updated 2/21/2006 11:23:48 AM ET 2006-02-21T16:23:48

Guest: Randall Larson, Representative Peter King, Scott Balber, Dr.

Priscilla Ray, Dr. Beatrice Engstrand, Craig Crawford, John Dolan

DAN ABRAMS, HOST:  Coming up, outrage over plans to turn control of six of America's largest ports over to a company run by an Arab nation. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The White House OK'd New York and other ports being run by a company owned by Dubai, part of the United Arab Emirates, a country two of the 9-11 hijackers called home, but many lawmakers from both sides now saying that doesn't make them feel all that safe. 

And a judge orders a doctor to be present at an execution to make sure it's not cruel or unusual punishment, but most doctors say they cannot and should not have any role in an execution, even if it's to make sure the person does not endure pain?  We debate. 

Plus that lawsuit filed by the family of Natalee Holloway against chief suspect Joran van der Sloot and his father, many are saying it's a weak legal case.  The lawyers who put it together join us to defend it. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, should a company owned by the United Arab Emirates control major operations at some of the biggest American ports, cities like New York, Miami, Baltimore, Philadelphia and New Orleans?  Seems like a done deal.  The $6.8 billion sale of a London-based firm to Dubai Ports World has been approved by a U.S. group that considers security risks when foreign firms invest here.  Homeland Security Secretary Michael Chertoff has effectively signed off on it. 

(BEGIN VIDEO CLIP)

MICHAEL CHERTOFF, HOMELAND SECURITY SECRETARY:  We built in certain conditions or requirements that the company has to agree to, to make sure we address the national security concerns and here the Coast Guard and Customs and Border Protection really played a leading role for our department in terms of designing those conditions and making sure that they're obeyed. 

(END VIDEO CLIP)

ABRAMS:  Now politicians on both sides of the aisle are saying they have serious concerns.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM ®, SOUTH CAROLINA:  When it comes to national security issues, we want to maintain the infrastructure ourselves.  We believe we are under siege, we are.  I don't think now is the time to outsource major port security to a foreign-based company. 

SEN. BARBARA BOXER (D), CALIFORNIA:  I'm going to support legislation to say no more, no way.  We have to have American companies running our own ports.  Our ports are soft targets; we're very worried about them.

(END VIDEO CLIP)

ABRAMS:  The question of course everyone is asking, is this just being politicized.  Representative Peter King is a New York Republican, chairman of the Homeland Security Committee, also serves in the International Relations Committee.  Randall Larson is director of the Institute for Homeland Security.

All right, Mr. Larson, let me start with you.  I mean we've heard people, you know, senators on both sides of the aisle saying we don't want the United Arab Emirates running our ports and security for our ports.  There is something about that that has a ring of common sense to it. 

RANDALL LARSON, INSTITUTE FOR HOMELAND SECURITY:  Well you just heard Senator Graham there who I greatly respect, but he's wrong when he says we're outsourcing port security.  We are not outsourcing port security.  Port security is the job of the United States Coast Guard, and Customs, and Immigration.  We're not outsourcing that.  They're just wrong when they look at it that way. 

ABRAMS:  Representative King? 

REP. PETER KING ®, NEW YORK:  Yes, I would disagree with that.  First of all, there have been foreign companies running our ports for a number of years, but what makes United Arab Emirates different is first of all, there was no real investigation done whatsoever.  You're talking about a country which has a significant al Qaeda influence.  We're one of the only governments in the world that recognize the Taliban prior to 9-11. 

And despite all of that, there was very little or no investigation done and I met with the people who are involved in the investigation, was very cursory, and that is a terrible precedent to set.  That law they're basing their activities on was written back in 1988.  In the post 9-11 world, we have to be much more intense.

The investigations have to be, you know, much more in depth as being done right now, and that is the real threat here, not so much that it's foreign, but the fact that it's a company owned by a government which has had a significant al Qaeda influence in the past, even though to some extent, they are cooperating with us now.

ABRAMS:  Yes.  Mr. Larson, there is something—again, for those of us who don't know exactly how this works in terms of the interagency group, that reviews all these kinds of investments, et cetera, there is something for the common person, when you look at this and you say, the United Arab Emirates is going to be running our port security? 

LARSON:  Well, once again, Dan, they're not running the port security...

ABRAMS:  All right. 

LARSON:  They're the port operators...

ABRAMS:  Fine, they're port operators...

(CROSSTALK)

ABRAMS:  ... but here's the concern.

(CROSSTALK)

ABRAMS:  Let's assume for a minute that port operators and let's not quibble over the language, the concern would still be that someone from the United Arab Emirates, a country where many people or at least there are certainly people there and plenty of them, who would like to do bad things to the United States, could infiltrate the company and cause us great harm. 

LARSON:  The folks that work in the port still have to go through the same security procedures that those folks work in ports today.  You realize that almost all the ships that come into our ports are foreign owned too.  This is just not an issue that I think we should be focused on.  There's plenty others about security issues, but this is just not a high priority for me. 

ABRAMS:  Here's Michael Chertoff. 

