updated 12/22/2005 9:17:15 AM ET 2005-12-22T14:17:15

Guests: Randy Mastro, Steve Malanga, Davidson Goldin, Simon Henderson, Tammi Menendez, Chris Pixley, James Bamford

DAN ABRAMS, HOST:  Coming up, more chaos at the trial of Saddam Hussein.  This time he says his American captors beat and tortured him. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  After a witness described in painstaking details the horrific torture he and his family endured at the hands of Saddam‘s henchmen, Saddam stood up and claimed Americans are doing the same to him.  He says he can even show the marks on his body. 

And President Bush under fire for allowing the government to eavesdrop on Americans, but some are saying President Clinton did the same thing.  It that true? 

Plus, her husband is behind bars for killing his parents, but Tammi Menendez didn‘t meet husband Erik Menendez until after he was serving time.  Now she‘s leading the fight to try to overturn his conviction.  How do you fall in love with someone in prison for life?  I‘ll ask her. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  Those stories are all coming up, but first up on the docket, it is getting ugly.  New Yorkers, commuters, tourists visiting New York during the holiday season, increasingly frustrated at a transit union that walked out on the job just five days before Christmas. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Fire all the (UNINTELLIGIBLE) workers now. 

UNIDENTIFIED MALE:  I think it is a disgrace. 

UNIDENTIFIED FEMALE:  I‘m angry.  Absolutely angry.  I think there was no need for this. 

UNIDENTIFIED MALE:  I didn‘t think it would be this dramatic and messy, you know it‘s really messy. 

(END VIDEO CLIP)

ABRAMS:  No subways, no buses.  After a number of confessions—concessions, the two sides, the Transit Workers Union and the Metropolitan Transportation Authority still can‘t agree on one thing it seems, the pension plan.  Now a court has declared the walkout illegal and imposed hefty fines on the union.  Now some are saying the workers themselves should have to pay the fines and the judge even said sending the union leaders to jail for not ending the strike is a—quote—“distinct possibility”.  But hours ago the mayor, Bloomberg, said he does not think that‘s the answer. 

(BEGIN VIDEO CLIP)

MAYOR MICHAEL BLOOMBERG ®, NEW YORK:  I think from a practical point of view a fine against the union would probably be a more productive kind of deterrent than putting somebody in jail where you then can‘t negotiate with them. 

(END VIDEO CLIP)

ABRAMS:  Yes, but others are calling for other drastic measures like what President Reagan did during the 1981 air traffic controller strike, just firing them all. 

Joining me now labor attorney and former New York City Deputy Mayor for Operations, Randy Mastro, Steve Malanga, senior fellow at the Manhattan Institute, who wrote an article in the “Wall Street Journal” today saying that all the strikers should be fired and New York 1 anchor and columnist for “The New York Sun”, Davidson Goldin. 

All right, Randy, let‘s take up issue number one, the judge saying there is a distinct possibility that some of these people are going to go to jail.  Is that going to happen? 

RANDY MASTRO, FORMER NYC DEPUTY MAYOR FOR OPERATIONS:  Well I still think that that‘s unlikely to happen, although it is a measure of how outraged this judge is like all New Yorkers at the union‘s conduct, Dan, and this is really a shameful act on the eve of Christmas. 

ABRAMS:  It‘s just—Randy, give us the law here.  It is simply illegal to strike if you are a public employee in New York, right? 

MASTRO:  Absolutely.  New York State has a law known as the Taylor Law that makes it illegal for public employee unions to strike.  This law applies to the Transit Workers Union.  They knew it was illegal before they went out on strike, yet they did it anyway. 

You know they are not the only union to have labor problems in New York.  The PBA, the police, the UFT, the teachers, they have worked without a contract, sometimes for years, but they worked it out through either binding arbitration or collective bargaining.  What the Transit Workers Union has done here is irresponsible, irrational and illegal.

ABRAMS:  All right, Steve Malanga, you say fire them all? 

STEVE MALANGA, THE MANHATTAN INSTITUTE:  Well I say absolutely that you have to have this threat in front of them.  Because what Ronald Reagan did in ‘81 is said look—listen you have 48 hours to come back or not and when they didn‘t come back he fired 11,500 of them.  You have to understand something.

This is a union that has benefits that are far beyond what private sector workers get.  There are 30 applicants for every open job in this particular organization.  I mean it‘s not like these are jobs that their industrial union is from the 1930‘s who are working in sweatshops.  These are very good jobs. 

ABRAMS:  David, why is no one in power?  The governor, the mayor, talking about either firing all of them or putting the union leaders in jail.

DAVIDSON GOLDIN, NY1:  Well they don‘t want to make the union leaders martyrs.  Both the mayor‘s people and the governor‘s people have said out of hand there is no chance that they‘re going to try to jail Roger Toussaint, even although a lot of people think they should (UNINTELLIGIBLE) Randy is with us who worked for Rudy Giuliani.  A lot of people think that Rudy Giuliani would have put the leaders in jail.  And as far as firing them, there‘s a feeling then what?  Then they‘ve got 34,000 unemployed people who will blame government for them being out of jobs.  At this point...

