updated 3/29/2006 11:38:34 AM ET 2006-03-29T16:38:34

Guests: Samiha Khanna, Mike Nifong, Michelle Suskauer, Susan Filan, Loren Steffy, Harold Mester, Clint Van Zandt, Alan Dershowitz, Kris Kobach, Kim Gable

DAN ABRAMS, HOST:  Coming up, a student working as a stripper to pay her way through college says members of the Duke University Lacrosse team gang raped her at a team party. 

The program about justice starts now.

This is Duke University, where protests are going on over allegations that some Duke Lacrosse players gang raped a dancer at a party. 

Hi, everyone.  First up on the docket, the sexual assault scandal that is rocking my alma mater, Duke University.  Authorities have taken DNA samples from 46 of the 47 members of the Lacrosse team in an attempt to find the three players an exotic dancer said beat and raped her at a party where she was hired to perform on March 13. 

According to court documents reviewed by a local paper—quote—

“When the woman and another dancer began their routines, one of the men watching held up a broomstick and threatened to sexually assault the women.  They left, but were followed out by a man who persuaded them to return.  That‘s when three men pushed her into a bathroom and began the assault, which she said lasted for 30 minutes. 

I‘m joined now by phone by Samiha Khanna from the “News and Observer” down there who interviewed the alleged victim in this case.  Thanks very much for coming on the program.  Appreciate it.  All right, so what did she tell you?

SAMIHA KHANNA, REPORTER, “NEWS AND OBSERVER” (via phone):  Well first, she sort of wondered where—how I had found her, and I assured her that her identity was not revealed in the newspaper and it was not going to be revealed, as we don‘t publish the names of sexual assault victims.  The first thing she told me was she really—she reported it because she feels as though generally speaking, people don‘t really take this type of assault seriously. 

And she has a young daughter; she also was concerned for her family.  Knowing that—her father, knowing that this had happened to her she couldn‘t live with that.  She wanted to report it and sort of get the allegations out there of what had happened.

ABRAMS:  What did she say happened exactly? 

KHANNA:  Basically, we just sort of went over the same details that the police had offered.  She was a little hesitant to discuss everything in detail.  Naturally, she was still in shock and still very tearful, and also her children were present.  She was watching them, so it was a little bit difficult to talk about the details, but she did say that she had been called to this location for a job.  As the “News and Observer” has previously published, she believed that this event would be a small party, perhaps a bachelor party, with no more than maybe five men. 

When she arrived with one more person from the agency she realized that the crowd, in fact, was over 40 men in this house next to east campus.  She worried about the fact that there was no security, and a neighbor that I interviewed actually says that he saw the women outside.  The victim was hesitant.  She didn‘t want to go inside.  She said I had never done this before, I‘ve never done this before, and the other woman he describes sort of comforted her.  She went in and she says that immediately there were comments being made, derogatory comments to her as a woman and also based on the fact that of her race.  She is black and she says that her accusers are white.

ABRAMS:  Now, how does she know that the alleged perpetrators were members of the Lacrosse team? 

KHANNA:  I didn‘t actually get the chance to ask her that in detail how she was able to verify that.  But the police have actually been able to verify that this was a party at—held for—or for—or attended by most of the members of the team.  I‘m not sure exactly if all attended, but most of the people there were members of the team.  The three people who actually live in the house are three team captains we‘re being told by Duke officials.  So that‘s how they are able to corroborate that information.  I‘m not sure that she was aware at the time that they were members of the Lacrosse team. 

ABRAMS:  And all she claims that she knew was that she was going with a colleague I guess you‘d call them, to dance at a party? 

KHANNA:  That‘s what she‘s told me.  That‘s—she got the call about 8:30 that night; she was to show up at about 11:30.  The first time that she had ever met that co-worker she says was at that location. 

ABRAMS:  All right.  Samiha Khanna thank you very much for coming on the program.  We appreciate it.

KHANNA:  Thank you. 

ABRAMS:  Joining me now is the Durham district attorney, Mike Nifong, who is—office is handling this case.  Thanks very much for coming on the program.  We appreciate it.  Now I know that...

MIKE NIFONG, DURHAM DISTRICT ATTORNEY:  Yes, sir. 

ABRAMS:  ... that you have not been able to hear what we‘ve been talking about up to now?  But the one question that we were talking about is how can you be so certain at this point that the perpetrators were actually members of the Duke Lacrosse team? 