(BEGIN VIDEO CLIP)

CHERTOFF:  We have the FBI involved.  We have the Department of Defense involved, of what these challenges are.  We have in fact dealt with this port before because we deal with it overseas as part of our comprehensive global security network.  We've built in and we will build in safeguards to make sure that these kinds of things don't happen. 

(END VIDEO CLIP)

ABRAMS:  Representative King, it's hard for me to believe that Michael Chertoff would be effectively signing off on this, knowing how politically dangerous it is, because it does sound awful, unless he really believed that it was OK. 

KING:  Well, Dan, I can tell you, I know what was done as far as the investigation, it was very cursory.  Basically all they did was ask the intelligence community, do you have anything on file, regarding this company.  There was no vetting done, no investigation, no analysis, no one was spoken to, in any depth whatsoever. 

All of this had to be done within 23 days.  And that includes the entire investigation, including the financing, et cetera.  You cannot—listen, anyone who is nominated for a government position, it takes months to clear them.  Here you have an entire company was cleared within 23 days and I spoke to people involved in it, they said it was not a thorough investigation. 

I think what happened here was you had middle level people processing this, the same as they do any other foreign operation.  And they were politically tone deaf.  They were looking at it from a financial point of view as far as foreign investment...

(CROSSTALK)

KING:  ... not dwelling at all on the security part. 

ABRAMS:  But is it—you know, is it possible though that this issue is just being politicized?  Meaning that again it sounds awful when you hear the idea of oh my goodness, the United Arab Emirates is going to be monitoring our ports, but you listen to Mr. Larson, you listen to Homeland Security Director Chertoff, you listen to the administration, you listen to many others and they say look you guys are creating a straw man here.  You're creating a false issue to just bang down and beat up.

KING:  Listen, maybe some people are trying to politicize.  I don't think anyone has supported President Bush more in the war on terrorism than I have.  I have stood by him in virtually every instance and I've been out front for him, but on this one, I really think a mistake has been made.  I think it was made by middle level people in the administration.

It was put on their desk.  I really wonder how much Mike Chertoff was involved in this, until really it was too late and now they're trying to put the best face on this, but again, I've seen the depths of this investigation, and there was very little investigating whatsoever that was done.

ABRAMS:  Mr. Larson, is it possible that more investigation needs to be done? 

LARSON:  I think it would be wonderful if the chairman wanted to look in to this hand do some investigation, but from what I have seen, the folks I have talked to, it's not going to affect port security.  I think there's a legitimate debate about our public infrastructure.  I mean Indiana leased its toll road for 75 years to an Australian company and a Spanish company, so that's a legitimate debate.  Do we want to do that?  I just don't see the security element in this. 

ABRAMS:  So you're saying there's no security issue here, Mr. Larson? 

I mean it just—this just doesn't relate to security at all? 

LARSON:  No, because—well first of all, I think we waste a lot of money trying to put security into ports anyway.  That's not the way terrorists are going to bring weapons in our country.  They haven't done it in the past.  There's far easier ways to do it.  The al Qaeda manual says build your weapons inside the own countries you want to do and to try to protect a port is incredibly difficult anyway.  They're so large.  It's not like an airport where you...

ABRAMS:  But you can't just throw up your arms, right?  You can't just...

(CROSSTALK)

ABRAMS:  ... you know what, so we might as well let the United Arab Emirates take over...

LARSON:  Dan, Dan, last year the DEA said 300 metric tons of cocaine came into the United States.  I don't think any security procedure is going to stop them from bringing in five pounds of anthrax.  That's not where we should be focusing our efforts.

ABRAMS:  But Representative King, I assume you disagree with that. 

KING:  Yes, I disagree entirely.  There's no doubt our ports are vulnerable.  We have to do a lot more to protect them and again I go back to the fact that this is a very unique situation where you have a country with a large al Qaeda presence being involved and they would be involved in security because for them to do the job of operating the port, they have to interface with our security forces, which means they then get to learn all of our security procedures and we become very vulnerable. 

This is a very, very unique and distinct situation and I think it's madness for us to allow this to go forward as business as usual.  This is different from other cases and if we learned anything from al Qaeda, as we know, they have a long memory and they can wait and they can wait this out and to have a company literally within our defensive perimeter, which could be infiltrated by al Qaeda to me is just inviting disaster and I don't want to have another...

ABRAMS:  Yes.

KING:  ... incident like we had on 9-11 and another 9-11 Commission and I (INAUDIBLE) before and I was asked what I did. 

ABRAMS:  Here's the official statement from the Dubai Ports World, the company.

We've received all the necessary regulatory approvals regarding our acquisition including from the Committee on Foreign Investment in the United States, which reviewed the proposed transaction and concluded they had no objection.  We intend to maintain and where appropriate enhance current security arrangements.

So as a result of that, Representative King, is there anything you'll be able to do now or that Congress will be able to do now that the deal has already gone through?

KING:  Actually, the main one who can do it is the president, because this is a top-secret matter which is handled by the, you know, by 12 agencies within the government.  No one even knew about it until it was approved last week.  The only one who can stop it now is the president. 

What I'm asking the president to do is to put this on hold and put it aside until a full and complete investigation can be carried out.  It should be done by the administration in cooperation...