ABRAMS:  But David, isn‘t there a sense that maybe people in New York and around this country will say good for him?  You know they want to have an illegal strike based on what is really just one issue now and that is apparently the pensions of future workers and so they walk out at Christmastime? 

GOLDIN:  It is a little bit nuts when you think about it that way.  In a sense you think these transit workers might begin to think of charity starting at home, rather than worrying about themselves at all here.  They are fighting for what will happen to people, what they call their unborn, who haven‘t even been hired yet.

But as far as hiring them, there‘s isn‘t a great sense on the streets of New York right now that that would be a good idea.  And as far as what the country thinks, George Pataki, the governor says he‘s going to try to run for president.  He want to look tough.  Mayor Bloomberg wants to see...

ABRAMS:  Right.

GOLDIN:  ... wants to show other unions that he can get pension returns from them.  But they‘re not looking to make workers think that they‘ll be fired.  They want to prove that by holding tough they could bring the workers back to the bargaining table.  The problem is the government officials are now becoming very concerned that Roger Toussaint simply will never come back to the bargaining table...

ABRAMS:  Right, so what happens then?  I mean what happens if we are now, what, a month from now, six weeks from now and everyone is still walking to work and getting gouged by taxi drivers around the city, is the sentiment going to change on the part of the governor and the mayor? 

GOLDIN:  I think the strategy at some point will be because the executive board of the union that had to authorize the strike.  This was not unanimous.  There was a lot of dissent.  At some point, if Roger Toussaint continues to act in a way that government officials just don‘t think makes any sense to them, they‘ll probably try to work behind their backs, get together with other members of this executive board and try to work around the leader, almost a coup (ph), if you will, but at this point they are just sort of throwing up their hands and saying all they can do is hang tough and hope that at some point the union gives in. 

ABRAMS:  Randy, would Rudy have put these guys in jail? 

MASTRO:  Well what Rudy Giuliani did in 1999 when we faced a similar crisis, but before the strike deadline passed was to go into court and get those fines imposed, not only against the union doubling every day, $1 million doubling every day but $25,000 doubling every day against each union member.  And it caused the then head of the Transit Workers Union to say he couldn‘t put his union at such risk. 

ABRAMS:  But did they actually pay them, Randy?  I mean that‘s what I don‘t get.  I mean we keep talking about these enormous fines that are being imposed on a union and the union leader seems to be saying yes, yes, yes, yes, we know there are these fines out there but he doesn‘t seem to be particularly worried about it. 

MASTRO:  Of course in ‘99 the union didn‘t go out on strike because the fines had their effect.  They knew that they would be put into bankruptcy and their members would be put into bankruptcy so they didn‘t strike.  But in 1980 when there were fines, not this onerous, but there were fines, the union had to pay.  It was an 11-day strike back in 1980.

ABRAMS:  So when you say the union had to pay, what does that mean?  I mean does that mean that the—because we‘re now talking about the possibility of individual leaders having to pay out of their pockets. 

MASTRO:  Right.  And I think that the mayor and the governor and the MTA have all made clear that they‘re not going to wipe that slate clean.  In fact, it‘s not up to them to wipe it clean.  A judge is imposing these fines, so only if the judge agreed not—to lift them could they be lifted.  I don‘t see that happening.  I see this union going into bankruptcy. 

ABRAMS:  Steve, shy are they not more afraid about the fines?  I don‘t get it.

MALANGA:  Well this is an extremely militant union.  They have struck twice before.  Their heritage is—they started actually as a union associated with the communist party in New York City in the 1930‘s.  They actually to a certain extent revel in this.  When they didn‘t strike in 2002, which was the last time their contract was up, there were actually stories in the paper in which some of the union members spoke wistfully about the former strikes and about saying how this generation of workers hasn‘t had their chance to go on the picket lines.  This is a very militant union and we need to understand that.

ABRAMS:  David, what about that? 

GOLDIN:  Well what I was going to say, Dan, is I think part of the problem, as Steve pointed out, that these are somewhat well-paying jobs in the sense that the typical train operator after just a few years does make more money than a cop, a firefighter or a teacher, but they‘re really not great jobs.

You‘re talking about in many cases these subterranean jobs working on dirty and loud subway cars, driving buses through New York City gridlock.  These are jobs that many people take simply as their only way out of poverty.  These are not people looking for careers as much as in many cases they‘re just looking for a chance to get a decent wage and looking forward to that pension one day.

ABRAMS:  Fair enough, but what does that tell us about the point that Steve was making about the—about this militant union? 

GOLDIN:  Well the point it tells us is they don‘t—I don‘t want to say they don‘t care to a certain point, but they say that their tradition is they don‘t work without a contract.  Every other New York City workers in New York City, municipal workers, they always works without contracts for years at times.  These guys say just tradition trumps the law for them.  That they just simply won‘t do it and I think part of that is because on a daily basis their jobs are kind of grimy in many cases. 

ABRAMS:  Yes.  I don‘t know.  I feel like every other New Yorker in the sense that I‘ve been reading about this, I‘ve been reading about the concessions that were made by the MTA and I‘m blaming the union on this. 

UNIDENTIFIED MALE:  Can I interject here...

ABRAMS:  Yes, go ahead. 