NIFONG:  Well, the information that we have received from the people who were at the house was that all of the people at the party were Duke Lacrosse players with the possible exception of two fraternity people who were there at some point that evening with another member of the Duke Lacrosse team.  Obviously, we are awaiting DNA results from tests that have been done so far.  We expect those next week, and depending on the results of that, it may be necessary to extend the scope of the search, but we at least have an idea of the direction which that would go.

ABRAMS:  I assume based on the fact that you requested DNA from 46 of the 47 members of the team that there is DNA evidence that was found that‘s relevant to the case. 

NIFONG:  We hope that there will be DNA evidence that will be relevant to the case.  We cannot know that for certain until all of the evidence has been tested.

ABRAMS:  Did all of the players who you requested DNA from, and my understanding is it was from 46 of the 47, all of the white players on the team because the victim—the alleged victim said that the perpetrators were white, did all of them agree to give their DNA?

NIFONG:  They all submitted pursuant to the (UNINTELLIGIBLE) identification order of the sampling that was requested, yes, sir. 

ABRAMS:  So it was requested or was it—I mean did you demand it? 

NIFONG:  There was a court order that is called a (UNINTELLIGIBLE) identification order, and it set out the reasoning behind the request, and specified what subject—the subjects would be requested to do. 

(CROSSTALK)

NIFONG:  Their failing to do so could result in a court taking action against them, but there was no failure to do so.

ABRAMS:  Are you convinced there was a rape here?

NIFONG:  I am convinced that there was a rape, yes, sir. 

ABRAMS:  And why are you so convinced of that? 

NIFONG:  The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation.  There is evidence of trauma in the victim‘s vaginal area that was noted when she was examined by a nurse at the hospital.  And her general demeanor was suggested—suggestive of the fact that she had been through a traumatic situation. 

ABRAMS:  When you say an alternate explanation that‘s being offered by some of the people who were there, what is that?

NIFONG:  Well, the—I don‘t want to go into a lot of the details of the evidence right now, but obviously, the story that these people were hired to dance and were asked to leave is the alternate story. 

ABRAMS:  So that there was no sexual activity at all is the alternate story? 

NIFONG:  That would be the alternate story. 

ABRAMS:  Final question.  Do you intend to pursue charges against players, people who were there at the house, but did nothing to stop it, if a rape occurred?

NIFONG:  Well, I have not made that decision yet.  It will really depend on evidence.  I don‘t suspect that everybody who was in the house necessarily had the same view of what was going on, and so I can‘t really say that right now.  As a general rule, mere presence at the scene of a crime does not constitute evidence of participation in that crime. 

There is, however, an exception under aiding and abetting law for people who because of a particular relationship that exists in this case being teammates of the people who were perpetrating the crime, their presence at the scene could be seen as encouraging or condoning the activity, and under those circumstances, it is possible that some other people could be indicted.

ABRAMS:  Have—final question, have you been satisfied with Duke University‘s response?

NIFONG:  I really—I‘m not sure to what you are referring to when you say Duke University‘s response.  They obviously are dealing with administrative issues that do not directly involve the criminal charges here.  Certainly Duke has not done anything to interfere with the investigation.  And I really don‘t have an opinion about such things as canceling the Lacrosse season, as some people have suggested.

ABRAMS:  Mike Nifong thanks a lot for taking the time.  We appreciate it. 

NIFONG:  Yes, sir.  Thank you. 

ABRAMS:  Joining me now, former prosecutor and MSNBC legal analyst Susan Filan, and in house, criminal defense attorney Michelle Suskauer.  Michelle, good to see you in person here.

MICHELLE SUSKAUER, CRIMINAL DEFENSE ATTORNEY:  Thank you. 

ABRAMS:  All right.  Michelle, these are very serious allegations here and this student is coming forward, and it sounds like the D.A. is pretty convinced that a rape occurred.  What do you make of the strategy here to ask all of the players, at least all of the white players on the team, for their DNA?

SUSKAUER:  Well they are asking all of the white players obviously, and I don‘t think they were asking.  I think they were sort of telling, given the fact that they had—issued something that they had to cooperate with or else maybe they would have been held in contempt, but they‘re asking all the white players.  The one lone black player she didn‘t identify as—she said that there were three white players that had raped her.  Certainly I think DNA is very important because she may not be—the victim may not be able to identify by face when she looked at the photographs anyone out of a photo lineup, so I think that really is significant.