ABRAMS:  All right.

KING:  ... with the Congress and not the cursory way it was done up until now.

ABRAMS:  All right.  Well it doesn't seem that Mr. Larson would challenge that.  He says...

LARSON:  I would not object to that at all.

ABRAMS:  Right.  Representative King, Randall Larson, thanks a lot. 

Appreciate it. 

LARSON:  Thank you.

KING:  Thank you.

ABRAMS:  Coming up...

UNIDENTIFIED MALE:  Thank you, Dan.

ABRAMS:  ... many say the lawsuit filed by the family of Natalee Holloway against chief suspect Joran van der Sloot and his father is a weak legal case.  We'll talk to the lawyer who put it together. 

And a court orders a doctor to be there to make sure the death penalty is not cruel or unusual.  Can a doctor help in an execution?  We debate. 

Plus, another leading Republican comes out questioning the domestic spying program.  After backing him for so long, why are many in the president's own party now saying I don't know that he has the authority to do it? 

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.  During a brief visit to New York last week, Aruban suspect Joran van der Sloot and his father Paulus were served with legal papers, notifying them of a suit filed by the family of Natalee Holloway in New York's Supreme Court.  Now you can understand that Natalee's family says that they believe Joran did it and they want accountability. 

But the question, as a legal matter, can a suit like this which really didn't seem to have a whole lot of facts, survive in a New York court.  Joining us now Scott Balber, one of the Holloway family attorneys who wrote the complaint filed against Joran and Paulus van der Sloot.

Thanks a lot for coming on the program.  Appreciate it.

SCOTT BALBER, ATTORNEY FOR NATALEE HOLLOWAY'S FAMILY:  Thanks for having me.

ABRAMS:  All right.  Let me read some of the charges that you lay out against Joran van der Sloot that he willfully caused personal injury to Natalee as a result of a sexual assault upon her.  Wrongfully and lawfully and intentionally detained and directly restrained Natalee Holloway, depriving her of her personal liberty through force and/or threat of force.  Abducted Natalee Holloway and prevented her from returning to the custody of her parents.

This is all from the civil lawsuit.  My concern was that I read this, you don't explain upon what you're basing this.  A lot of conclusions.  This was done to Natalee.  That was done to Natalee.  Joran did this to Natalee, et cetera, but you don't say where you're getting this from. 

BALBER:  It's not our obligation in this threshold complaint to articulate what our sources are, but I can assure you that Chadbourne and Parke, a serious law firm, John Kelly is a serious lawyer, and we don't put anything into a complaint that we are not abundantly certain we can prove, and in fact in many instances already have the evidence developed. 

ABRAMS:  But then—but what's the point of the legal papers then?  I mean shouldn't the legal papers at least provide some of the support, because I mean, it seems if this is the case, then you can really just throw out a lawsuit there and say, well, I believe that this person did this to that person and this person did that to that, and then at a later point that, what then the judge has to sort through it and say all right now come to me and explain to me why you believe any of this is true?

BALBER:  Well a complaint, as you know Dan, is a notice pleading and actually this complaint has far more detail than many.  We will during the course of discovery and motion practice in this case be able to lay out our cards on the table one by one in the manner we deem appropriate without necessarily giving our adversaries too much of an understanding of where our basis lies at this point. 

ABRAMS:  But it's pretty clear, right—I mean we know this case pretty well.  It's coming from statements that were made by Joran van der Sloot.  It's coming from other people who claim that they've been mistreated by Joran van der Sloot in the past, et cetera.  It's coming from eyewitnesses.  I mean that's where the information stems from, right? 

BALBER:  Among other sources, that's right. 

ABRAMS:  Let me ask you about where you filed the lawsuit, all right?  I mean this is an Alabama girl, Alabama family, and for an incident that occurred in Aruba, with defendants that live in Aruba.  And you're filing it in New York, and there's no question, look, you slapped the papers on him, as a result he has got the papers in hand and now he's going to have to respond in a New York court. 

Fair enough.  We know he's going to have to respond in a New York court now, but when you lay out the factors to consider why a New York court should consider a case about an Alabama girl about something that happened in Aruba, seems like a real long shot for you. 

BALBER:  Well it's actually not a long shot at all.  Let's start with one of the comments you made.  Once we served the defendants in New York, we have unassailable personal jurisdiction over them.  There's no question...

ABRAMS:  But that doesn't mean anything.  Right.  So that means that they have to show up in court and they have to respond.  OK.

BALBER:  That's correct...

ABRAMS:  ... and then the judge is going to do an evaluation to say does this belong in a New York court and when you weigh the factors in New York State, just about every lawyer I've spoken to has said at the very least, you guys have an uphill battle.

BALBER:  We certainly have a battle.  I wouldn't describe it as an uphill battle.  There are—there's several factors that the courts consider and the number one...

ABRAMS:  We're going to put them up.  As you're speaking, we're going to put up the five factors to consider in New York.  Go ahead.

BALBER:  I don't have a video, so I can't...

ABRAMS:  No, that's all right...

(CROSSTALK)

ABRAMS:  You know them, so no need...

BALBER:  I do know them...

