updated 2/7/2006 10:19:18 AM ET 2006-02-07T15:19:18

Guests: Dave Wedge, Michelle Suskauer, Susan Filan, Kris Kobach, Gerald Lefcourt, Steven Bradigan, Jacob Kronenberg

DAN ABRAMS, HOST:  Coming up, for the first time Attorney General Alberto Gonzales in the hot seat trying to answer the tough questions from senators about the administration‘s domestic spying program. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  He says it‘s all legal, but even the lead Republican on the Senate Judiciary Committee is skeptical.  We‘ve got the highlights. 

And the parents of one of the prime suspects in Natalee Holloway‘s disappearance speak out about the night they say Joran van der Sloot left Natalee on the beach. 

Plus, what could be a major detail in the investigation into who killed a Massachusetts mother and her baby daughter.  It involves the father and the family car. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  First up on the docket, he may have left them stranded.  That‘s what a source close to the investigation into the murder of Rachel and Lillian Entwistle is telling the “Boston Herald”.  The BMW that Neil Entwistle drove to the airport the morning of January 21, which has since been seized by police was according to the source, the family‘s only car. 

The car was found at Boston‘s Logan Airport the day after the bodies of 27-year-old Rachel and 9-month-old Lillian were found shot to death under a pile of blankets in the master bedroom of their home.  Neil Entwistle remains a—quote—“person of interest” in the investigation.  His behavior though raising some suspicion. 

He flew to England around the time of the murders.  His name was on a passenger list for a British Airways flight scheduled to leave Boston the morning of January 21, just over 24 hours before his wife and daughter‘s bodies were discovered.  He didn‘t show up for questioning by Massachusetts authorities at the U.S. embassy in London last week.

He didn‘t come back to the states for his wife and daughter‘s funeral.  Neil Entwistle remains in England at his parents‘ home.  Meanwhile, detectives have seized his computer and they‘re doing ballistic testing on Rachel Entwistle‘s stepfather‘s gun collection to see if any of his guns may have been fired, may—also may—to see whether (INAUDIBLE) the bullets that killed Rachel and Lillian.

They are also checking the guns for fingerprints, any traces of DNA, et cetera.  But that one bombshell is what I really want to focus on. 

Joining me now “Boston Herald” reporter Dave Wedge—once again joins us -

MSNBC analyst, former Connecticut prosecutor Susan Filan, and criminal defense attorney Michelle Suskauer.

Dave, all right let‘s start with this report.  One of your colleagues reporting that a source saying that this was the family car.  I mean I would think you guys based on the amount of reporting you‘d be able to do, would pretty much be able to rule out the notion that there was another car, for example, at the crime scene. 

DAVE WEDGE, “BOSTON HERALD” REPORTER:  Yes, we have been able to confirm that that BMW that was at Logan Airport is the only family car that the couple had.  As you reported, their car was at Logan Airport for several days after the bodies were found.  It‘s now impounded at the Hopkinton Police Department and remains there.  So it seems a bit unusual that a father would take the...

ABRAMS:  Well...

WEDGE:  ... only family car and leave it at the airport.

ABRAMS:  A bit unusual may be an understatement. 

(CROSSTALK)

ABRAMS:  Let me just clarify.  So, again, fact, apart from analysis for a minute, just fact.  The fact is...

WEDGE:  Sure.

ABRAMS:  ... that this is the only family car, the car that this family used together and that he drove it to the airport to take a flight to England and left it at the airport, correct? 

WEDGE:  Well we know the car was left at the airport.  I guess we don‘t know if he is in fact the person who drove it there.  One can only, you know you can deduce that, but I guess the possibility is there that maybe...

ABRAMS:  Well, all right...

WEDGE:  ... someone else was in the car with him. 

ABRAMS:  The car is at the airport and he was at the airport at around the same time? 

WEDGE: That‘s right.

ABRAMS:  All right. 

(CROSSTALK)

ABRAMS:  Michelle Suskauer, that to me is the worst detail that‘s come out for this guy since this investigation started.  I would argue even worse than the idea that he didn‘t come home and didn‘t go to the funeral of his daughter and child.  While that as a moral matter seems reprehensible, at least you can make the argument that oh, you know, he‘s with his family now.  He needs to be reassured.  He needs to be comforted.  He was concerned that he was going to be mistreated when he came here.  How do you possibly explain how the family car ends up at the airport if he is a completely innocent man who just simply went for a trip to England? 

MICHELLE SUSKAUER, CRIMINAL DEFENSE ATTORNEY:  Well you know the reporter also nails it on the head.  We don‘t know whether he was the one who drove it to the airport...

ABRAMS:  So somebody...

SUSKAUER:  We don‘t know whether a neighbor...

ABRAMS:  All right...

SUSKAUER:  ... or a friend...

ABRAMS:  OK.

SUSKAUER:  ... could have driven it and should have driven it back. 

ABRAMS:  All right...

SUSKAUER:  Let‘s look and let‘s wait...

ABRAMS:  So a friend or a neighbor...

SUSKAUER:  ... for the forensics to come back from the car... 

ABRAMS:  Wait.  Let‘s be clear.  Let‘s be clear as to the scenario that you‘re laying out for us.  A friend or neighbor may have taken him to the airport in his car, their family car, and then parked the car at the airport and left it there?

SUSKAUER:  I mean I don‘t know why the car is still at the airport.  Certainly, it‘s very easy to jump to the conclusion that he drove it there because he was trying to escape...

ABRAMS:  Oh, because it makes common sense...

SUSKAUER:  ... abandoned the family.  OK—but well—you know—but we‘re also—it‘s very easy to just jump that way and let‘s look and see what the forensics are going to show here from the car.  Other fingerprints, interviewing his family, his neighbors, his co-workers, were they supposed to bring it back?  What else was found in the inventory of the car?  We don‘t know that yet. 