ABRAMS:  Susan, if you were the prosecutor here based on the law that D.A. Nifong was just laying out, would you be considering pursuing charges against other people who were present at the house, but who didn‘t engage in the alleged rape? 

SUSAN FILAN, MSNBC LEGAL ANALYST:   Absolutely.  Under the theory that he explained, this aiding and abetting theory.  He‘s not saying just by being there and not doing anything to stop it you‘re in trouble.  But if you‘re in that room and you don‘t take any action to stop it and you‘re in the bathroom where the assault is taking place, that can clearly be seen as encouragement, as condoning and as aiding and abetting. 

And if you‘re in that bathroom where those guys are allegedly gang raping that victim, you‘re in as much trouble under a different theory as the guys who did it themselves.  The other thing is there seems to be a lot of physical evidence that the prosecutor can use here.  She lost four false fingernails, four red fingernails and those were found at the scene. 

She also said that she put up a fight and scraped the heck out of one of her assailants, so it‘ll be interesting to see if somebody has got some marks on their skin.  She also left behind a cell phone and a purse in that bathroom.  That is inconsistent with—if there‘s going to be a claim that it was consensual, that‘s inconsistent with consensual.  That is much more consistent with a forcible rape. 

ABRAMS:  Do you agree, Michelle? 

SUSKAUER:  Well yes, I think obviously if she has fingernails that are there and leaving property behind, but I think what is significant is they may be coming up with not with consent, but that she actually was paid not only to dance, but to provide sex as well.  So I think...

ABRAMS:  But it sounds like the D.A. wasn‘t saying—the D.A. was saying that what he‘s hearing is that some of them were claiming that...

(CROSSTALK)

ABRAMS:  ... she danced and she left. 

SUSKAUER:  It didn‘t happen at all.  Yes, I know.  That‘s not the defense that they are saying, but I think that another reason why they may not prosecute the other folks, the other players in the room is that because they may actually need them, because it‘s a much more serious crime obviously the forcible rape...

ABRAMS:  Right.

SUSKAUER:  ... or the detention...

ABRAMS:  Susan, real quick, 15 of the 46 players, this surprised me, who gave DNA had prior charges, most of them very minor charges, public intoxication and things like that...

FILAN:  And public urination. 

ABRAMS:  Yes, exactly.  Relevant to the case?

FILAN:  You know I mean I think at that level college kids will be college kids, boys will be boys.  I don‘t think that‘s where this becomes serious, but once it elevates to this level, and also, Dan, there‘s a witness that corroborates her story that she came outside and then she went back inside.  That‘s how she tells the story.

And don‘t forget there‘s also racial slurs.  I don‘t even want to repeat on the air what was allegedly said to this poor woman.  But that adds a whole other level to forcible rape, strangulation...

ABRAMS:  Yes.

FILAN:  ... sexual assault and now racial slurs? 

ABRAMS:  Yes.

FILAN:  This just gets uglier and worse...

ABRAMS:  This is a dark day for my university, which I love very much, and, you know, sorry to have to cover a story like this, but, you know, can‘t let my personal affiliations prevent us from covering what is an important story down at Duke University.  Michelle Suskauer, thanks a lot.  Appreciate it.

SUSKAUER:  Thank you.

ABRAMS:  Good to see you here.

SUSKAUER:  Thank you.

ABRAMS:  Susan Filan, I guess you‘re going to stick around. 

Coming up, the prosecution wraps up its case against former Enron execs Ken Lay and Jeff Skilling.  This as the judge agrees to drop some of the charges. 

And police and FBI are searching for two young boys in Milwaukee.  They‘ve been missing for more than a week.  Police are now calling the search a criminal investigation. 

Plus, some observers say things not looking good for the administration at the Supreme Court today, as it takes up the case of Osama bin Laden‘s former driver.  The question, is he entitled to a trial? 

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:  Good news at the Enron trial for former execs Ken Lay and

Jeff Skilling.  The judge agreed to drop some of the charges against them,

dropping three of the 31 Skilling faced and one of the seven counts against

Ken Lay.  The prosecution had asked the judge to drop the charges, which

included allegations of securities fraud and lying to auditors for—quote

“economy and other reasons.”  The prosecution rested its case; the defense will begin on Monday.