ABRAMS:  ... what they are.

BALBER:  But the first premise is that tremendous deference is given to the plaintiff's choice of forum and the plaintiff's choice of forum here is New York.  Beyond that, there's a whole host of private interest and public interest factors.  Now, while you're right, that the events took place in Aruba, there are witnesses in Alabama, Natalee is from Alabama, one of my plaintiffs, Beth Twitty is from Alabama...

ABRAMS:  Right.

BALBER:  ... Dave Holloway is from Mississippi, Joran van der Sloot lives in the Netherlands, and quite frankly, we have witnesses from other jurisdictions...

ABRAMS:  How does that bring New York into play? 

BALBER:  Well New York is the choice of forum, elected by the plaintiffs and the defendants were served here and there is no superior choice of forum.  Every forum, take your pick, be it Aruba, Alabama, Mississippi, the Netherlands isn't perfect and when you have a whole host of imperfect jurisdictions, deference is given to the choice by the plaintiffs and that's our case here. 

ABRAMS:  Yes, that—again, that's—I mean here are some of the factors the court has to consider. 

(CROSSTALK)

ABRAMS:  The burden on the New York courts, I don't know if that will be a big issue.  Potential hardship to the defendant, that would be a big issue in either Alabama or New York.

BALBER:  Well let me stop you right there. 

ABRAMS:  Yes.

BALBER:  Obviously, it's not a hardship because both Joran van der Sloot and Paulus van der Sloot were able to make their way to New York just last week...

(CROSSTALK)

BALBER:  ... without...

ABRAMS:  (INAUDIBLE) You don't just say...

BALBER:  Well...

ABRAMS:  ... oh they were able to get here once and therefore there's no issue of potential hardship to the defendant in getting back to the place.

(CROSSTALK)

ABRAMS:  I mean that's not where the inquiry ends. 

BALBER:  It's certainly a part of the inquiry and of course you consider the hardship to the plaintiffs of having to litigate either in Aruba or in the Netherlands. 

ABRAMS:  The unavailability of alternative forum for the lawsuit, that's one of the issues that you've been focusing on.  The residency of the parties, on that one you have big problems, where the basis of the cause of action arose.  Again, not a good one for you guys. 

BALBER:  Well you skipped one I think abruptly and that is the residence of the parties.  Why is Alabama or Mississippi or Aruba or the Netherlands superior? 

(CROSSTALK)

BALBER:  As I said, there's problems in all of those different forums.

ABRAMS:  Wait.  But the residency of the parties—one of the things you're suppose to consider is are they from New York.

BALBER:  Correct. 

ABRAMS:  They're not.

BALBER:  That's correct.  They're not from New York. 

ABRAMS:  OK.  Anyway, look, it's an interesting case and I understand why it's being done, but again, I just think it's important for the viewers to understand that as a strictly legal matter, this could be an uphill battle for the family.  Mr. Balber, I know you don't like that characterization of uphill battle.  You refer to it as battle, but I appreciate you coming on the program.  I have to say when I saw that your firm had signed off on it, it definitely added to the validity for me of considering the case. 

BALBER:  Well we like the tough battles, uphill or otherwise. 

ABRAMS:  Scott Balber, thanks a  lot for coming on the program. 

BALBER:  Thanks for having me.

ABRAMS:  Lawyer for death row inmates have long argued lethal injection violates the Constitution because it's cruel and unusual punishment.  One judge in California says I got a way to deal with any concerns, if the state wants to use lethal injection, they've got to have an anesthesiologist present to monitor the process.  There's a problem with that.

Doctors aren't supposed to aid in death.  Attorney for death row inmate Michael Morales argued that he might be in excruciating pain during the execution because the sedative might not have taken effect or at all before the heart stopping drugs entered his system.  District Court Judge Jeremy Fogel ordered a doctor be present to make sure Morales is unconscious before the other lethal drugs are administered.

Correction officials at San Quentin have now arranged for an anesthesiologist to be there.  But the medical community is protesting, saying it violates their oath, which makes you wonder is this just about the oath or is it about the death penalty? 

Joining me now is the head of the American Medical Association Council on Ethical and Judicial Affairs, Dr. Priscilla Ray and neurologist Dr.  Beatrice Engstrand.  Thanks a lot both of you for coming on the program. 

Appreciate it.

UNIDENTIFIED FEMALE:  Thanks.

ABRAMS:  All right, Dr. Ray, look, I understand the oath that doctors have to take and their oath is that they are not supposed to aid in death.  That's why Dr. Jack Kevorkian was effectively kicked out of the American Medical Association or the—wasn't allowed to practice medicine anymore and it's why in this case you're opposing this practice, but what about the fact that if there's no doctor there, there are going to be people who are going to be doing this anyway, administering drugs, which may cause pain and suffering. 

DR. PRISCILLA RAY, AMERICAN MEDICAL ASSOCIATION:  Well, that is a very real concern, but it's not a concern of basic medical ethics.  Doctors are supposed to use our skills for the health and welfare of patients.  And we take that oath in the very beginning.  It undermines public trust if we don't follow that oath and therefore we're really prohibited from even assisting in executions, no matter the personal moral decision of the physician as to the death penalty itself.