MALANGA:  Listen, you know the point about their jobs, guess what, people drive buses all around America.  They drive buses all around the metropolitan region.  They drive buses in New Jersey, on Long Island.  They don‘t have salaries like this.  They don‘t have pensions like this.  If they are private sector bus drivers they don‘t get nearly this pay.  There‘s a 25...

ABRAMS:  Yes.

MALANGA:  ... percent pay differential...

ABRAMS:  That‘s a good point.  Yes.

MALANGA:  So the idea that these are somehow an oppressed minority, you know what?  You only see this in the papers and in the media in New York.  Average New Yorkers don‘t believe this.  The media believes this...

ABRAMS:  Talking about the media.  I mean it drives me crazy when people throw out these nonsense—you read—have you read the media, Steve...

(CROSSTALK)

ABRAMS:  Read the “New York Post”, “The Daily News”, “The New York Times”, and “The New York Sun”, every single one of them is coming out against the union. 

(CROSSTALK)

MALANGA:  That‘s not true.  “The New York Times” has written...

ABRAMS:  Editorial today...

(CROSSTALK)

ABRAMS:  Today‘s editorial, blame the union Steve.

MALANGA:  Well first of all, “The New York Times” has written several stories about how these workers, how they have mortgages to pay.  Today there is a story about how it was the MTA that miscalculated that made the wrong decision.  It wasn‘t the union‘s fault...

ABRAMS:  Yes...

MALANGA:  ... read that story. 

GOLDIN:  You know Dan I think the simplest way to describe the decision to strike is because they can.  I think that this was—this is a union led by some guys who just wanted to stand up to the government and said you know what?  You don‘t think we are going to?  Well guess what, we are and they are. 

MASTRO:  But Davidson...

ABRAMS:  Very quickly...

MASTRO:  ... they‘re going to pay a heavy price for this.  And I think that ultimately this is a day that will live in infamy for the union movement in New York City.  Roger Toussaint‘s days are numbered. 

(CROSSTALK)

UNIDENTIFIED MALE:  I didn‘t say it made any sense at all because it doesn‘t...

(CROSSTALK)

ABRAMS:  I think the truth is all of us kind of agree on the fundamental issues.  I‘ve got to go.  Randy Mastro, Steve Malanga, Davidson Goldin, thanks a lot.  Appreciate it.

Coming up, Erik Menendez sentenced to life without parole for killing his parents, but since then he got married to the now Tammi Menendez.  She knew he had been sentenced to life behind bars.  Why would she marry him?  She‘s now leading the fight to get him a new trial and she joins us. 

President Bush under fire for authorizing a government agency to spy on Americans.  Some now claiming that other presidents like Clinton and Carter did the same thing.  But is that really true? 

And up next, Saddam Hussein is back in court telling a judge that American forces beat him.  He says he‘s got marks on his body to prove it.  Come on. 

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:  We‘re back.  More chaos in Saddam Hussein‘s trial today after a witness testified that Saddam‘s regime killed and tortured people by administering electric shocks and ripping skin off after pouring hot plastic on it.  Saddam stood up and claimed he has been abused while being held in custody by American-led forces. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator):  I was beaten and the signs are still on my body until this day. 

(END VIDEO CLIP)

ABRAMS:  The chief prosecutor said he would investigate the former dictator‘s claims and said if true, Saddam would be transferred to the custody of Iraqi troops.  Joining me now, Saddam Hussein biographer Simon Henderson.

Mr. Henderson, thank you for coming on this program.  All right, so this is the first time we have heard this from Saddam Hussein.  He didn‘t even mention it at the beginning of the proceeding.  He only mentions it after this witness testifies about torture, et cetera and it seems almost reluctantly so.  Does this seem to you based on those facts that this is a Saddam Hussein tactic? 

SIMON HENDERSON, SADDAM HUSSEIN BIOGRAPHER:  Oh it has to be a Saddam Hussein tactic.  I don‘t believe for one moment that he was tortured.  I think he‘s probably being treated very fairly by American forces ever since he was captured just over two years ago.  It‘s a tactic by Saddam and frankly a wrong tactic in that he should have mentioned it previously or he should have declared it previously if he was going to use it. 

And the judge has got instantly the better of him by saying well, he will investigate and if it‘s true, he‘ll—Saddam will be looked after by Iraqi guards. 

ABRAMS:  Yes.

HENDERSON:  Well if there was ever a chance of being beaten up or tortured, it was with Iraqi guards. 

ABRAMS:  Yes.  Yes.  That‘s a good point.  Basically here‘s the chronology.  Saddam is sitting quietly through the first witness‘ testimony.  His half brother has an outburst during the first witness‘ testimony.  Then the half brother interrupts the second witness‘ testimony and then Saddam jumps in talking about torture and abuse. 

Does he—do you think this was planned?  I mean do you think he said

to himself, oh, you know this will play well in the Arab world or based on

I mean I know you are purely speculating, but based on what you know of him, is he the kind of man who would have planned this out ahead of time?  Or was he just reacting?

HENDERSON:  I think on the torture question he was just reacting, perhaps prompted a little by his half brother, Barazan, who is the man sitting two rows behind him, who‘s been getting up and making all the fuss.  Barazan is a particularly evil character.  He was the head of Saddam‘s intelligence forces at one point. 