ABRAMS:  I don‘t know.  Susan, this is a bad detail for this man. 

SUSAN FILAN, MSNBC LEGAL ANALYST:  What‘s being suggested is completely preposterous and goes against common sense.  And don‘t you think that if a neighbor drove that car to the airport...

ABRAMS:  They‘d drive it back.

FILAN:  ... would have heard from that person by now?  Yes, of course they‘d drive it back, but if they didn‘t, don‘t you think they would have said hello, by the way, I drove the car there.  It‘s preposterous.  Common sense says you don‘t leave a woman and a 9-month baby home alone without a car.  And if you do, that woman is going to have called her mom or her friends or her neighbors to let them know hey, I‘m here with a baby without a car.  If this child gets sick...

ABRAMS:  Right.

FILAN:  ... or I need something you‘re going to have to help me out. 

ABRAMS:  I guess it‘s possible, Michelle...

(CROSSTALK)

ABRAMS:  ... right, I mean it seems to me the only...

(CROSSTALK)

ABRAMS:  ... non sort of explanation that doesn‘t defy credibility completely is, I guess, the notion that he may have found the bodies and then just lost it. 

SUSKAUER:  It‘s possible.  Is it also possible that there were other arrangements that were made with neighbors or friends for her to have transportation?  How long was this trip supposed to be?  There are so many things that we don‘t know.  But we—I guess unless he is interviewed—until he‘s interviewed we‘re not really going to find that out.

ABRAMS:  And what do you make of the fact that he won‘t be interviewed by the authorities? 

SUSKAUER:  Well, certainly...

(CROSSTALK)

ABRAMS:  ... take a lot of deep breaths.  They got to go (INAUDIBLE) well (INAUDIBLE)...

SUSKAUER:  You know, you know, listen...

ABRAMS:  (INAUDIBLE)

SUSKAUER:  ... when you—Dan, when you put all these facts together, OK, it‘s tough.  It‘s tough.  But certainly, if he was my client I would tell him absolutely, don‘t make any statements. 

ABRAMS:  Yes.

SUSKAUER:  OK.  There‘s no reason why he should be making any statements.  The fact—for me I think the toughest fact that‘s working against him is that he didn‘t come home for the funerals.  I mean...

ABRAMS:  Yes.

SUSKAUER:  ... I think that was a tough one for me to swallow.

ABRAMS:  It‘s hard to find—I mean look and this guy—let‘s be clear—this guy has not been charged with any crime.  He is considered only a person of interest at this time. 

SUSKAUER:  Yes, but a person of interest, a person of interest...

(CROSSTALK)

SUSKAUER:  He is the main suspect.  I mean that is such a euphemism. 

ABRAMS:  Of course he is. 

(CROSSTALK)

ABRAMS:  Of course it is.  Look—I mean, look, but this is what they‘re calling him.  I‘m just—I‘m saying...

(CROSSTALK)

ABRAMS:  ... in a way in his defense to say, you know, we always get -

oh you guys are prosecuting him.  You‘re persecuting—I‘m laying out the facts and the facts look terrible, so I‘m also pointing out that the prosecutors have not concluded based on those facts yet that they have enough evidence to arrest him. 

And Dave Wedge, what are you hearing from the office there about when anybody might be charged with this crime? 

WEDGE:  There‘s deafening silence coming out of that office right now.  As you said, he remains in England.  His family is here.  It‘s surprising to me as a reporter that no one from his family has issued any type of statement standing by him or professing his innocence or anything along those lines.  And as far as Martha Coakley going, we‘re just getting the same...

ABRAMS:  Yes.

WEDGE:  ... party line that it remains an open investigation.  He‘s a person of interest.

ABRAMS:  Susan, what do you make about the pace of the investigation?  The fact that now they are—you know we were told that they are going and taking the guns.  They‘re testing the guns, et cetera.  How long does this kind of investigation take?  When I say this kind of investigation, I mean based on the facts that we know so far? 

FILAN:  Well I mean good for this district attorney.  She is absolutely proceeding in a logical, methodical manner.  She‘s taking her time.  She‘s getting her forensics together.  She‘s getting the facts together.  And don‘t forget, he‘s in England now.  So really there is no rush.

It‘s not like he‘s about to flee and they‘ve got to get an arrest warrant based on probable cause.  Arrest him, hold him without bail, and then go forward with trying to make a case.  In a way time works for her in this case as long as Scotland Yard keeps a good eye on him and they don‘t lose him in London or England...

ABRAMS:  Yes.

FILAN:  ... because that would be the worst thing that could happen now. 

ABRAMS:  And Dave, are they watching him pretty closely? 

WEDGE:  Our information is that Scotland Yard and the local Nottinghamshire police are keeping a good eye on this gentleman‘s movements. 

ABRAMS:  All right.

FILAN:  And that‘s the perfect way to proceed.  Keep an eye on him.  Gather your facts.  Get your ducks in a row and then go get him if in fact there is probable cause for his arrest. 

ABRAMS:  This guy—look, it seems to me that this guy could be in a lot of trouble.  We shall see.  Dave Wedge thanks a lot.  Susan Filan and Michelle Suskauer are going to stick around.

WEDGE:  Sure.  Thank you.

ABRAMS:  Coming up, Joran van der Sloot‘s parents are speaking out.  Remember him.  The night they say their son left Natalee Holloway on alone on an Aruban beach and why they believe he‘s telling the truth. 

And Attorney General Alberto Gonzales on the hot seat, trying to defend the administration‘s domestic surveillance program before Congress.  Even some Republicans not buying it. 