ABRAMS:  But when you say the public trust, I mean are you really concerned that if there's a doctor, who's basically ordered to be there, I mean a court is saying—doctor is not saying hey look I want this job.  A court is saying you got to have a doctor there.  Are you really worried that the public is going to say, as a result of that, we are losing some faith in our doctors? 

RAY:  Yes.  I think that we have to continue to be healers, not hangmen.  We're supposed to use our skill for benefit...

ABRAMS:  But when you say it like that, it makes it sound like you're just opposed to the death penalty.  When you say healers, not hangmen, that's where my concern lies, is I think that that sounds like someone who is opposed to the death penalty saying we're not going to be involved in this process. 

RAY:  No.  Actually, some doctors are in favor of the death penalty and others are opposed.  That's really irrelevant to medical ethics however. 

ABRAMS:  All right.  Dr. Engstrand, what do you make of this? 

DR. BEATRICE ENGSTRAND, NEUROLOGIST:  Well you know what, society is determined that this man is going to die anyway.  That was a society decision, so the doctor here is not the agent of death.  Rather he's giving comfort, almost as you will to a terminal patient.  I think it's fine for the doctor to be here.  He's not the one killing the patient, he's just giving comfort to the person who is going to be executed. 

ABRAMS:  What do you make of that...

ENGSTRAND:  So that's what I feel. 

ABRAMS:  ... Dr. Ray...

ENGSTRAND:  I don't feel there's anything wrong with it. 

ABRAMS:  Yes.  Dr. Ray, what do you make of that? 

RAY:  I understand that.  However, that physician is still using his skill and competence to assist, supervise or somehow allow someone else to put a patient to death which as a physician, he cannot do. 

ABRAMS:  So again, a doctor is not allowed—I mean you know there are every day people pull the plug, et cetera, there's a medical decision made, that this person—you know, this person can't continue to survive on his or her own or the family wants to pull the plug and doctors are involved in that decision as well. 

RAY:  Yes, that is true, but there are two circumstances under which that occurs.  One is when there is no longer hope for preserving life and health and the second is when it's the patient's wish. 

ABRAMS:  Right.  But so there's not an absolute rule.  I mean you make it sound like there's an absolute rule, doctors can never be involved and the answer is well doctors can be involved sometimes, but you know, we like it in certain cases and we don't like it in this type of case. 

RAY:  Well, that's absolutely true.  We don't like it in the case where it is somebody—it's not someone's wish or the wish of the person that's been appointed to represent their wishes.  In this case, it's someone that presumably does not wish to die and therefore we're using our skill and abilities to help someone die when there is hope of preserving life. 

ABRAMS:  Yes.  I don't know.  Dr. Engstrand, that just sounds like a somewhat random way to distinguish between those.

(CROSSTALK)

ENGSTRAND:  ... there is no hope of preserving life here if the courts have deemed that you know he's going to die, that's up to the courts.  All the doctor is doing here is being a comforter, if you will, a care agent for this person, who's going to die.  He's not getting involved with his decisions legally or morally or whatever.  Many years ago, I treated Rikers Island prisoners at Kings County. 

It wasn't up to me to say whether they deserved to be there, I was to administer care.  So this doctor is administering comfort care to get the person out of pain and many doctors nationwide give pain medicine to people, so I don't see anything wrong or even unethical about it and that's leaving out my feelings about the death penalty totally.  I'm just looking at the question here that you pose, Dan.

ABRAMS:  Here's what the American Medical Association's official position is on this.

A physician is a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.  The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine, first, do no harm.  Requiring physicians to be involved in execution violates their oath to protect lives and erodes public confidence in the medical profession.

See, Dr. Ray, my concern is, that this is actually going to erode faith in the medical profession by making this choice, because the medical profession has made other choices, for example, with regard to abortion, with regard to pulling a tube from someone where that is the substance of life, et cetera.  So there isn't an absolute rule and yet, when you read these statements and you listen to some of your statements, it sounds like you're saying well there is an absolute rule.  Then when you get into it, it's clear there isn't really one and you're picking and choosing and it starts to feel political.

RAY:  Well there is an absolute rule against participating in executions.  There certainly isn't one against people wishing to die...

ABRAMS:  That's a rule that you guys have made. 

RAY:  Right.  It's an ethical...

ABRAMS:  Right.

RAY:  ... tenet that actually goes back to the oath of hypocrites...

ABRAMS:  Well...

(CROSSTALK)

ABRAMS:  Well, it's an interpretation of the oath of hypocrites.

RAY:  That's correct. 

ABRAMS:  Right and the interpretation, my concern is that it could be perceived as political. 

RAY:  I think it could be, but you will find doctors of all political persuasions, those who are very much for and very much against the death penalty, as well as every other political statement in the country.

ABRAMS:  What are you going to do to the anesthesiologist if you find out who it is, who is in California helping out? 

RAY:  Well actually the procedure is that the Council on Ethical and Judicial Affairs hears cases that are brought to us in one way or another.  We don't go out looking for people.  If it is brought before us, we'll carefully hear that, listen to all the evidence, and make a ruling as to that physician's membership if he or she is a member.