And if there was ever a man with blood personally on his hands, then it‘s Barazan.  Saddam isn‘t a very dramatic individual.  What he‘s been trying to do until now was frankly taking out a prayer book and saying it‘s time for prayers. 

ABRAMS:  Well that‘s what I was going to ask you about...

HENDERSON:  He‘s not a good Muslim. 

ABRAMS:  Yes, Simon, that‘s what I wanted to ask you about.  He interrupts, asks the judge can I take a break for prayer.  That‘s for show, right?

HENDERSON:  Well it must be for show unless he‘s discovered God and frankly, I don‘t think he‘s discovered God.  This is a man whose very ideology Baathism is a secular ideology and who‘s been contemptuous throughout his period of power of anybody with sincere religious beliefs whatever they might be. 

ABRAMS:  All right, Simon Henderson, thank you very much.  Appreciate it. 

HENDERSON:  Thank you.

ABRAMS:  Remember Erik and Lyle Menendez, the two brothers who killed their parents in their Beverly Hills mansion back in 1989?  In two separate trials Erik and Lyle maintained that they killed Kitty and Jose Menendez in self-defense.  They said their father was sexually abusive.  They feared that he would kill them.

The jury didn‘t buy it.  They were convicted in 1996 and are both serving life sentences for murder.  But they‘ve also both met women and gotten married from behind bars.  Erik‘s wife, Tammi Menendez, began a correspondence with him after watching his first trial on television.  Eventually Erik got down on one knee in a prison visiting room with a ring and proposed. 

Tammi and Erik have been married for seven years now, although they have never spent time with each other outside of a prison visiting area.  They‘ve been hoping a federal appeals court would overturn the brothers‘ sentences in September, giving them a new trial.  The court has refused to do so. 

Joining me now is Erik Menendez‘s wife, Tammi Menendez, who has just written a new book about their relationship called “They Said We‘ve Never Make It”.  It‘s available at erikmenendez.com.  And Erik and Tammi‘s attorney Chris Pixley joins us now as well. 

Thanks to both of you for coming on the program.  Appreciate it.

UNIDENTIFIED FEMALE:  Thank you.

ABRAMS:  All right, Tammi, we will get into the legal issues in a moment but first just take us through this for a moment.  People are going to look at you and they‘re going to say there is an attractive young woman who is marrying a guy behind bars for life.  Why? 

TAMMI MENENDEZ, MARRIED TO CONVICTED KILLER ERIK MENENDEZ:  Right.  Right.  Well, with Erik, I never expected it.  You know I wrote one letter to him and he wrote back and I went to visit him in prison and our relationship developed.  And I didn‘t set out to have a relationship with Erik, but it‘s something that happened.  And you know, it‘s a very good relationship that I have with him. 

ABRAMS:  How do you develop a relationship—you say develop a relationship.  How does one develop a relationship with someone who is always behind bars?  There are no conjugal visits.  How do you do that? 

MENENDEZ:  It‘s very difficult.  In fact, he was—in one of his letters that he wrote me he had written and said that he had a girlfriend he had for a couple of years.  And I kind of said, you know it‘s so sad that he has a girl—he thinks he has a girlfriend.  So I understand where the public‘s view is coming from. 

But I do get emotional support from Erik.  He‘s my best friend.  And within the pages of the book, I think that it really explains exactly where I‘m coming from.  But it‘s really hard to say it in a few moments, but he‘s my best friend. 

ABRAMS:  But does it make you question yourself that you are married now for seven years to a guy with—who you really can almost never touch? 

MENENDEZ:  Yes, it makes me question myself.  Everybody questions me.  You know is she crazy?  Is she nuts?  You know I get all that and so it has been a very emotional experience.  The only one that supports me is my mother and his family is supportive.  But other than that, it is very difficult...

ABRAMS:  Does it bother you that he admittedly shot his parents?  And we‘ll talk about the issues that come up on appeal as to why, but, there is no question, it seems, that he and his brother shot his parents.  Does that in and of itself trouble you? 

MENENDEZ:  It troubles me, but I do know the person that Erik is and I know his heart, I know his soul, and I do know what happened that night.  And I do understand.  I believe that within everybody put in certain circumstances, you will, you know, be able to kill somebody.  I mean I do believe that Erik is a very good person.  And you know now we‘re speaking out to try to you know get that out in the public, so...

ABRAMS:  You said that you had similar experiences with abuse? 

MENENDEZ:  I‘ve had—I haven‘t had any experiences with abuse, but I‘ve had abuse within my family.  But I‘ve never been subjected to abuse myself. 

ABRAMS:  How did you get to know him?  You write a letter.  You write one letter to him and you say a relationship develops.  I think most people are going to say, first of all why did you write a letter to him in the first place and second of all, even if you did, how does a relationship develop with a convicted murderer? 

MENENDEZ:  Well the murder—yes, you‘d be surprised how well you can get to know somebody through letters.  We did get very close through letters and then you know the relationship moved forward when I did meet him.  But it was the correspondence that he became a really good friend of mine and understood what I was going through and I understood what he was going through.  And then after I met him things you know got more and more intense, so it‘s you know through letters, you know, your constraint to letter writing. 

