, possibly detailing the assault on Halloween night, a video camera and videotapes.  Braunstein is charged with kidnapping, sexual abuse, burglary and robbery. 

Joining me now is Alberto Braunstein, Peter Braunstein‘s father.  Mr.

Braunstein, thank you for coming back on the program.  We appreciate it. 

So you went down to try and visit your son and what happened? 

BRAUNSTEIN:  Well, I went to jail.  He was released the next day from the hospital.  I couldn‘t see him then.  I went and tried to see him in jail.  He came out, looked at me and waved with his hand saying I don‘t want to see you.  Go away.  And that was it. 

ABRAMS:  You have had a troubled relationship with him in the past, but when you‘ve been on this program, you have expressed sympathy, really.  You‘ve said that you believe he is mentally ill, that he is deranged, that he needs help, et cetera.  You seem—from what I‘ve seen of you as of late, it seems that you‘re a little bit angrier now than you were when you went to Memphis.  Is that fair?

BRAUNSTEIN:  No.  I still think that he is deranged.  He had written me a (INAUDIBLE) letter saying that he can‘t wait for me to croak so that he could urinate on my grave.  If that‘s not insanity, I don‘t know what is. 

ABRAMS:  How did he look to you?  You got to...

BRAUNSTEIN:  Frankly, he looked—two days before he was on the critical list, and he recovered very fast.  He even joked with reporters.  (INAUDIBLE) already he lost 20 pounds.  I didn‘t think that he lost any. 

He seemed—he was looking very, very well.  Much better than I expected. 

ABRAMS:  How did you feel about the fact that he seemed willing to speak to reporters, but not to you? 

BRAUNSTEIN:  It was painful.  But there was nothing much I could do about it.  As a father, I was there for him and I thought after this ordeal that his attitude would change, but you‘re not dealing with a rational person and therefore, with a sick mind, he needs psychiatric help very badly.  And I‘m hoping that the judge will be able to see that he is deranged and send him to a psychiatric ward where he can get some help. 

ABRAMS:  Do you plan to try to go back to visit him again? 

BRAUNSTEIN:  I don‘t know yet because he categorically refused to see me. 

ABRAMS:  That must have been very hard for you. 

BRAUNSTEIN:  Well, those last two months, it‘s been just a nightmare, a nightmare.  So that‘s about it.  His anger towards me is something that I can‘t quite understand. 

ABRAMS:  But seeing him wave his hand at you.  I mean...

BRAUNSTEIN:  Yes.

ABRAMS:  ... you still got to be looking at him as your son. 

BRAUNSTEIN:  Well of course.  Of course.  And I don‘t know what change

I was his best man at the wedding.  He wanted me to be his best man.  I do not understand this anger and utter rejection.  I just don‘t—cannot understand. 

ABRAMS:  Yes. 

BRAUNSTEIN:  But then again, you‘re not dealing with a rational person.  He is sick. 

ABRAMS:  Alberto Braunstein, I‘ve said this before.  You‘ve been very brave throughout this process, calling for Peter repeatedly to turn himself in and I wish you the best of luck.  You‘ve got some difficult weeks ahead of you. 

BRAUNSTEIN:  Dan, one more thing I‘d like to say. 

ABRAMS:  Please.  Please. 

BRAUNSTEIN:  The arresting officer, Johnson, I would like to thank him.  He could easily have shot him and it was within his right to do so.  But he used psychology and he was a true professional and I‘m most grateful to him. 

ABRAMS:  I‘m sure he will be appreciative to hear that particularly from you. 

BRAUNSTEIN:  Right.

ABRAMS:  Alberto Braunstein, thanks.

BRAUNSTEIN:  Thank you. 

ABRAMS:  Coming up, President Bush admits he authorized the National Security Agency to monitor certain writings and phone calls of hundreds of Americans without any court supervision.  He defended his decision today.  But is that enough?  Can he do it legally?  We debate. 