Joining me now is “Houston Chronicle” business columnist Loren Steffy who also blogs about the trial in “The Chronicle‘s” Enron trial watch blog.  Thanks a lot for coming on the program.  Appreciate it.  All right, so did the prosecution deliver as expected? 

LOREN STEFFY, “HOUSTON CHRONICLE” BUSINESS COLUMNIST:  I think they did.  They put together a pretty strong case, and I think the defense has its work cut out for it when it gets its chance next week.

ABRAMS:  What was the most important evidence do you think to the jury? 

STEFFY:  I think the most important evidence was actually a compilation of all the testimony.  I don‘t know that there any one piece of testimony that was terribly damaging by itself, but taken as a whole, it paints a very dismal picture of how this company was run and sort of the culture that existed there and how business was done at Enron.

ABRAMS:  Four charges dropped today.  The prosecutors actually asked for that.  Is it significant that they weren‘t able to deliver on all the charges? 

STEFFY:  It‘s really not significant.  I mean these were some incidental charges that quite frankly the prosecution just didn‘t want to take the time to go into when it presented its case.  The judge in this case has tried very hard to keep this thing on track and to keep it on a tight schedule.  And so just in the interest of moving the case along, the prosecutors decided to drop those charges. 

It seems like—it‘s hard to read the jury, of course, but it seems like the jury sort of gets what the prosecution was trying to say, that they understand the prosecution side of the case and the jury seems very ready now to hear from the defense.  So I think everybody involved kind of realized it was just time to move on. 

ABRAMS:  And the defense is going to be that Enron was a fundamentally healthy company and that Skilling and Lay did nothing wrong. 

STEFFY:  That‘s basically it, yes, which like I said, the defense has quite a challenge ahead of itself.

ABRAMS:  Do we expect—final question.  Do we expect Jeff Skilling and Ken Lay to take the stand in their own defense? 

STEFFY:  Yes.  Skilling‘s lawyer said today that Skilling will probably be on in the second week of April and Lay will be on sometime after that, so... 

ABRAMS:  All right.  Loren Steffy, thanks very much.  Appreciate it.

STEFFY:  Thank you. 

ABRAMS:  Now to a mystery in Milwaukee, two boys, 12-year-old Quadrevion Henning and 11-year-old Purvis Virginia Parker missing for almost 10 days, and police are now calling the search a criminal investigation.  They were last seen Sunday, March 19 in the afternoon when they asked Quadrevion‘s grandfather if they could play basketball at a nearby park.  No one who‘s seen them since has come forward. 

Investigators have checked nearby hospitals, bus stops, train stations, truck stops, playgrounds, parks, forest, creeks, combed the area by foot, car, helicopter, horseback and bicycle.  They‘ve pulled over cars, visited, revisited every house in the neighborhood.  They‘ve even checked abandoned cars and vacant houses and so far nothing. 

Joining me now on the phone Harold Mester is the news director of “News/Talk” 1130 WISN Radio in Milwaukee and MSNBC analyst and former FBI investigator Clint Van Zandt.  Gentlemen thanks very much for coming on the program.  Appreciate it.

Mr. Mester, what really troubles me is hearing the police say that they‘re not getting help from many of the locals. 

HAROLD MESTER, WISN RADIO (via phone):  Yes, that‘s a big problem.  In fact, it‘s a no-snitching kind of thing going on in the inner city.  A lot of youngsters are taught at a young age to not help the police officers with investigations.  And they have been wearing these no snitching shirts for quite a while now and they‘re trained to just not help out with these things.  And police think that maybe one of their classmates knows where these kids are.

ABRAMS:  Here is what the police said about this on Sunday. 

(BEGIN VIDEO CLIP)

ANNE SCHWARTZ, MILWAUKEE POLICE DEPT.:  I think that people might be afraid.  People might be afraid to give information.  You know, people are very much about not wanting to get in other people‘s business.  People are very much—we have this huge no-snitching movement that‘s going on you know with our children, and you know that‘s not what we need right now. 

(END VIDEO CLIP)

ABRAMS:  No, it certainly isn‘t.  Clint Van Zandt, how do you overcome that?

CLINT VAN ZANDT, FORMER FBI PROFILER:  Well, Dan, this is something the parents, the school, the local churches, the community has all got to step up.  In a time like this they have to pull together.  It‘s going to start in the home and go out through the community.  But to allow kids to wear t-shirts that say no snitching, this just continues, this terrible idea that the community does not have a responsibility to support law enforcement.  That‘s just nuts. 