ABRAMS:  Do you have special arrangements in terms of this marriage considering that he can‘t do anything and that he‘s behind bars and you‘re out in the real world?  Do you have an arrangement with him as to what you can or can‘t do that might not be available in an ordinary marriage? 

MENENDEZ:  No, not really.  I mean he would be upset if I, you know, started going out to dinner with somebody or something like that.  I don‘t have really any male friends.  I have female friends and you know, so yes, there are—he would be upset, just like any other marriage, you know.  And the explanation, really, is in the book as to you know how we deal with things. 

ABRAMS:  What does your daughter think about all of it? 

MENENDEZ:  Well...

ABRAMS:  How do you explain it to her? 

MENENDEZ:  I have contacted a psychologist to make sure that I‘m telling her the right things.  I worry about it.  It‘s not something that me and Erik take lightly.  She loves Erik.  She loves to go visit him.  She never—she wants to see him every weekend.  And he‘s very good to her and very kind and is very sweet to her. 

ABRAMS:  There are a lot of pictures we‘re seeing of the two of you, arm around each other, feeding each other—where are you able to do that? 

MENENDEZ:  That is within the visiting room.  Some of the pictures are at new Folsom and there‘s a few that are in Pleasant Valley State Prison where that one was at the Pleasant Valley State Prison recently, where he‘s been transferred to. 

ABRAMS:  And they allow you to have physical contact but there‘s always someone watching, et cetera...

MENENDEZ:  Holding hands and when you‘re taking pictures you can have physical contact.  But during the visit there is no just holding hands and you can kiss when you come in to the visiting room and when you leave.  And the pictures are something that you can pose for. 

ABRAMS:  All right.  All right.  Tammi Menendez—Chris Pixley I‘m coming to you because the next segment is going to be the legal one.  The question:  Does Erik have any legal options left?  His lawyer says yes. 

And later some defenders of the president now saying why such a brouhaha over the admissions the National Security Agency was eavesdropping on Americans?  They say President Clinton did the same thing, but is that really true?

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to help find missing sex offenders before they strike.  Our search this week is in Kansas. 

Authorities are looking for Larry Moore.  He‘s 46, 5‘9”, 185.  He was convicted of child abuse and taking indecent liberties with a child.  He hasn‘t registered his current address with the state.

They‘re looking for him.  If you have got any information, please contact the Kansas Bureau of Investigation, 1-800-572-7463.  Be right back.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, her husband is behind bars for killing his

parents.  Tammi Menendez didn‘t even meet Erik Menendez until he was serving time, but now she‘s leading the fight to try to overturn his conviction.  She‘s with us.  First the headlines. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  He raped me.

UNIDENTIFIED MALE:  My dad had been molesting me. 

(END VIDEO CLIP)

ABRAMS:  The Menendez brothers.  In September a federal appeals court rejected the brothers‘ bid for a new trial.  Erik‘s attorney says he‘s not giving up and neither is he woman who Erik met from prison, the woman now known as Tammi Menendez, Erik‘s wife.  Back with me again is Erik Menendez‘s wife Tammi and Erik and Tammi‘s attorney, Chris Pixley. 

Let me go to you for one more question, Tammi.  You write in your book, it may sound strange, but my years with Erik have taught me that I can handle his incarceration.  The real question is whether I‘m strong enough to have a loving relationship with a man who is free and capable of any number of other diversions.

Do you think that he‘s ultimately going to be free?  And it sounds from this like you‘re a little nervous that he might get free. 

MENENDEZ:  Well with Erik I‘m not nervous if he was free because I realize that with Erik if he was out I would be very capable of having a relationship with him on the outside.  Another man on the outside, I‘m not too sure.  I‘m very leery about relationships on the outside and...

ABRAMS:  So you were looking for a prisoner?

MENENDEZ:  No, not really.  No, but I mean I just know Erik.  I know his heart and I know that—I know the person he is.  And I can‘t see myself with anybody else, so that‘s kind of where that excerpt came from, from the book. 

ABRAMS:  All right, Chris Pixley, let‘s talk law.  I mean so far all the courts have rejected the appeals.  Why are you still hopeful? 

CHRIS PIXLEY, ATTORNEY FOR ERIK MENENDEZ:  Well you know, Dan, the appeal has been based on I think very strong grounds.  You know the Ninth Circuit while they ultimately denied the petition acknowledged those grounds.  They accepted five issues on appeal, which is rather extraordinary.  And those issues, in particular two of them, have unique federal questions that I think the U.S.  Supreme Court is likely to take up. 

So while certainly it‘s very difficult to get the U.S. Supreme Court to take a case, once we do, we‘ve got a much better chance that they will not be frightened away by the Menendez name.  And we remain optimistic simply because the second trial was such an absolute train wreck at the hands of the same judge. 

You have—you know the first trial and the second trial are night and day.  And it‘s the same judge who makes the decision to gut the defense.  And the only thing that changed in the intervening period of time was the political lay of the land.  O.J. Simpson had been acquitted just six days before the second Menendez trial.  And there was just a whole host of other factors that led to political pressure and led the judge to reverse himself...

(CROSSTALK)

PIXLEY:  ... and he reversed himself time and again. 