Plus, a young man suing his teacher for custody of their baby.  He says they met and started an affair when he was her student.  He joins us.

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.  A Senate showdown today between Attorney General Alberto Gonzales and the Judiciary Committee.  At issue:  The once secret National Security Agency program to allow eavesdropping without a warrant on conversations and e-mails of certain Americans believed to be communicating with terrorists.  The attorney general insisting the program was necessary.  That President Bush had the power under the Constitution to order the wiretaps and that Congress added to those powers when it authorized the use of military force after 9/11. 

(BEGIN VIDEO CLIP)

SEN. PATRICK LEAHY (D), VERMONT:  Can you show us in the authorization of the use of military force what is the specific language you say that‘s authorizing wiretapping of Americans without a warrant? 

ALBERTO GONZALES, United States ATTORNEY GENERAL:  Sir, there is no specific language but neither is it specific language to detain American citizens and the Supreme Court said that the words all necessary and appropriate force means all activities...

LEAHY:  But, but there wasn‘t a law—they didn‘t have a law specifically on this. 

GONZALES:  Sure they did...

LEAHY:  Here‘s a Jackson (ph) test, they have a law on wiretapping.  It‘s called FISA.  It‘s called FISA and if you don‘t like that law, if that law doesn‘t work, why not just ask us? 

GONZALES:  And the Supreme Court, Justice O‘Connor said even though the words were not included in the authorization, Justice O‘Connor said Congress clearly and unmistakably authorized the president to detain an American citizen and detention is far more intrusive than electronic surveillance. 

SEN. ARLEN SPECTER (R-PA), JUDICIARY CHAIRMAN:  As a matter of public confidence, why not take it to the FISA court?  What do you have to lose if you are right?

GONZALES:  What I can say, Senator, is that we are continually looking at ways that we can work with the FISA court in being more efficient and more effective in fighting the war on terror.  Obviously, we would consider and are always considering methods of fighting the war effectively against al Qaeda. 

SPECTER:  Well speaking for myself, I would urge the president to take this matter to the FISA court.  They are experts.  They‘ll maintain the secrecy and let‘s see what they have to say. 

SEN. ORRIN HATCH ®, UTAH:  It‘s my understanding, as I have reviewed this and as I‘ve looked at a lot of the cases that virtually all of the court—federal courts of appeal that have addressed this issue or the issue have affirmed the president‘s inherent constitutional authority to collect foreign intelligence without a warrant.  Is that a fair statement? 

GONZALES:  It is a fair statement, Senator, that all of the court of appeals that have reviewed this issue have concluded that the president of the United States has the authority under the Constitution to engage in warrantless searches, consistent with the Fourth Amendment for the purpose of gathering foreign intelligence.

(END VIDEO CLIP)

ABRAMS:  Has the authority but that doesn‘t answer the question of whether FISA, that law passed by Congress in 1978 then becomes irrelevant. 

Kris Kobach is a constitutional law professor at the University of Missouri at Kansas City, former counsel for Attorney General John Ashcroft.  He‘s discussed this with us many times.  And Gerald Lefcourt is of course the well-known civil rights and criminal defense attorney joins us as well. 

All right, Professor Kobach, I mean look, it just seems to me like every time Gonzales was asked a specific question, he would jump back to generalities.  Meaning, if he was asked about the FISA law, specifically about what it was in FISA that authorized him to do this, in essence it sounds like what he‘s saying is it kind of doesn‘t matter what‘s in FISA. 

KRIS KOBACH, CONSTITUTIONAL LAW PROFESSOR:  Well I think to a certain extent the attorney general is boxed in by the necessity of this being classified information, so if he were to...

ABRAMS:  Why does that matter?

KOBACH:  ... explain exactly...

(CROSSTALK)

KOBACH:  I‘m trying to get to that. 

(CROSSTALK)

ABRAMS:  I don‘t think you need the facts here to discuss the law. 

KOBACH:  Well you do need the facts to understand why the FISA process doesn‘t fit this kind of surveillance.  The FISA statute says you have to provide certain information in order to get approval. 

ABRAMS:  But that doesn‘t explain why you can go around FISA.  I mean just because he says the facts will—I can‘t discuss the facts with you, that‘s not a legal answer...

KOBACH:  Sure.

ABRAMS:  ... for why he doesn‘t have to go to FISA. 

KOBACH:  Well I think he tried to provide that legal answer.  That‘s a separate question.  Then even if—if FISA doesn‘t fit, then how do you—why can you go around FISA and the administration‘s answers are two-fold.  One is that the authorization of the use of military force gets us through a loophole that was written into FISA itself and their other answer is even if that is not true, article two of the U.S. Constitution gives the president inherent powers, so they sort of have three different arguments they are making. 

ABRAMS:  And Gerry Lefcourt, it seems Senator Specter was skeptical of the arguments.

GERALD LEFCOURT, CRIMINAL DEFENSE ATTORNEY:  Well you know I think the reason why he is skeptical even though he is the Republican choice to chair the Judiciary Committee is because he knows a little bit about our history.  The same power that the government now claims was used to surveil Martin Luther King, anti-war protesters in the ‘60‘s and ‘70‘s, Muhammad Ali even, and the Supreme Court of the United States in ‘72 said you cannot—you do not have the power to surveil American citizens as to foreign intelligence that may be a different question. 

(CROSSTALK)

LEFCOURT:  And in response, Congress passed the FISA law, which has to do with foreign intelligence.

ABRAMS:  I just want to deal with the history though because the attorney general addressed the issue of presidents throughout our history.  Here‘s what he said today. 

(BEGIN VIDEO CLIP)

GONZALES:  Presidents throughout our history have authorized warrantless surveillance of the enemy during wartime and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush. 