ABRAMS:  Mr. Mester, is there any—are there any leads right now as to even the broadest questions of were they snatched off the street or taken by someone who knows them?  Are there any suspicions at this point? 

MESTER:  Well, I mean, there has to be some kind of criminal wrongdoing here, that‘s why over the weekend they turned it into a criminal investigation.  Kids that are 11 and 12, they don‘t leave for nine days and not come home.  So at this point there aren‘t any solid leads and again, it goes back to that issue of no one wants to say anything, and police are pleading with the public to just come forward with something here.  A national hotline has been set up and that number is 877-628-3804, but there are no solid leads in this case and we have no reason to believe that these kids would have run away on their own. 

ABRAMS:  Yes, we‘re putting up the number as you read it there, 877-628-3804.  You know, Clint, you think about that other case where the kids were ultimately found in the trunk of a car...

VAN ZANDT:  Yes, in Jersey...

ABRAMS:  Yes, they had apparently locked themselves...

VAN ZANDT:  Sure.

ABRAMS:  ... into the trunk.  Something like that I guess is always possible.  Would have they called this a criminal investigation at this point if that were still a possibility?

VAN ZANDT:  Well I think part of the challenge, Dan, of course, is because of their age, they have been gone a couple of days.  We‘re past the point of they could have just got lost in the woods or they ran away.  You know at their age, where do you run away for nine days?  Where do you hide?  Where do you get support?  Where do you stay warm at night and get food? 

So I think there is a presumption, unfortunately, of foul play.  The challenge is where we see you know one child may become a victim like this, two takes a little bit more planning, a little bit more work on the part of an offender if, in fact there, is a kidnapper out there.  So the two choices we‘re left with right now is some terrible accident took place or else, unfortunately, some terrible monster is out there that may have gotten these children. 

ABRAMS:  Here are the descriptions of the kids.  Quadrevion Henning, 12, five-four, 110, got short black hair.  He was last seen wearing a blue hooded sweatshirt and black jeans.  Purvis Virginia Parker, age 11, five-foot, 120 pounds.  She has black braided hair, was last seen wearing a white t-shirt and—she was last seen wearing a white t-shirt and gray jogging suit.  I‘m sorry - right.  I‘m sorry.  I‘m just talking to my producer about the picture here.  Bottom line, Clint, at this point what can people do? 

VAN ZANDT:  Yes, well the police, the FBI, they start at the home.  They look at the relatives.  They look at nearby community homes.  They look at any older teenagers that they may have had contact with that something might have gone wrong.  They look at known sexual offenders.  They were out on force Sunday.  A week later, trying to find out who might have seen something.  But this—you know, number one, we‘ve got to find these two missing children.  Number two, this is a good reason for the community to come together...

ABRAMS:  Yes.

VAN ZANDT:  ... take those no-snitching t-shirts and burn them.

ABRAMS:  Oh, yes, these—come on.  People, you got to help finding these two boys.  Come on.  All right.  Harold Mester and Clint Van Zandt, thanks a lot.

VAN ZANDT:  Thanks, Dan.

ABRAMS:  Again, if you‘ve got any information on either of them, there it is, 877-628-3804. 

Coming up, Osama bin Laden‘s driver takes his case to the U.S. Supreme Court.  His lawyer is arguing the administration overstepped its authority, trying to hold a special trial for him at Guantanamo Bay, called the military commission.  It looks like many justices might agree that you can‘t do it. 

And remember that 24-year-old who turned up last week, 10 years after she went missing?  Says a security guard at her junior high school held her a virtual prisoner?  Now a hairdresser has been arrested for helping the guy that she was apparently with. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing offenders before they strike.  Our search today is in New York. 

Authorities are looking for Ralph Paladino.  He‘s 62, five-nine, 185, was convicted of raping a 15-year-old boy, has not registered with the state.  If you‘ve got any information on his whereabouts, please contact New York‘s 100 Most Wanted tip line, 1-800-262-4321.  Be right back. 

(COMMERCIAL BREAK)

ABRAMS:  Bin Laden‘s driver takes his case to the U.S. Supreme Court. 

The details after the headlines.