ABRAMS:  Weren‘t some of the other factors, though, that both the prosecutors and defense had had a trial run in the first case and both sides came in with a slightly different strategy.  The prosecutors decided you know what, we‘re going to try and gut the defense, as you put it, in a way that we didn‘t in the first trial? 

PIXLEY:  Yes, yes, and let‘s talk about how they gutted the defense.  You know when the prosecutor is successful in excluding virtually all of the evidence of sexual abuse and then is allowed to stay up in his closing argument and tell the jury listen, they talk about sexual abuse, why didn‘t they give you any evidence?  The reason is none exist.  That is the kind of thing that causes people to absolutely lose faith in the system.  It‘s gone...

ABRAMS:  But didn‘t Erik testify?

PIXLEY:  ... it‘s the system gone wrong and...

ABRAMS:  Didn‘t Erik testify?

PIXLEY:  He did testify.  In fact, you know, he has a Fifth Amendment right against self-incrimination and yet this judge says Erik, in order to lay the foundation, tells Erik and Lyle, if you are going to lay the foundation for expert testimony, you have got to get on the stand.  Well, there is U.S. Supreme Court precedence that says you cannot do that. 

You cannot force a defendant before the end of the presentation of their case to take the stand and waive their Fifth Amendment right.  And yet this judge said in order to allow the experts on the stand to talk about the sexual abuse, the physical torture and the verbal terrorizing that went on in that home, you have got to testify first. 

They waived their Fifth Amendment right.  They did that and then the judge said sorry, I‘m not going to allow the expert testimony.  I‘m not convinced.  Well you know this is a judge who had already presided over the first trial.  He had heard the testimony of the experts and he had heard the brothers‘ testimony. 

So it was his opinion that after the brothers‘ testimony he wouldn‘t be convinced that experts should be allowed in.  He didn‘t need to make them waive their Fifth Amendment right.  This was—it was a travesty what went on and of course, again, in many cases, we have federal issues that the Supreme Court...

ABRAMS:  All right.

PIXLEY:  ... has ruled soundly against the Ninth Circuit...

ABRAMS:  Let‘s talk about why the—the basic argument as to why the abuse should have been allowed in was that the defense team believed they should be able to present what‘s called an imperfect self-defense in California.  They should be able to say that the boys—that Erik was being abused and that they feared for their lives. 

Whether it‘s reasonable or unreasonable doesn‘t matter under California law.  Now here‘s what the Ninth Circuit Court of Appeals ruled on that very issue with regard to whether there was sort of imminent peril and that as a result, the court had said look, we don‘t think the abuse is relevant here because there‘s no indication that there was any imminence to what was going on.

Here‘s what the court said.  Because Eric and Lyle...

PIXLEY:  Yes.

ABRAMS:  ... left the house after the confrontation, went to the car, retrieved their shotguns, reloaded their guns with better ammunition, reentered the house, burst through the doors and began shooting their unarmed parents.  The court concluded there was no substantial evidence of a belief in imminent peril.  I mean that doesn‘t sound like such a wacky opinion. 

PIXLEY:  Yes, Dan, and as you read that portion of the opinion, the

one thing that is missing throughout it is any reference to any legal

precedent.  The reason being that California doesn‘t have some strict

standard as to what is imminent danger.  What we do know in the course of

the trial, what came out in the course of the first trial is that Kitty

Menendez told Lyle that morning that what is about to happen—excuse me -

told Erik that morning what is about to happen is your fault. 

What is about to happen, what is going to happen to this family is your fault.  Of course, Erik had gone to Lyle, told him that the abuse was continuing and had asked him to intervene.  Lyle had gone to his father and said if you don‘t stop, I‘m going to tell the world and that led to the series of events over the course of a few days.

And that evening they were told you are not allowed to go out tonight.  It was a summer night.  These are teenagers.  One is in college and you‘re not allowed to go out tonight.  Go up to your room.  We‘ll be up to deal with you. 

Now the question is, is there imminent harm when they are in separate rooms?  And that issue of what is imminent has not been decided by California...

ABRAMS:  Tammi...

PIXLEY:  So there is a very open question as to whether it‘s imminent and the fact that the Ninth Circuit...

(CROSSTALK)

PIXLEY:  ... decided it wasn‘t does not mean the issue is dead. 

ABRAMS:  Right.  Well no and you‘ll appeal it and I understand it.  Very quickly, they tell a very different story when you listen to those audiotapes, though, that the psychiatrists made of Erik and Lyle talking about the killings.  They‘re not talking about all this abuse.  They‘re talking about a lot of other issues, which are very incriminating. 

MENENDEZ:  No, I mean they‘re scared...

UNIDENTIFIED MALE:  Yes.

MENENDEZ:  ... and they are scared about the tapes and you know they are scared about somebody taping them.  And they didn‘t reveal what was really going on.  I mean, you know, I mean...

ABRAMS:  Sounds—they sound like they‘re talking about you know money and other things that are not so helpful...

MENENDEZ:  There is no way that Erik killed his parents for money...

ABRAMS:  He did go on a spending spree after they died. 

MENENDEZ:  Yes.

ABRAMS:  Bought a car...

MENENDEZ:  No, Erik bought a jeep...

UNIDENTIFIED MALE:  Erik bought a car...