ABRAMS:  And if he—but look, if he did it or she did it, he's out, right? 

RAY:  Oh not necessarily, but...

ABRAMS:  All right.

RAY:  ... if that is actually proven and we hear all the evidence...

ABRAMS:  Yes.

RAY:  ... and that's the finding, then maybe so. 

ABRAMS:  Yes.  All right.  Doctors Ray and Engstrand, thanks a lot for coming on the program.  Appreciate it.

UNIDENTIFIED FEMALE:  Thank you.

ABRAMS:  Coming up, another leading Republican comes out against the president's domestic spying program.  Why are many from his party turning on him now?

And a family takes the law into its own hands catching a peeping tom as he watched their daughter.  We've got the tape.  We'll talk with the cop who helped track the suspect down.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, President Bush says Congress gave him the authority to spy on certain Americans overseas communications, so why are more and more Republicans in Congress saying no we didn't?  First the headlines. 

(NEWS BREAK)

ABRAMS:  We're back.  One by one, we've been seeing Republicans coming out of the bushes, so to speak, to call for congressional oversight and/or judicial review of the administration's domestic surveillance program.  Republican Senator Lindsey Graham. 

(BEGIN VIDEO CLIP)

GRAHAM:  Having congressional support for a program like this makes us stronger as a nation.  I do believe we can provide oversight in a meaningful way without compromising the program and I am adamant that the courts have some role when it comes to warrants.  If you're going to follow an American citizen around for an extended period of time, believing they're collaborating with the enemy, at some point in time, we need to get some judicial review because mistakes can be made. 

(END VIDEO CLIP)

ABRAMS:  So what happened?  It seemed that this issue would divide almost directly along party lines.  Joining me now is “Congressional Quarterly” columnist and MSNBC political analyst, Craig Crawford. 

Craig, good to see you.

CRAIG CRAWFORD, “CONGRESSIONAL QUARTERLY” COLUMNIST:  Hi, Dan... 

ABRAMS:  Bottom line, what's going on?  I thought this was going to divide right along party lines. 

CRAWFORD:  I always thought this might happen, Dan.  Early on, privately many of these Republicans were worried about the challenge that congressional power of this represents.  This is the dilemma for Republicans.  Do they wear their party hat and defend their president?  He's probably ponied up an issue that will help him in the midterm elections or do they wear their congressman hat and defend their branch of government against the presidential reaching...

ABRAMS:  But I would think with the midterm elections coming up that it would be a lot more important to pursue the issue that is more politically viable rather than the one that sort of demands that the president effectively report to the Congress in this context. 

CRAWFORD:  Very true, except that I do think we have a turning point here in presidential versus congressional authority in the national security arena that many Republicans are beginning to realize for decades now, over the course of many presidents.  The Congress has seated so much authority time and time again that it's at a point now where it just almost wipes out of the Constitution the Congress' power in this area. 

ABRAMS:  Is it possible that maybe these senators are not viewing this politically?  I mean...

CRAWFORD:  Yes.

ABRAMS:  ... I hate to even ask this, but...

CRAWFORD:  Oh definitely...

ABRAMS:  ... is it possible that maybe they're simply saying, you know what, when we look at the issue and we look at the FISA court and we look at the options with regard to the FISA court and we look at what the Congress authorized and didn't authorize and we look at the case law, the bottom line is the administration doesn't have a very good argument. 

CRAWFORD:  And it's true I think especially in the Senate where they don't face reelection as often as the House, so I find oftentimes in both parties, that the senators are—tend to be senators first and Republicans or Democrats second, so we're going to see I think more Republicans.  I think we will see an investigation. 

My guess is though Dan, what Congress is going to wind up doing is striking some sort of deal with the White House that ratifies what the president did, but makes it look like Congress approved it and he did it with the permission of Congress, which is going to be a moot point.  This is what they've done in the past.  One reason they have so little power in this area. 

ABRAMS:  And this is what—that's effectively what Senator Roberts, the Republican from Kansas was saying. 

CRAWFORD:  Yes...

ABRAMS:  Hang on one sec...

CRAWFORD:  ... that isn't where I see this heading at the moment.

ABRAMS:  Let me read this.  I support the terrorist surveillance program wholeheartedly and I'm comfortable in my belief that it is necessary, effective and lawful. 

(CROSSTALK)

ABRAMS:  Hang on.  Nevertheless, some of my colleagues have expressed concern that the program need some form of legislative authorization (INAUDIBLE) some of my colleagues have expressed...

(CROSSTALK)

ABRAMS:  ... concerns that the program needs some form of legislative authorization and greater oversight by the Intelligence Committee.  Respecting these views for the past months I've been working diligently with the administration to fashion an accommodation, which would permit legislative measures and increased oversight while protecting this vital surveillance capability.

Translate, please. 

CRAWFORD:  This is the classic retroactive authority they would give to the president for something—an overreach of authority in order to keep the annals from history recording that this was the president's own decision arbitrarily, they come after the fact and Congress passes something, say hey yes, that's a good idea, we agree with that. 

ABRAMS:  Yes.