(NEWS BREAK)

ABRAMS:  Today, the Supreme Court heard a major challenge to the president‘s power in the war on terror, it comes from a confessed members of al Qaeda, Osama bin Laden‘s personal driver and bodyguard.  The high court heard Salim Ahmed Hamdan‘s appeal of the president‘s order authorizing military tribunals for captured al Qaeda terrorists at Guantanamo Bay. 

The big issues before the court, did the president overstep his powers when he ordered those special courts for captured terrorists?  The audiotape of the argument has just been released.  And Neal Katyal is Hamdan‘s attorney.  

(BEGIN VIDEO CLIP)

VOICE OF NEAL KATYAL, HAMDAN ATTORNEY:  We ask this court the court to preserve the status quo, to require that the president respect time honored limitations on military commissions and to conduct trials according to the minimal procedural requirements of the UCMJ and the laws of war themselves. 

(END VIDEO CLIP)

ABRAMS:  The absence of some of those requirements seem to trouble Justice Ruth Bader Ginsburg.

(BEGIN VIDEO CLIP)

VOICE OF RUTH BADER GINSBURG, SUPREME COURT JUSTICE:  You mentioned that the defendant has no right to appear before the tribunal.  What are the other rights recognized by all civilized people that these tribunals do not guarantee?

(END VIDEO CLIP)

ABRAMS:  A number of people watching including our own Pete Williams say other justices seem to have doubts as well.  Another potential problem for the government‘s case, Chief Justice John Roberts has recused himself.  He ruled against Hamdan while serving on a U.S. appeals court.  Then there‘s Justice Scalia, he‘s refused to recuse himself, even after he told a university group in Switzerland that combatants don‘t have a right to a jury trial. 

The famous Alan Dershowitz is the Harvard Law professor.  His latest book is “Preemption: A Knife That Cuts Both Ways”.  Kris Kobach is a constitutional law professor at the University of Missouri of Kansas City and a former counsel to Attorney General John Ashcroft. 

Gentlemen thanks for coming on the program.  All right, Professor Dershowitz, lay out for us in its simplest terms, if you will, what is the problem with the president authorizing military tribunals? 

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR:  Well, military tribunals are not really courts.  They‘re kind of ad hoc commissions.  They have been used before to be sure.  President Roosevelt convened one when Nazi spies were found on the shores of the United States, but let‘s understand, this is a black hole in the law.  This guy, whatever else he is, he‘s not a prisoner of war.  He‘s not an ordinary criminal.

He‘s not a spy or another kind of traditional form of unlawful combatant.  The law today just doesn‘t have a category for him and so the fault lies squarely with the legislature.  The legislature ought to have debated and considered this and set up rules.  For example, it has now been argued that maybe we need an explicit form of preventive detention, a statute that says look, if you can prove the guy is a continuing danger, that he‘s likely to engage in acts of terrorism, you can put him on freeze for a particular period of time and hold him without even proof of past crimes. 

This is something the legislature ought to determine.  It should not be done by the president of the United States alone and it hasn‘t yet been done by the legislature despite some broad general statements...

(CROSSTALK)

DERSHOWITZ:  ... that may exist in the legislative history.

ABRAMS:  Let me ask you about that before I go to Professor Kobach.  I mean one of the arguments is that in 2005 the legislature effectively stripped the power of the federal courts to hear these kinds of cases.

DERSHOWITZ:  Well, there are real questions about whether the legislature has the authority under the Constitution to strip the Supreme Court of authority to hear cases.  The writ of habeas corpus, the other forms of review in the Supreme Court are constitutional in nature and not subject to limitation by the courts in—except in ordinary cases.  So that‘s another issue that‘s currently before the court and the court is going to have to decide that question. 

ABRAMS:  Professor Kobach, why do you think that the justices, at least according to people who watch the argument, seem so dubious of the government‘s position?

KRIS KOBACH, CONSTITUTIONAL LAW PROFESSOR:  Well I think Professor Dershowitz is right.  There are many unanswered questions here with this kind of illegal combatant, this kind of enemy combatant.  Even the terms in this case have evolved since past decades.  But it‘s important to note that the president has long-standing authority under Article Two as commander-in-chief of the military to detain and try enemy combatants and that goes way back to the American Revolution, the Mexican War, the Civil War, the Second World War as Professor Dershowitz mentioned. 