MENENDEZ:  He bought a jeep and he—but there is no—and people, you know, just to defend that, people do buy things to make them feel better.  This whole spending spree thing is just, you know, they killed their parents and then they went on a spending spree because...

PIXLEY:  Dan, it‘s fascinating too that we talk about tapes.  It‘s fascinating that you have listened to tapes of a doctor-patient conversation because that of course is privileged. 

(CROSSTALK)

PIXLEY:  And so once again, when the prosecution leads off this case, they lead it off playing tapes of communication...

ABRAMS:  Well as you know, when a psychiatrist is threatened, there are special rules that apply and there‘s a debate as to...

PIXLEY:  Yes and—right and the psychiatrist, of course, when his back was to the wall and his mistress had told the police...

ABRAMS:  Yes.

PIXLEY:  ... that in fact he been told about this crime suddenly says I have been threatened...

(CROSSTALK)

PIXLEY:  ... that was a Hollywood storyline that he came up with...

ABRAMS:  Who thought we‘d be fighting about the Menendez brothers‘ case this many years later, but you got a great lawyer on your side, Tammi...

MENENDEZ:  The best.  The best.

ABRAMS:  Chris Pixley, thanks a lot for coming on the program.  Appreciate it.  And Tammi, thank you. 

MENENDEZ:  Thank you...

ABRAMS:  Appreciate it.

MENENDEZ:  ... very much. 

ABRAMS:  Coming up, the uproar over the Bush administration‘s admitted policy of monitoring Americans on American soil without a court approval.  Is this the first president to do it?  Some say Presidents Clinton and Carter did it too.  We asked, is that really true?

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the White House taking heat for authorizing wiretaps of Americans without a court warrant, but have other presidents done this before as some are claiming? 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ALBERTO GONZALES, U.S. ATTORNEY GENERAL:  We believe the president has both the statutory authority and the constitutional authority to engage in signals intelligence during a time of war. 

(END VIDEO CLIP)

ABRAMS:  Attorney General Alberto Gonzales today again saying that President Bush has the authority to order the super secret National Security Agency to eavesdrop on foreigners and Americans without getting a warrant from a court.  NBC News has confirmed that a federal judge who serves on the court that‘s supposed to approve requests to spy has quit over the warrantless program. 

The remaining judges on the panel will meet and discuss the Bush spy program in the next two weeks.  But now claims on numerous conservative Web sites that Bill Clinton did the same thing when he was president.  They cite a 2000 “60 Minutes” report where a Canadian intelligence analyst said the NSA routinely monitored innocent civilians. 

So, is it true that it‘s been going on for a long time?  James Bamford is an expert on the National Security Agency, his latest book is “Body of Secrets: Anatomy of the Ultra-Secret National Security Agency from the Cold War Through the Dawn of a New Century”.  Thank you for coming on the program. 

And so I ask you, is it true? 

JAMES BAMFORD, AUTHOR, “BODY OF SECRETS”:  No, I‘ve written two books on NSA and looked very closely at the NSA spying on Americans and I haven‘t found any evidence of NSA doing that since the Nixon administration.  Once the Nixon administration was discovered that they were doing massive illegal eavesdropping, they created this new court, this Foreign Intelligence Surveillance Court and until the Bush administration, every president as far as I could see, had been following the law. 

ABRAMS:  Well this was—this is one of the quotes that‘s being cited from that “60 Minutes” report.  This Canadian intelligence analyst Mike Frost telling Steve Kroft how an innocent civilian winds up in a terrorist database.  This is under the Clinton administration.

A lady‘s son had been in a school play.  Next morning she said to her friend, oh Danny really bombed last night.  The computer spit that conversation out and an analyst listed that lady as a possible terrorist.

I mean if that‘s true, it sure sounds like they are listening to everybody.

BAMFORD:  I have read a lot of Mike Frost material and I don‘t give a lot of it credibility, so I think I‘ll stick with my own analysis of the agency. 

ABRAMS:  So the bottom line being, though, that you know that report, and that is—again I think that is the one that is being cited most, is the “60 Minutes” report which suggested that back then the NSA was listening to everyone.  You‘re saying it‘s just not credible? 

BAMFORD:  No.  Listen, the way it works is NSA pulls all those communications from satellites.  International communications coming off of communication satellites and filters it through this huge, basically a big net.  But most of that goes through without being listened to or read, about probably 99 percent of it. 

The few items that are picked out, actually more than a few, but those are the items that are actually the subject of warrants from the Foreign Intelligence Surveillance Court, so it‘s a very complex procedure how it‘s done.

ABRAMS:  But just so we‘re clear...

(CROSSTALK)

BAMFORD:  Believe me, if I had seen any illegality on the part of Clinton or Carter or anybody else, I certainly would have written about it. 

ABRAMS:  The ones they—just so we understand the logistics of it.  So you‘re saying that the ones that they listen to are the ones that they have gotten a warrant to listen to.  Meaning, they get all this information in, but that information is basically thrown away unless they have a warrant? 

BAMFORD:  That‘s right.  It‘s just like a big fishing net with certain size holes there.  And the only—virtually all of it goes through those holes except for the fish that are too big for those holes.  So are the ones where they actually get the warrant for. 