And as we get closer to the holidays, I offer up some holiday tips.  Today‘s topic, re-gifting, the etiquette, the standard, the law.  I said it‘s OK, but there are some rules.  It‘s my “Closing Argument”.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  President Bush on the offensive and the defensive today as he tried to explain why the National Security Agency has been spying on Americans without any court warrants.  Debate coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Today, President Bush admitted he authorized the super secret National Security Agency to spy on hundreds of U.S. citizens and foreigners in this country, without first getting a warrant from a court.  Now “The New York Times” wrote the story on Friday that certain Americans‘ writing or calling abroad may have been monitored.  President Bush defended the decision in his national radio address on Saturday and again at a White House news conference today. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I just want to assure the American people that one I‘ve got the authority to do this.  Two, it is a necessary part of my job to protect you and three, regarding your civil liberties. 

(END VIDEO CLIP)

ABRAMS:  But from both sides of the aisle on Capitol Hill, many senators are not satisfied.  Arlen Specter is a Senate Republican and Russell Feingold is a Senate Democrat.

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER (R-PA), JUDICIARY CHAIRMAN:  It‘s inexcusable to have spying on people in the United States without court surveillance, in violation of our law, beyond any question. 

SEN. RUSSELL FEINGOLD (D), WISCONSIN:  He can‘t make up the laws.  He can‘t say, look, this is a good idea.  I think I‘ll just go ahead and do it and go tell Congress it‘s a good idea.  It‘s against the law.

(END VIDEO CLIP)

ABRAMS:  “My Take”—look, occasionally government officials need to be able to spy on Americans whether they‘re calling or writing internationally or here at home.  That‘s why we allow for wiretaps and I accept the reasoning of the president and others that there are times when even the so-called FISA court, the special secret court for intelligence and terrorism-related investigations, which makes it easier to get a wiretap, cannot help them quickly enough. 

That sometimes they may need to act immediately without court approval.  OK, fair enough.  But that does not explain why they can‘t go to the court later as permitted by law and let that secret court know what they‘re doing. 

David Cole is a professor of constitutional law and national security law at Georgetown University and David Rivkin was a White House counsel in the administration of George H. W. Bush and also served in the office of Policy Development at the Justice Department.  Gentlemen thanks very much for coming on the program.

David Rivkin, what am I getting wrong? 

DAVID RIVKIN, FORMER WHITE HOUSE COUNSEL:  What you‘re getting wrong, Dan, with all due respect, is you‘re looking at FISA as the exclusive framework, which the president can use to get wiretaps going without getting a criminal warrant.  The president has plenary powers, the commander in chief...

ABRAMS:  So he can do whatever he wants?  He doesn‘t need to...

RIVKIN:  No, no, no, I‘m not saying...

ABRAMS:  Because he...

(CROSSTALK)

ABRAMS:  ... he seems to be...

RIVKIN:  I‘m not...

ABRAMS:  ... separating it out between this international monitoring and domestic monitoring and yet, I don‘t see what the difference would be...

RIVKIN:  No, I—let me explain.  What the president has done, he has authorized a (INAUDIBLE) program to intercept communications of individuals that either originate abroad or originate in this country, but are directed abroad.  Where one of the parties is a known al Qaeda operative.  This is nothing more than (INAUDIBLE) intelligence collection.  This is not for intelligence.  If a president cannot acquire intelligence on the very end of these (INAUDIBLE), then commander in chief power means nothing. 

ABRAMS:  So we have hundreds of known al Qaeda operatives in this country? 

RIVKIN:  No.  What I said is that you can have instances where al Qaeda operatives are talking to people in this country and we certainly do have sleeper agents in this country.  And look, this is the same situation where the Congress has authorized, following September 11, the president to use all necessary force to repel this aggression against the United States.  So actually both political branches, speaking in concert on this issue.  An authorization to use force came after (INAUDIBLE) statute was passed.  The (INAUDIBLE) statute has nothing to do with it.  It is a totally different peacetime framework for foreign intelligence.

ABRAMS:  All right.  Professor Cole, look, I‘ve laid out my view on this.  Do you agree, though, that there are going to be times when they simply don‘t have time to go to even the secret court and get permission. 

DAVID COLE, GEORGETOWN UNIV. LAW PROFESSOR:  Well, the Foreign Intelligence Surveillance Act provides for that and says you can put the tap on first and go to court later, as long as you go within 72 hours.  And they haven‘t made any argument that they couldn‘t do that. 

Moreover, David Rivkin is just wrong that the Foreign Intelligence Surveillance Act is only about peacetime.  There is a provision in that act that is expressly entitled “authorization for wiretaps during wartime”.  And Congress expressly addressed the question.  Can the president engage in wireless—warrantless wiretapping during wartime and they said yes, but only for 15 days, the first 15 days after a war is declared. 