(END VIDEO CLIP)

ABRAMS:  What about that, Gerry, when you‘re talking about history?

LEFCOURT:  Because nobody knew that the government was claiming this power.  Just like nobody knew until “The New York Times” disclosed this particular program until it was on the front page of “The Times”.  It was all done in secret.  The problem is we need checks and balances in this country, as Specter...

ABRAMS:  But the FISA court is secret, Gerry...

(CROSSTALK)

ABRAMS:  Gerry, wait a sec. 

(CROSSTALK)

ABRAMS:  But the FISA court is secret.

LEFCOURT:  They don‘t have a blank check. 

ABRAMS:  But the FISA court is secret.  You‘re not suggesting we need to have a public debate about the details of what‘s going on. 

LEFCOURT:  Here‘s what they should do.  Go to the FISA court as even the senator who chairs the Judiciary Committee says and if they are not happy with this program and they may not be, because this is a wholesale you know surveillance of all communications international, if they are not happy with it, then you go to Congress and get authority in a reasonable way to protect the program.

ABRAMS:  Professor, I‘m sorry for interrupting.  Go ahead. 

KOBACH:  OK.  You can‘t sweep aside the history that easily.  Ever since George Washington started opening all letters between the—what was to become the United States and Great Britain, the executive branch has in times of war asserted this authority to warrantless surveil...

LEFCOURT:  Even in no time of war they have asserted it...

(CROSSTALK)

KOBACH:  Right, but the point is—the point of all that history is...

LEFCOURT:  And they were...

(CROSSTALK)

KOBACH:  If you are going to claim that what President Bush is doing now is unconstitutional, then you‘re going to have to also claim that...

(CROSSTALK)

KOBACH:  ... what President Roosevelt did was unconstitutional...

(CROSSTALK)

ABRAMS:  Kris, the FISA Act wasn‘t on the books...

KOBACH:  Correct.

ABRAMS:  ... back then...

KOBACH:  Correct.

ABRAMS:  ... and that‘s what makes this different. 

(CROSSTALK)

ABRAMS:  Here you‘ve got to explain why does that funny, little law...

(CROSSTALK)

ABRAMS:  ... that exist not matter. 

KOBACH:  Let‘s go there.  Let‘s go there.  What you are claiming is that Congress can enact a bill that takes away...

ABRAMS:  They challenged the law...

KOBACH:  ... what the Constitution has given the president.

(CROSSTALK)

ABRAMS:  But they challenge it in court.  They didn‘t challenge it...

KOBACH:  Right...

ABRAMS:  They just said we can ignore it. 

KOBACH:  If the president has the constitutional power, Congress cannot enact a bill to take away that constitutional power.

LEFCOURT:  Dan, all of these...

(CROSSTALK)

ABRAMS:  But wait...

(CROSSTALK)

ABRAMS:  But wait, but wait...

(CROSSTALK)

ABRAMS:  ... who gets to decide that, Kris...

KOBACH:  Sure.

ABRAMS:  The president can‘t just say...

KOBACH:  It would ultimately be decided in court. 

ABRAMS:  Yes, that‘s right and that‘s my point, is they didn‘t go to court.  They didn‘t go to Congress.  They just said you know what, we‘re going to hope that no one notices and we‘re just going to do it our way. 

(CROSSTALK)

KOBACH:  ... and they did brief Congress more than a dozen times. 

LEFCOURT:  Oh but—yes, but the congressmen who was supposedly given this authority to the government don‘t know they gave authority to the government.  What kind of law is that when Senator Leahy who was then chairman of the Judiciary Committee says I never authorized this program.  You know that‘s a nonsense argument...

(CROSSTALK)

LEFCOURT:  ... and I think that what they really should do is to go to the FISA court.  It‘s a secret court...

ABRAMS:  It‘s not going to happen...

LEFCOURT:  ... and let them rule on it.

ABRAMS:  Look, you know it‘s not going to happen...

(CROSSTALK)

KOBACH:  And Gerry, by the way, the FISA court itself, the appellate division of the FISA court has ruled on this question...

(CROSSTALK)

ABRAMS:  They have...

KOBACH:  ... so the president does have authority to do this.

ABRAMS:  They have.  No, no, wait.  But they did not rule on the question of whether they can avoid the FISA court.  They‘ve ruled on the broad issue of the constitutional authority of the president.  That does not address the question of whether they can also violate a law in that same time.

KOBACH:  No, actually the FISA court did say very specifically the president has parallel authority to engage in warrantless surveillance outside of the FISA process and they did say that very clearly...

ABRAMS:  They did not say—Kris, let‘s be clear because we‘ve gone over this before.  You are not saying that the FISA court has ruled on this issue.  Because they haven‘t. 

KOBACH:  No, the FISA court made—of course, they made a general statement...

ABRAMS:  Right.  OK.

KOBACH:  ... that the president has parallel authority. 

ABRAMS:  Right...

(CROSSTALK)

LEFCOURT:  Yes, well just like the general statement that Congress made that you should fight the war.  They take that and run with it and claim that they...

ABRAMS:  Here...

LEFCOURT:  ... can surveil American citizens willy-nilly. 

ABRAMS:  Here‘s attorney general...

LEFCOURT:  They can open their mail.  They can read their e-mails.

(CROSSTALK)

LEFCOURT:  They can listen to their phone conversations. 

ABRAMS:  ... Gonzales talking about the FISA law.

(BEGIN VIDEO CLIP)

GONZALES:  By its plain terms, FISA prohibits the government from engaging in electronic surveillance—quote—“except as authorized by statute.”  Mr. Chairman, the resolution authorizing the use of military force is exactly the sort of later statuary authorization contemplated by FISA safety valve.