So you have a long-standing precedent of authority here, plus Congress in three separate legislative acts authorized enemy combatants to be tried in this way.  The executive branch has a very strong argument there and I would just add on the point about what Congress did in December of 2005 when they passed this Detainee Treatment Act, Congress said explicitly not that the Supreme Court can never hear the case.  They said that the Supreme Court can only hear the case after a final verdict is rendered in each instance, so they can‘t hear this preliminary case before it even goes to the military commission.  They have to wait until the military commission comes up with a verdict, so that‘s hardly stripping the federal courts out of the process. 

ABRAMS:  But it sounds like some of the justices were concerned about the power that the executive has here, effectively that the president gets to appoint in theory, because it‘s through the Department of Defense, et cetera, the military commissions and so then you have the president effectively serving as the judge and the jury, without any outside branch of government being involved at all. 

KOBACH:  Well maybe we need to be a little more specific about what happens here.  That‘s right that military officers serve as the members of the military commission, but the decision of the commission is appealable to the D.C. Circuit Court, and that is then appealable to the Supreme Court, and it should be noted that while they don‘t—the defendants before these commissions don‘t have all of the rights in a normal U.S.  civilian court, they do have the most basic rights.

They have the right to counsel.  They have the right to confront witnesses, presumption of innocence, guilty beyond a reasonable doubt, so all of these basic rights are intact. 

ABRAMS:  Professor Dershowitz, if the court says no to these military commissions, then what happens to him? 

DERSHOWITZ:  Well he can still be detained.  The problem is you know nobody is going to release this guy if he‘s a continuing danger.  The United States did release a couple of people, and they went back and committed terrorist acts.  And so you have kind of the status quo is not a particularly good one.  He doesn‘t get a trial. He doesn‘t get access to the courts.  I don‘t think release is a real option here.

That‘s why I think the legislature has to go back to the drawing board and really decide what role they want to play, and we‘ve seen a lack of legislative courage here.  I think every branch essentially wants to leave it to another branch.  We‘ll see whether the Supreme Court cops out as well.  But by the way, you‘re absolutely right that this doesn‘t strip the court, but it does strip them of the power to say, even before a trial begins that this is not the kind of trial that‘s consistent with American justice. 

ABRAMS:  Let me ask you this, Professor Dershowitz, what do you make of Justice Scalia‘s comments?  He said if he was captured on my army—by my army on a battlefield, that‘s where he belongs.  I had a son on the battlefield and they were shooting at my son.  And I‘m not about to give this man who was captured in a war a full jury trial.  I mean it‘s crazy.

Do you think he should have recused himself in the case? 

DERSHOWITZ:  Well you know, my friend Justice Scalia always talks about how he doesn‘t want to introduce Scaliaism into the law, that it has to be a matter of law, not a matter of his personal views.  But when he talks, he talks so personally.  I mean if he has a point of view, you ought to tell that to the legislature and let the legislature listen to the Scalia point of view, and see if it adopts it. 

But a judge shouldn‘t be making those kinds of statements out of court.  But look, if you tried to recuse Scalia every time he opened up his mouth, he would never sit on a case because he has opinions about everything.  And frankly, I‘d rather have a judge express his opinions than hide them and keep them and then sneak them up on you.  So you know my friend Justice Scalia is who he is and he‘s volatile, and every court needs one Justice Scalia.  Thank God we don‘t have nine.

(LAUGHTER)

ABRAMS:  Professor Alan Dershowitz, Kris Kobach, thanks a lot. 

Appreciate it.

Coming up, last week, we told you about Tanya Kach...

(CROSSTALK)

ABRAMS:  She went missing for 10 years before showing up miles from her father‘s home.  She said she was sexually abused and locked up for years.  Now, a hairdresser has been charged for allegedly helping to hide her. 

And who knew?  John Kerry hates tomatoes.  So much so that all tomato-based products are no-no‘s in his hotel room.  Someone should remind him his wife—you know Heinz Ketchup, the empire.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, police arrest a hairdresser in the case of a woman who turned up last week after going missing 10 years ago.  They say the woman helped disguise the girl.  Details are next. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JERRY KACH, DAUGHTER WAS MISSING FOR 10 YEARS:  She‘s back where she belongs, that‘s all that matters.

TANYA KACH, MISSING FOR 10 YEARS:  And I‘m free.  I‘m free.  I can walk outside the door any time I want to go walk down the street.  I didn‘t think anybody cared.  Because he would tell me your case is dead, it‘s cold. 