So here, the president says, we authorized military force.  That‘s equivalent to declaration of war and I can therefore, engage in four years of warrantless wiretapping on innocent Americans, even though Congress has expressly addressed the question and said I can only do it for 15 days.  Instead of saying Congress you ought to change the law, he just violated the law and did it in secret.

ABRAMS:  Here‘s what Attorney General Gonzales has said about this today.  I got to tell you, I don‘t understand what the difference is between monitoring phone calls or e-mails, between two U.S. cities and monitoring between the U.S. and somewhere abroad.  Here‘s what Attorney General Gonzales said. 

(BEGIN VIDEO CLIP)

ALBERTO GONZALES, ATTORNEY GENERAL:  This is not a program of domestic spying of calls within the United States.  In the exercise of these authorities, one party to the call has to be outside of the United States and we have to have reasonable basis to believe that one party to that call is a member of al Qaeda, affiliated with al Qaeda or somehow helping our enemy defeat the United States. 

(END VIDEO CLIP)

ABRAMS:  But David Rivkin, the problem is President Bush wasn‘t able to answer the question today at the press conference.  Why is it any different if it‘s a domestic call than a call from abroad?

RIVKIN:  The reason it‘s different is because the president chose quite properly to (INAUDIBLE).  Let‘s keep in mind the following.  Even in time of peace, interceptions of calls and faxes and other forms of communications outside the United States are not governed by FISA at all.  That‘s done subject to presidents (INAUDIBLE) authority. 

So what the president chose to do is in a time of war, to conclude that interceptions that are—of calls that are substantially foreign in nature as (INAUDIBLE) domestic in nature are governed by (INAUDIBLE) commander in chief.  That is a very reasonable way of slicing it.

ABRAMS:  My problem with that, Professor Cole, is that he gets to define every single term without any courts helping to refine well what does it mean to be someone who‘s a potential enemy or what does it mean to say it‘s a phone call, et cetera.

COLE:  That‘s why we have a system of checks and balances.  We have a system in which we require that Congress first authorizes the power in general and second, that courts approve the specific applications of the power in each individual case.  And here the president simply ignored both and not only did he ignore both, he did it in the face of a criminal statute that makes it a crime to conduct these kinds of wiretaps without getting congressional approval. 

RIVKIN:  Let me just...

ABRAMS:  Real quick, yes.

RIVKIN:  Very quick, let me clarify what we‘re talking about.  We‘re talking about the process, very similar in the war with two (INAUDIBLE) of us breaking a German and (INAUDIBLE) Japanese code and reading their traffic.  This has nothing do with a process for which FISA was set up.  If a president cannot engage in acquisition of battlefield intelligence without a court approval...

(CROSSTALK)

COLE:  This isn‘t battlefield—no one is disputing...

ABRAMS:  Yes.

COLE:  ... battlefield intelligence...

RIVKIN:  But it is.  It battlefield intelligence...

(CROSSTALK)

ABRAMS:  Wait.  Wait...

(CROSSTALK)

ABRAMS:  Yes, I thought we were talking about United States phone calls. 

UNIDENTIFIED MALE:  Yes.

ABRAMS:  When did we get on the battlefield?

RIVKIN:  No, no, no.  If an American—remember, where did the attacks come on September 11, Dan?  They came in this country.  If we‘re talking...

ABRAMS:  So what‘s the difference—it doesn‘t work.  You can‘t on the one hand say well the president has been very narrow and he said it‘s only if it‘s international phone calls.  Than you‘re telling me that the battlefield is in the United States, if the battlefield is in the United States, then all the phone calls should be monitored...

RIVKIN:  The battlefield is in the United States, but the attack is coming from abroad.  This is a very reasonable way of dealing with this difficult problem.  Look, let me say this. 

(CROSSTALK)

RIVKIN:  Checks and balances...

ABRAMS:  I got to give Professor Cole the final word.  Go ahead, final 20 seconds.

COLE:  Look the bottom line is that Congress addressed this issue.  That he told the president how he should act.  Instead of asking Congress to change the rules, he simply went ahead and violated them and violated a criminal statute.  That‘s not the way democracy is supposed to run. 