(END VIDEO CLIP)

ABRAMS:  Professor, put this into plain English for us.  Explain to us what the attorney general meant in that particular statement. 

KOBACH:  What he is saying is that when Congress authorized the use military force, they authorized the things that would be incidental to fighting the war and one of the things that would be used in fighting this war would be surveilling the enemy, which is exactly what this warrantless surveilling is about.  Communications from al Qaeda into the United States and therefore that fits within the exception within the FISA statute itself.  It says this is the only way you can surveil except as authorized by law and the authorization for the use of military force in 2001 the attorney general says is that authorization by law.

ABRAMS:  I mean Gerry, you do have to concede that the authorization is pretty broad.  Now you can say the president can or can‘t interpret it in a pretty—particular way but the authorization to the president from Congress was a pretty broad one and for them to say now you know look, we didn‘t—some of them to say we didn‘t intend to give you that power, et cetera.  This happens all the time, though, debates about what Congress actually meant and people interpret in it different ways.

LEFCOURT:  Dan, here‘s the problem with that whole argument, is not only did the senators and congressmen have no idea they‘re giving them this power that...

ABRAMS:  Well some of them say...

(CROSSTALK)

LEFCOURT:  ... of course the Republicans.  But not only that...

(CROSSTALK)

LEFCOURT:  ... but you‘re passing statutes at the time like the Patriot Act, which is giving them broad, new authority to do all kinds of things they never did before.  Congress thinks by the statutes they are passing, the amendments to FISA, the Patriot Act that they are authorizing certain activity and then they find out through a newspaper article, not in any other way, that the government has interpreted...

KOBACH:  They were briefed a dozen times.

LEFCOURT:  Oh—that—give me a break.  That they‘re finding out for the first time that there is wholesale surveillance.  What is this surveillance?  Does anybody really know what they‘re doing?  They have the ability to capture two million communications an hour, then run them through large computers with you know checking on words that are used.  And once you are in those computers and you apply for a government job...

(CROSSTALK)

LEFCOURT:  ... do you get it or not? 

(CROSSTALK)

LEFCOURT:  What do you think is going to happen?

KOBACH:  ... speculating what‘s going on.

LEFCOURT:  No, I‘m not speculating.  I have read the books by people who write about NSA.  This is...

(CROSSTALK)

LEFCOURT:  You know this is really broad scale surveillance.

ABRAMS:  Go ahead, Professor.  You want to respond?  Go ahead, Kris.

KOBACH:  Well yes, that is that—look, the surveillance here is only on those communications between a known al Qaeda source or a suspected al Qaeda source, I should say, and someone inside the United States.  These are very targeted. 

And the critics of this program who have been claiming oh it‘s domestic surveillance of U.S. citizens, have been deliberately I would say misleading by making it seem as if all of our phone calls are subject to surveillance.  No, not at all.  Only if we happen to be making international call to someone whose number is unknown, an al Qaeda number, yes, then we might...

LEFCOURT:  So e-mails, telephone calls...

KOBACH:  Or e-mails...

LEFCOURT:  ... out of the United States and mail out of the United States intercepted and run through computers.  And when those computers get your name and you apply for a government job...

(CROSSTALK)

LEFCOURT:  ... you have a problem. 

(CROSSTALK)

KOBACH:  ... you‘re claiming that all international calls and e-mails are being surveilled.  That is not the case.

LEFCOURT:  No, no, no, I‘m not claiming all but millions of bits of information are going—it‘s called data mining.  That is what the NSA calls it.

ABRAMS:  Let me play a little bit more.  This is part of the debate.  Russ Feingold—this is a slightly separate issue, but the question was, was Alberto Gonzales dishonest with the committee when he was asked about a similar issue and that‘s the question.  Was he asked about this issue or another issue on a previous occasion?  Here‘s what happened. 

(BEGIN VIDEO CLIP)

SEN. RUSSELL FEINGOLD (D), WISCONSIN:  You wanted this committee and the American people to think that this kind of program was not going on, but it was and you knew that...

GONZALES:  Senator...

FEINGOLD:  ... and I think that‘s unacceptable. 

GONZALES:  Senator, your question was whether or not the president had authorized conduct in violation of law...

FEINGOLD: The question was...

(CROSSTALK)

FEINGOLD:  Mr. Attorney General, my question was whether the president would have the power to do that.

GONZALES:  And Senator, the president has not authorized conduct in violation of our criminal statutes. 

(END VIDEO CLIP)

ABRAMS:  All right, Professor Kobach, now take us behind the scenes here?  How much preparation goes into something like this?  I mean I‘ve got to believe...

KOBACH:  A lot. 

ABRAMS:  ... that Alberto Gonzales knows he‘s going to be a sort of pinata out there for many of the senators. 

(CROSSTALK)

ABRAMS:  Do they go through a lot of Q and A, a mock question/answer session?

KOBACH:  Sure.  Yes, having gone through this with Attorney General Ashcroft...

ABRAMS:  Right.

KOBACH:  ... a number of times, yes, there would be lots of people sitting around the table, trying to anticipate every question and throw those questions at him. 

LEFCOURT:  You know that‘s an interesting dialogue, which you just presented, Dan, because you know they are not going to do anything in violation of law, but the law is not in the Supreme Court that they are following.  It is not in any statute that Congress passed.  It‘s their own law.  It‘s their own statement of what they think the presidential power is that has never been tested. 

UNIDENTIFIED MALE:  Well...

LEFCOURT:  That is really bizarre. 

ABRAMS:  I got to wrap it up, but Professor Kobach gets the final 15 seconds.