CRAWFORD:  Same thing they did with Abraham Lincoln when he suspended habeas corpus with absolutely no...

ABRAMS:  But you know...

CRAWFORD:  ... constitutional authority and Congress came back later and ratified that and said it was OK.

ABRAMS:  But Republican Olympia Snowe from Maine is saying something different.  I mean let's be clear.  Not all the Republicans are even agreeing about exactly do they want oversight, do they want judicial review. 

Olympia Snowe, I think we do have to have judicial review.  Whether it's the FISA approach or not, I think remains in question, but it can't go in perpetuity.  It can't be unfettered warrantless surveillance. 

That is different than what you're suggesting that they make...

CRAWFORD:  You bet.

ABRAMS:  ... compromise on and different from what Senator Roberts is saying. 

CRAWFORD:  Right.  Because that is going to be the real powerful response from Congress, if they step forward and say, you did not do this correctly, this was not legal, and maybe strike a deal for some new type of legislation that will allow this data mining, this more technologically advanced surveillance that the administration wants to do. 

But ultimately I think, Dan, Congress may back down because I don't see the political momentum out there with the American people against the president on this.  I think they're tending toward his side on this. 

ABRAMS:  Yes I know.  I know.  And look, I've made it clear on this program that I think that the issue here is being overstated.  We're not talking about whether...

(CROSSTALK)

ABRAMS:  ... the government can engage in surveillance, everyone agrees, surveil, surveil, that's not what we're talking about.  What we're talking about is whether you have to go to the FISA court or not.  All right.  Anyway, Craig Crawford, thanks a lot.  Appreciate it.

CRAWFORD:  Good to be here.

ABRAMS:  Coming up, what would you do if a peeping tom was targeting your daughter?  You might do what this family did.  They took matters in their own hands.  They set up a video camera to catch him in the act.

And they say that they're angry about the cartoons of the prophet Muhammad.  But then why the protests at American embassies?  I say it shows you what these protests are really about.  It's my “Closing Argument”. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a family takes matters into its own hands when a peeping tom tries to check out their daughter.  Well they check him out on videotape.  We've got it, up next.

(COMMERCIAL BREAK)

ABRAMS:  We're back.  After hearing from a neighbor there could be a peeping tom peering in their daughter's bedroom window, a family in the town of Independence, Kentucky took matters into their own hands, rigging up surveillance cameras and catching the man in the act. 

NBC's Donna Gregory has the story. 

(BEGIN VIDEOTAPE)

DONNA GREGORY, NBC NEWS CORRESPONDENT (voice-over):  This home video released by police confirms what the Hall family has suspected for months, a man peering into the bedroom of their 16-year-old daughter. 

LINZIE HALL, ALLEGED VICTIM:  I was freaking out.  I was crying and screaming. 

GREGORY:  Police say the suspect, 28-year-old John Morgan (ph), a married father of two, admits he's the man on the tape. 

MISCHELLE HALL, ALLEGED VICTIM'S MOTHER:  When I watched that video, it was like watching a scary movie on the outside of my home. 

JAMES HALL, ALLEGED VICTIM'S FATHER:  I wanted to take him out of this world is what I wanted to do, because he pretty much changed my daughter's life forever. 

GREGORY:  The Halls set up their own surveillance camera after a neighbor spotted a man prowling around Linzie's window in early December.  When the suspect spotted the camera he tried to remove it.  The family checked the tape and called 911.  A police dog tracked Morgan's scent to his home, only a block away. 

JOHN DOLAN, FLORENCE KENTUCKY POLICE:  The track was probably 1,000, 1,500 yards to the rear of the residence.  Basically just a street over. 

L. HALL:  That was pretty scary to me, knowing that he was that close to me. 

GREGORY:  Even with the arrest, the Halls say they don't feel safe and plan to sell their home. 

UNIDENTIFIED FEMALE:  It's a bad memory.  I just want to put it behind us. 

L. HALL:  I just want to move and get out of here so he can't find me. 

GREGORY:  Morgan is out on bond.  He can't return to Independence until he goes on trial. 

Donna Gregory, NBC News, Chicago.

(END VIDEOTAPE)

ABRAMS:  Joining me now is Officer John Dolan.  You saw him there, Florence, Kentucky Police Department, who—and he's joined by Max, the dog who helped track this guy down.  Officer, thanks a lot for taking the time to come on the program.  We appreciate it.

DOLAN:  No problem.  Thank you.

ABRAMS:  Tell me how did you become involved?  Tell me how you first became involved in this case. 

DOLAN:  It was about 6:45 in the morning.  We received a call at our police department from the Independence Police Department and they were looking for a tracking dog to come over and track for the suspect that just had been in the rear of the victim's home. 

ABRAMS:  And you knew that he'd been in the rear of the victim's home recently how? 

DOLAN:  When I responded to the scene, Independence had filled me in on the past history of the case, and then also from the videotape of that morning, we saw that he'd been in the area of the house as well. 

ABRAMS:  All right.  So you bring Max over to the house, and then what? 

DOLAN:  I put Max in the area of the last place the suspect had been seen on the videotape and gave him his command to track and from that point, he picked up the scent of the track, and we tracked through several backyards, in between some homes, to the street behind the residence, across the street, into the suspect's yard. 