(CROSSTALK)

RIVKIN:  It‘s not the way our Constitution is supposed to work.  The president does have plenary power...

(CROSSTALK)

ABRAMS:  Gave him the last word.  OK, David Cole and David Rivkin, thank you very much.  Appreciate it. 

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  Coming up, it‘s that time of the year.  Things get a little hectic.  Many of you doing some last minute holiday shopping.  I‘ve got some holiday tips.  Today‘s topic, re-gifting.  I‘ve got the laws, the etiquette.  Make sure the cover-up is not worse than the crime.  It‘s my “Closing Argument”. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to help find missing sex offenders before they strike.  We‘re in Kansas this week.  Authorities need your help finding Robert Win (ph).  He‘s 42, 5‘7”, 150, convicted of rape, hasn‘t registered. 

If you have any information on his whereabouts, please contact the Kansas Bureau of Investigation, 1-800-572-7463.  Back in a minute.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—this week my thoughts on the holidays.  Today‘s topic, re-gifting.  I‘m all for it.  Why shouldn‘t I be able to give a brand new wrapped macrame lampshade I received from my uncle as a birthday gift to a longtime friend of my mother‘s as a holiday gift?  Why should I deprive her of what I believe would be her dream light reduction apparatus just because it doesn‘t exactly go in my apartment? 

But there‘s etiquette involved.  Almost a legal standard associated with

re-gifting.  As I say over and over, when it comes to legal and political

stories, the cover-up is often worse than the crime. 

And that certainly applies to re-gifting.  This season it‘s the best tip to take from Martha Stewart.  Come clean.  Why shouldn‘t I just tell my mom‘s friend that it is a lovely lampshade but it just doesn‘t fit my apartment?  I think it will look great in hers.  It is all true except for the part about it being lovely, but she and I have different tastes.  No one is obligated to say since you like ugly things, I thought you‘d enjoy this horrendous lampshade.  As long as I truly believe she will like it, it‘s legit.  That‘s rule number two.

Now the tougher issue is when you say nothing about its origin and then they try to return it or a card falls out and somehow the truth emerges.  Here it is essential to tell the truth immediately.  But I do believe that white lies are OK at this point.  You can talk about how hard it was for to you part with it or you just didn‘t have the time to fight the—find the right gift and realize the perfect one was hiding in your closet.  But you must admit the underlying transgression, that you‘re re-gifting. 

I recently had my own lesson in my re-gifting etiquette.  I pulled all the unused gifts and party favors I‘ve received over the year and brought them to my staff.  Now I told them they were re-gifts so I adhered to rule number one.  But it seem only a handful of the items were of any interest.  I thought someone would have liked the fingernail oil, but I violated rule number two.  It has to be reasonable belief the person will actually appreciate the gift. 

When my birthday rolled around, I was given a taste of my own medicine or for that matter, my own cleansing products.  My staff wrapped up some of those same gifts and threw in some re-gifts of their own and gave a big presentation on my birthday, a re-gift of re-gift celebration.  I say go ahead re-gift.  But if you get caught, the macrame lampshade, for example, come clean.  You don‘t want to be seen in an unfavorable light. 

Coming up, your e-mails on the Natalee Holloway investigation.  Is the boycott actually working?  Some of you just returned from the island, wrote in your observations.  That‘s next.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday, Aruban officials met with congressional leaders here about the Natalee Holloway investigation.  One U.S. congressman said the Aruban authorities are cooperating with the FBI.  So we asked is this boycott still necessary?  Is it working?

John Morgan writes, “I just got back from Aruba on Saturday.  I have been going there the last three years.  I wanted to let you know that I noticed a considerable difference in tourism over the last two years.”

But Jan and Carl Collier from Fayetteville, Arkansas say there was no difference.  “We just returned from our sixth trip to the paradise called Aruba.  We had the best trip ever and plan to go back next year.”

Finally, Tony writes, “We seem to be blaming the country of Aruba for not being able to close this case, but we have cases in the United States of missing people that we‘ve been unable to close.  Should we boycott tourism to those states also?”

Your e-mails abramsreport—one word -- @msnbc.com.  A tip, you get a better chance of us putting it on if you give us your full name and where you‘re writing from.  But you know as you can see, sometimes we don‘t always adhere to that. 

“HARDBALL” with Chris Matthews up next.  See you tomorrow.

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