KOBACH:  Yes, there are some precedents that are at work here and one that keeps coming up in these hearings is the Hamdi versus Rumsfeld case where the Supreme Court took those same words in the authorization for the use of military force and interpreted them pretty broadly and said hey you know that includes things like detaining U.S. citizens at Guantanamo Bay.  And the administration‘s argument is hey if that‘s included in these words...

(CROSSTALK)

LEFCOURT:  ... everybody knew Hamdi was arrested.  Nobody knows about...

ABRAMS:  I got to wrap...

LEFCOURT:  ... surveillance.

ABRAMS:  I got to wrap it up.  You know, Kris Kobach, I was going through my old papers the other day from some old case I was covering and I saw that interview (INAUDIBLE) 1999 on something.  I had totally forgotten about it.  This guy looks so young.  He‘s been around...

(LAUGHTER)

ABRAMS:  All right, Professor Kobach, Gerry Lefcourt, thanks a lot. 

Appreciate it. 

UNIDENTIFIED MALE:  My pleasure. 

ABRAMS:  Coming up, the parents of one of the key suspects in the Natalee Holloway case speaking out about the night they say Joran van der Sloot left Natalee on the beach.  Coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  For the first time in months the parents of one of three suspects in the May 2005 disappearance of Natalee Holloway are speaking out.  Anita and Paul van der Sloot, parents of Dutch teen Joran, sat down for an interview with “Good Morning America” speaking about why their son would have left Natalee behind on the beach the night she disappeared. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  That was the most difficult thing to deal with as a parent.  And for him, it is also the thing that he regrets every day, that he did not hand her over to a guard or somebody.  He said that she was able to walk.  And when he mentioned that he wanted to bring her to the hotel, she didn‘t want to go. 

(END VIDEO CLIP)

ABRAMS:  They also stressed that Natalee left the bar, Carlos N‘ Charlie‘s, with Joran and the other suspects, Deepak and Satish Kalpoe voluntarily. 

Joining me now MSNBC analyst, former Connecticut prosecutor Susan Filan and criminal defense attorney Michelle Suskauer.  Susan, what do you make of the notion that Joran tried to get her to come back to the hotel.  You can speculate about what his motives were there, but that he may have then left her on the beach? 

FILAN:  Well I mean it‘s really the ultimate defense by one‘s mom and dad, isn‘t it, to have them say we‘re a little disappointed that our son left this girl alone on the beach at night.  Hello, that‘s a very damning admission.  He‘s the last person seen with her alive, leaves her alone on the beach, no witnesses, nobody can say whether she‘s alive or dead and yet his own explanation is hey I tried to get her to back to the hotel but she wouldn‘t come with me.  It‘s not—I don‘t think it‘s helpful to him whatsoever. 

ABRAMS:  Michelle? 

SUSKAUER:  I really don‘t agree.  Aruba is so prosecutorial oriented. 

They did not have enough evidence.  They still don‘t have any evidence.  And his parents, you know, it‘s about time his parents actually spoke up, but I can understand why they haven‘t until now because his father was in jail and not until recently, but you know his father was a suspect.  His father was the focus of a lot of this negative attention.  So I really don‘t think that it‘s a negative thing.  They did not have enough evidence and they won‘t in this case, they never will to charge this guy. 

ABRAMS:  Yes, I mean...

(CROSSTALK)

ABRAMS:  Let‘s remember—I was just going to say, Susan, let‘s remember that the authorities there have arrested Joran and the Kalpoe brothers, held them, arrested the Kalpoe brothers again, et cetera, so they certainly seem to be...

(CROSSTALK)

ABRAMS:  ... trying to make some sort of case. 

FILAN:  Well they‘re trying to make some sort of case, but can you imagine how this must sound to Natalee‘s mom that the suspect‘s parents are disappointed that he left her on the beach?  Hello.  How do you think she must feel hearing this?

I think, you know, there may be some difficulties with prosecuting this case in terms of gathering evidence and I‘m sure they are not done yet, but the suspicion has still got to be with the young man that was last seen with her alive and now having his own parents come on and say yes, we‘re disappointed in him and yes, he probably shouldn‘t have just left her there on the beach, I don‘t think it‘s helpful to him at all. 

ABRAMS:  But I think we kind of knew about this.  I mean, Michelle, I don‘t know that substantively...

SUSKAUER:  (INAUDIBLE)

ABRAMS:  ... that‘s really new the idea that he says he left her there. 

SUSKAUER:  No, no, it‘s not new and it‘s just mere suspicion.  And even in Aruba it‘s not enough and in Aruba...

ABRAMS:  Even in Aruba...

SUSKAUER:  ... where you can hold somebody for five months...

ABRAMS:  Even in Aruba...

SUSKAUER:  Even in Aruba where you can hold somebody for five months, where you can interrogate them without an attorney, they didn‘t have enough on this guy.  So it‘s just—they really don‘t.  And it‘s like—Dan, just like you said, it‘s not enough and it‘s not new information...

ABRAMS:  Susan...

SUSKAUER:  ... I don‘t think...

ABRAMS:  Susan, generally a smart move do you think for the parents to speak out?

FILAN:  Absolutely not.  Absolutely not.  I mean really it makes him look worse that mom and dad have to go on “Good Morning America” and try to make him sound like poor him, he‘s having trouble in college and he doesn‘t trust people now and life hasn‘t been so good for him since he left Natalee Holloway alone on the beach.  It shouldn‘t be good for him and I don‘t think his mom and dad should be going on...

ABRAMS:  Yes.

FILAN:  ... trying to defend him. 

ABRAMS:  Yes, look, I mean obviously the smarter thing would have been to come on the program about justice and as a result, they could have really faced the tough questions, but you know...