ABRAMS:  So he was a pretty close neighbor? 

DOLAN:  Yes, it was—the street directly behind them, it had been across the street. 

ABRAMS:  And it sounds like Max didn't have a whole lot of trouble. 

DOLAN:  Max did a great job.  It was nice to see our training pay off, and the Independence officers did an excellent job as well, cordoning off the area to keep other scent out of the area. 

ABRAMS:  And again because he had been there relatively recently, did that make this a pretty easy sniffing job so to speak? 

DOLAN:  Yes, it makes it easier.  We had a good morning as well, it was frosty, and light winds, so the scent just laid in the area for Max, and Max was able to do what he does with his nose and track to the suspect. 

ABRAMS:  Is Max all right there?  He seems like...

DOLAN:  He's fine. 

(LAUGHTER)

DOLAN:  He's fine. 

ABRAMS:  Yes.

DOLAN:  He's being a good boy.  Max, sit. 

ABRAMS:  Yes.  How long have you and Max been working together? 

DOLAN:  I've had Max for about a year, he's my second K-9. 

ABRAMS:  Yes. 

DOLAN:  Yes.

(CROSSTALK)

DOLAN:  He and I have been together for a year, we went through some training, 10 weeks, and he's been on the road for almost a year. 

ABRAMS:  I assume this is his first peeping tom case? 

DOLAN:  That's correct.  It was his first peeping tom case and his first real big case.  It was nice to be able to bring some closure to the family in Independence. 

ABRAMS:  Usually are you and Max working on drug cases? 

DOLAN:  He's what we call a cross-trained dog, so we do narcotics searches and we also do some apprehension tracks, like we had earlier. 

ABRAMS:  And in this particular case, it was very helpful, was it not, that the family decided to take matters into their own hands? 

DOLAN:  Yes.  In this case, a lot of credit goes to the family.  And a lot of the credit goes to Independence for working the case.  You know, without the two of them cooperating in the case together, you know, the suspect may never have been located. 

ABRAMS:  Max, nice work.  And Officer Dolan, good work to you as well. 

Thanks a lot for taking time to come on the program.  We appreciate it. 

DOLAN:  No problem.  Thank you. 

ABRAMS:  Coming up, more violent protests in front of a U.S. embassy this weekend in Indonesia supposedly over the publication of those cartoons, but why is the U.S. responsible?  It's my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—those who still believe that the international protests in the Muslim world are just about those cartoons of the prophet Muhammad printed by a Danish newspaper, I present exhibit A.  More protests and destruction this weekend at a U.S. embassy in Indonesia, a U.S. embassy.  How did we get dragged into this? 

They were reprinted in many European newspapers while almost every paper and television network in this country refused to publish, even after it became a huge news story.  No administration official has endorsed the cartoons in any way.  Nevertheless, from Lebanon to Malaysia, Algeria to Afghanistan, protesters and rioters have been chanting death to America and burning American flags and attempting to target U.S. interests.  This just further demonstrates the uproar is not about the cartoons.

It is instigators stirring a pot of discontent by falsely claiming that the prophet Muhammad is under attack from the West.  They are trying to use this as a tool to incite a religious uprising.  Think about it.  How are the Jews responsible for the cartoon controversy?  And yet as is the case with most problems in the Arab world, Jews have become the scapegoat, the Arab European League posted vulgar cartoons of Jewish girl Anne Frank in Iranian paper holding a contest for the best cartoons about the Holocaust and many who claim to be protesting the cartoons yelling death to Israel.

This even though there is nothing to suggest Jews or Israel were behind any of this.  Bottom line this just proves that much of these so-called cartoon protests are not really about cartoons. 

Coming up, parents of Natalee Holloway file a lawsuit against the chief suspect in their daughter's disappearance and legal analysts say they think the suit might get thrown out.  We talked about that earlier.  Your e-mails coming up. 

(COMMERCIAL BREAK)

ABRAMS:  I've had my say, now it's time for “Your Rebuttal”.  On Friday, the parents of Natalee Holloway filed a lawsuit against the chief suspect in their daughter's disappearance, Joran van der Sloot and his father Paulus.  They were served papers when they arrived in New York for a TV interview.  We asked, will the lawsuit get thrown out of court.

Blair in San Francisco, “I don't think the point is only to win a settlement.  The important part and the reason their lawyers should be applauded  is to get these people to testify and get more information.  In addition, just give them some more trouble to deal with and more legal and travel expenses.”

Yes, but Blair I don't like the idea of filing lawsuits for that reason.  It makes me nervous because then we get into all sorts of people filing frivolous lawsuits.

Carrie asks a question I've been asked by other viewers.  “My husband and I watch your show all the time.  We were wondering if Stephanie Abrams on the Weather Channel is your sister.  My husband swears she must be, you too look so much alike.”

Do you really think we look alike or do you think our last names just kind of sound alike?  No relation.  No relation. 

Abramsreport@msnbc.com.  That's the e-mail address.  “HARDBALL” with Chris Matthews up next.  See you tomorrow.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

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