There‘s millions and millions and millions of communications coming and going from the United States every hour.  And they can‘t possibly listen to all of that.  So most of it goes through without ever—anybody ever reading the e-mails or listening to the phone calls.  But the ones that are picked up...

ABRAMS:  Right.

BAMFORD:  ... at least domestically are the ones that are the subject of the Foreign Intelligence Surveillance Court warrants. 

ABRAMS:  And that‘s different than what the administration is doing now? 

BAMFORD:  Yes.  This is the first time since basically the ‘60‘s or early ‘70‘s when the Nixon administration illegally did a lot of domestic spying with the NSA and again, that was why they created the FISA Court.  What the Bush  administration is doing is flaunting the law.  The law clearly says if you want to eavesdrop on U.S. citizens, you only have one choice.  That choice is to go to the court and get a warrant or don‘t do it. 

ABRAMS:  We will continue to debate the law on this program.  But James Bamford, thank you very much.  We appreciate you coming on.

BAMFORD:  My pleasure.  Thank you.

ABRAMS:  Coming up, more of my holiday shopping trips, is as convenient as holiday gift cards are.  I say think twice before buying one. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—another holiday shopping tip.  I said last night that gift cards weren‘t the most romantic last minute gift you could buy for that special someone, but that‘s not the only problem.  More importantly, gift cards can just be a rip off.  You would think when you pay $100 for a company gift card that means you‘re giving $100 worth of merchandise at that store.  Not always the case. 

Who knew if you don‘t use them quickly, they can expire or reduce in value.  Sometimes as much—as little as six months, especially those credit card gift cards.  If you don‘t read the very, very fine print, you might not figure that out until it‘s too late, leaving you with a worthless piece of plastic.  I don‘t get it.

So they get our money, they can invest it, use it, do whatever, and in exchange, they get to keep their inventory and then have the nerve to reduce the value of our cards.  Yesterday some members of Congress weighed in on this, requesting the Federal Trade Commission investigate whether consumers are being deceived.

A few states even have laws on the books.  In Georgia, law requires that retailers print once hidden fees and expiration dates on the cards themselves if they‘re issued in that state.  But why should we have to resort to legislation if there are any restrictions on the use of the gift card, any additional fees, any at all I say don‘t buy it.  So what to buy at this late date?  For the men out there, you can go on our Web site and look at my recommendations from yesterday on shopping for that special someone. 

Coming up, me pompous?  Your e-mails are next.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night a federal judge ruled that intelligent design can‘t be taught in biology classrooms, lashed out at the Dover Pennsylvania School Board, saying they were just trying to teach religion.  I said you don‘t have to reject the biblical theory of creation to reject the fundamentally dishonest argument from the intelligent design team.

Chuck Hamby in Bedford, Texas, “Since neither the Darwinists or the backers of intelligent design can definitively prove their case, shouldn‘t both sides be presented to the students as both sides of a court case present their evidence in a court of law?”

If both sides had a case, then yes, but in a courtroom we have something called a motion for summary judgments when a case gets thrown out for lack of evidence.  That‘s what the intelligent designers have offered, a whole lot of speculation that‘s just masking religion.  Why not teach astrology as well as astronomy in schools?

Wendy Thomas in Florida says it well.  “Maybe I‘m missing something.  I always thought that science was defined by formulating hypotheses and testing their validity through observation and experiment.  I don‘t understand how intelligent design falls under the heading of scientific inquiry.  Darwin‘s theory may warrant further scientific debate, but until they, the intelligent designers, can offer a valid scientific alternative, why not just argue for mandatory philosophy courses?”

A.G. Demko, “I was very disappointed in your slanting towards the evolution side.  God was an important part of the founders‘ lives.”

A.G., I‘m not disputing that.  In fact, it sounds like we agree that intelligent design is just a way of saying religion should be taught in schools.  At least there people can have an honest debate as opposed to this dishonest one.

From the University of Minnesota, Greg Laden, “Thank you very much for taking such a rational and appropriately, uncompromising approach in your coverage.  Today‘s decision is important for all who value excellent science education.”

Last night in my “Closing Argument” I said to men, you don‘t have to give in and do the last-minute over the top jewelry purchase.  The jewelry stores are ready to rake you over the coals. 

Lisa in New Jersey, “If a man waits for the day before Christmas to buy a gift for the person who is supposedly the most important person in his life, at very minimum he deserves to get screwed over by the retail industry.  Secondly, no matter what you say, diamonds are and will always be a girl‘s best friend.”  

All right.  Sorry, Lisa.  I suggested maybe a weekend at a great hotel and that if you‘re strapped for time, print out the hotel home page from the Internet to present. 

Danielle in Hawaii, “With advice like that you may be causing a load of men to join in your eating for one filled evenings.  An Internet printout to show her where you are taking her?”

Finally, in the “I‘m a hypocrite” category, Steven Sundberg writes, “I just wanted to let you know what a pompous—insert (EXPLETIVE) -- you are.  You‘re so arrogant you won‘t even let your guest speak.”

I‘m pompous.  I‘m pompous.  Look at how Steven signs all his e-mails.  The great one has spoken, Steven Sundberg.  And I‘m pompous.  Please. 

Your e-mails abramsreport—one word -- @msnbc.com.  “HARDBALL”, with Chris Matthews up next.

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