UNIDENTIFIED FEMALE:  But the fair questions, Dan...

ABRAMS:  Everyone...

UNIDENTIFIED FEMALE:  The fair questions...

ABRAMS:  That‘s true, the fair questions, the tough questions, but everyone makes choices...

UNIDENTIFIED FEMALE:  (INAUDIBLE)

ABRAMS:  ... in life. 

SUSKAUER:  Right. 

ABRAMS:  And we are going to have Beth Holloway Twitty on the program tomorrow to talk about some of the comments that the van der Sloots made about her.  Thanks to Michelle and Susan Filan.

Coming up, he says they met in the classroom, now he‘s suing for custody of the child he had with his former teacher.  That student joins us next. 

And more violent protests break out in much of the Muslim world because of cartoons printed in a Danish newspaper.  Political cartoons, they‘re supposed to be provocative, but not this provocative.

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:  Coming up, a former high school football star fighting his former teacher for custody of their baby.  That‘s right.  The student joins us next. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  More than two years ago Steven Bradigan, then 17 and captain of his high school football team in Strongsville, Ohio, says he won a contest.  His 36-year-old Special Ed teacher came up with the student who most improved his grades won a dinner with her.  Steven won and says his teacher, Christine Scarlett, came on to him in the parking lot afterwards. 

He says he initially refused her advances.  She started to cry.  They soon began a sexual relationship that lasted on and off for more than two years, according to him.  Scarlett says nothing improper happened while she was Steven‘s teacher, but she admits the two later had a sexual relationship.  She kind of has to admit it.  They—she had a child two years ago and the DNA proves Steven is the father. 

Steven and his family are now suing for full custody of the child and they‘re going after the school district and police department they say for not stopping the relationship.  Joining me now is Steven Bradigan who says he began that relationship with his 36-year-old teacher when he was 17 and his attorney, Jacob Kronenberg.  Thanks a lot to both of you for coming on the program.  Appreciate it.

UNIDENTIFIED MALE:  Thank you.

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  All right.  Before we get into the legal side of this, Steven, just give us a sense of how this started, how long it lasted, et cetera.

STEVEN BRADIGAN, HAD SEXUAL RELATIONSHIP WITH FORMER TEACHER:  It started at the beginning.  It only lasted for a couple of months.  And then after it—a couple years later, it went on just for a couple of weeks. 

ABRAMS:  Was she nervous about having photos taken, et cetera?  I mean we have all these photos of the two of you.  You would think that if she were your teacher at that time, she wouldn‘t want to have those photos taken. 

BRADIGAN:  Right.  She wasn‘t nervous at all.  It was—I don‘t know. 

ABRAMS:  And you say that she—again, just for the background of this, that you initially resisted her but eventually agreed to it?  Is that the way it happened? 

BRADIGAN:  Correct. 

ABRAMS:  You now want custody of the child.  Why now? 

BRADIGAN:  Well, honestly we just found out a little bit ago that it was mine.  We had the DNA confirm that it was mine and then we went forward with it. 

ABRAMS:  But why are you asking for sole custody?  I mean why not share the child with her and take turns, et cetera?

BRADIGAN:  Initially we didn‘t.  That‘s what we tried to do.  And they strongly refused with her husband trying to fight me. 

ABRAMS:  When you say fight you, you mean in court? 

UNIDENTIFIED MALE:  Yes, Dan.

ABRAMS:  Yes.  All right, here‘s—this is a statement from the teacher‘s attorney.  We called them, offered them an opportunity to come on the program.  This is what they want to say.

Steven Bradigan at all times during the relationship was of legal age of consent.  During Ms. Scarlett‘s tenure at school there was no sexual relationship with Steven.  This is a private matter having to do with the custody of a child. 

So, Steven, you are certain it happened while she was a teacher of yours, right? 

BRADIGAN:  Yes. 

ABRAMS:  Mr. Kronenberg, are you going to be able to—does that matter in this case?

JACOB KRONENBERG, ATTORNEY FOR STUDENT WHO HAD SEX WITH TEACHER:  Well

it matters not necessarily for the custody case, which I am helping Steven with, but it does have an impact upon a civil claim that a different lawyer is representing Steven in and there‘s also the issue that the police authorities will choose to investigate and prosecute or not as is their discretion as to whether there was something legally and criminally improper.  From the point of view of the custody case, it doesn‘t make that much of a difference with the exception that if this woman does in fact get convicted and is in jail, makes it hard for her to be a custodial parent.

ABRAMS:  Very quickly, what‘s the age of consent, Mr. Kronenberg?

KRONENBERG:  Well the age of consent is 16, as I understand it, although I don‘t practice any criminal law, but it‘s—there are portions of the statute as it‘s been explained to me by my friends who do that impact upon the position of authority that one individual...

ABRAMS:  All right.

KRONENBERG:  ... may have over another. 

ABRAMS:  In a civil context.  All right, but here‘s what the police...

KRONENBERG:  Also in the criminal context, Dan.

ABRAMS:  All right, but if he‘s—look, if he‘s over 16, which it seems he was, it seems...

KRONENBERG:  No one disputes that.

ABRAMS:  Right.  And here‘s what the police chief says.  If anyone had brought this complaint to us, I assure you we would have pursued it immediately.  They never filed a police report with us.

KRONENBERG:  No, I‘m not sure that‘s entirely accurate and...

ABRAMS:  That‘s what the police chief says...

KRONENBERG:  ... and I appreciate that.  I‘ve not had any discussions with the police chief.  I only myself was involved in this about a year ago when Steven approached me and we had a chance to take a look at the DNA test and also approach Ms. Scarlett about trying to do a rational, civil, as you suggested, shared parenting.  Our proposal has not at all been worthy of a response apparently, according to her attorney because I just haven‘t heard from them in the year‘s time we‘ve been trying to resolve this.

ABRAMS:  My guess is after your appearance on this program, you will hear from him.  That‘s just the way it usually seems to happen.  But Steven, you still have any feelings for her? 

BRADIGAN:  I‘m sorry?  What?

ABRAMS:  I‘m saying do you still have any feelings for her? 

BRADIGAN:  Yes.  My feelings toward her is she is the mother of my son that I love more than anything.

ABRAMS:  How much time have you spent with this—with your son? 

BRADIGAN:  Every Tuesday and Thursday for off and on, a couple months, three months. 

ABRAMS:  And is your concern that that arrangement just isn‘t working out?

BRADIGAN:  It‘s not that it isn‘t working out.  It‘s—I‘m seeing him at their convenience.  He‘s not spending nights.  He‘s coming and going.  Sometimes we don‘t know when she is dropping him off, when she‘s picking him up.

ABRAMS:  At the time I assume you were happy about this affair, correct? 

BRADIGAN:  I‘m sorry? 

ABRAMS:  I‘m saying at the time you had this relationship with your teacher, you were happy about it?  You enjoyed it, et cetera.  You didn‘t feel violated back at the time, back—when it was happening? 

BRADIGAN:  Not at the time. 

ABRAMS:  Right.  All right, Steven Bradigan, Jacob Kronenberg, thanks a lot for coming on the program.  Appreciate it.

KRONENBERG:  Thank you, Dan.

BRADIGAN:  Thank you.

ABRAMS:  Coming up, protesters upset with a political cartoon take their anger out against another Danish embassy.  This time in Iran.  Enough is enough.  It is a cartoon.  It is my “Closing Argument” coming up.

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike.  Our search today is in Minnesota.  Authorities are looking for Timothy Bryant.

He‘s 35, five-eleven, 204, convicted of sexual contact with girls between the age of 6 and 10, hasn‘t registered his address with the state.  If you‘ve got any information, that‘s the number to call, 651-266-5685. 

It‘s in St. Paul, Minnesota.

Be right back.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—in Webster‘s dictionary one definition of carom is—quote—“a ludicrously simplistic, unrealistic, or one-dimensional portrayal or version.”  Unrealistic.  Ludicrous.  So how do fringe elements of one religion turn a cartoon into an international uproar call to arms so great that even the unusually unwavering U.S. media now unwilling to even show the cartoons that generated the news? 

Four months after a Danish newspaper first published cartoons of the Islamic prophet Mohammed, one of which depicted him with a turbine shaped like a bomb, violent protests have erupted in Lebanon and Syria.  The Danish embassy in Beirut burned.  A Lebanese Christian neighborhood destroyed over the weekend.  Today troops in Afghanistan opened fire on demonstrators killing four.  In Somalia a stampede killed a teenager. 

In Iraq, protesters called for the death of anyone who insults Mohammed.  In Iran, the Danish and Austrian embassies hit with Molotov cocktails by protesters.  Now all of us in the media here rightly afraid of what impact showing these cartoons could have.  Freedom of the press is a nice principle, but if it‘s going to lead to people being hurt or killed, it can and should cloud your journalistic judgment. 

I am not surprised that no media outlets including this one are broadcasting the cartoons in question, but free press is not the point here.  Why don‘t we see protests like this when terrorists impugn the prophet Mohammed by killing civilians and then claiming it was done in his name?  Not since a later retracted report in “Newsweek” magazine about a Koran being flushed down the toilet by American interrogators at Guantanamo has the press been so scapegoated. 

There some blamed “Newsweek” for more than a dozen deaths in various Middle Eastern countries.  Now the Danish and other European editors who printed the cartoons are taking the heat.  And while it seems some bad decisions were made, let‘s be clear, in both cases the violence stems from extremism.  We‘re talking about caricatures, much like the ones that regularly appear in the Arab press demeaning Jews.

The Anti Defamation League releases a list every month of anti-semantic cartoons, which appear in the Arab press.  Not to mention how Christ, the Virgin Mary and other symbols sacred to Christians are sometimes mocked.  Look at the animated series “South Park” for example.  Cartoons are caricatures.  That doesn‘t mean they‘re funny or appropriate.  But let‘s not lose focus of what this is about.  It‘s an excuse, a way for a few to take advantage of the deeply held religious views of many others. 

Coming up, a lot of you writing about Friday‘s segment on surgical castration for sex offenders.  Your e-mails are next. 

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday I talked to a Virginia state senator, Emmett Hanger, who is proposing mandatory physical castration for adults who rape children.  Other sex offenders could agree to be castrated instead of being civilly committed.

Raymond in Ohio, “It concerns me that everyone wants the offenders caught and many people are throwing out drastic measures for punishment, such as castration.  The public‘s mentality appears to be let them rot in a gutter somewhere or doom them to dead-end low-paying jobs.”

Connie Stake from Winder, Georgia, “Castration cruel and inhuman?  So what is molesting a child considered?”

Frank Dmuchowski, “I agree wholeheartedly that castration is the only true cure.  Castration reduces the sex drive almost completely and greatly reduces the amount of mental imagery that ultimately causes the offender to go after a child.”

From Groton, Connecticut, Dan Reasor, “While I commend the Virginia state senator for thinking outside the box with regard to rehabilitating sex offenders, someone should probably tell him that eunuchs are perfectly capable of sexual activity.”

Michael Comeau, “Does the idiot in favor of forced castration of pedophiles also favor cutting the hands off of thieves?”

We are out of time.  Thanks for watching.  “HARDBALL” with Chris Matthews up next.

See you tomorrow.

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