J. KACH:  I knew right away as soon as I seen the eyes to me she hasn‘t changed.  We‘ll just pick up right where we left of.

T. KACH:  Don‘t leave your mom and dad.  If you don‘t think they love you, and somebody tells you they don‘t love you, yes, they do.  I didn‘t know that.  I didn‘t think they did.

(END VIDEO CLIP)

ABRAMS:  Tanya Kach says she ran away from home 10 years ago at the age of 14 and says she was held prisoner and locked up in a bedroom by a man twice her age, who used to be a security guard at her middle school.  He‘s under arrest.  Now police have arrested another suspect in the case, Judith Sokol, a hairdresser who is accused of helping Tanya‘s alleged captor, Thomas Hose, hide the 14-year-old. 

Cut and dyed her hair to change her appearance and allowed the man to use her house to have sex with Kach.  Sokol was arraigned on three counts of involuntary deviate sexual intercourse, statutory sexual assault, indent assault, endangering the welfare of children, and corruption of minors. 

Joining me now on the phone is freelancer reporter Kim Gable and back with us former prosecutor Susan Filan.  Thanks to both of you.  All right, Kim Gable, they are accusing this woman of doing exactly what? 

KIM GABLE, FREELANCE REPORTER (via phone):  You know, Dan, I‘m sitting here looking at the affidavit that we got yesterday at the magistrate‘s office and interestingly enough, she is charged with the same exact counts as the suspect himself and her attorney was quick to point out yesterday that she‘s not accused of actually committing those acts, but allowing those acts to happen.

And, you know, this is something that you know allegedly began 10 years ago when the suspect and the victim first met and made arrangements to run away.  Hose apparently went to his friend, this hairdresser, Judith Sokol, and said, hey, you know, help me change this girl‘s appearance.  We want to be together.  We want to have a relationship, and, you know, the prosecution is allegedly that‘s exactly what she did.  She is a 57-year-old hairdresser and she allegedly dyed Tanya‘s hair blonde, gave her some makeup, and changed her appearance enough that she was able to live just blocks away from her childhood home and nobody knew who she was.

ABRAMS:  (UNINTELLIGIBLE) This is the attorney for Thomas Hose on this program last Thursday.

(BEGIN VIDEO CLIP)

JAMES ECKER, ATTY FOR LEAD SUSPECT IN ALLEGED KIDNAPPING CASE:  You saw how she looked and she was never a prisoner in any way, shape, or form.  She could have four or five years ago done whatever she wanted to do.  Suddenly this will wonderful story of hers comes out, which I assume will be made into a book some day.

(END VIDEO CLIP)

ABRAMS:  I don‘t know about that.  I mean she was a kid when it happened, so—but Susan Filan, in terms of charging this hairdresser for helping to dye the hair, et cetera, what does she have had to—what does she have to have known for it to be criminal? 

FILAN:  Right.  It sounds like—we talked about this a little bit earlier in the program—it sounds like—again, it‘s an aiding and abetting or it‘s even a co-conspirator.  What they‘re allegedly saying against her is that look, you knew that he was going to have sex with a 14-year-old.  You knew that he was going to hold her against his will.

In fact, you even provided your house for this illegal sex to take place.  And you assisted by changing her appearance, so you are as guilty as a participant as the principal himself.  No, you‘re not charged with having sex with her yourself.  But you don‘t need to have had sex with her yourself.  By assisting him and knowing what he was going to do, you‘re as guilty as a co-conspirator or an aider and abettor as the principal himself. 

ABRAMS:  But he would have to—she would have to have known that they were going to use her home for sex, right?

FILAN:  Well, it sounds like from what I‘ve been able to read that she let them.  She did know.  She had a history of being the party house where she would buy the beer for the underaged...

ABRAMS:  Well let me ask Kim Gable about—do you know anything about that, about sort of what role...

(CROSSTALK)

ABRAMS:  ... exactly she‘s alleged to have played here?

GABLE:  Right, you know, and I can elaborate on that a little bit.  And this comes straight from the affidavit of probable cause.  Sokol reported that she knew Hose was engaged in an inappropriate relationship, and after being contacted by Children and Youth Services regarding the whereabouts of Tanya, she had severed her relationship with both Tanya and Hose, so, you know, right here in the affidavit, it states that she reportedly knew that this was an inappropriate relationship.

ABRAMS:  What do you mean when she was contacted—so she knew what she was going on and then she‘s confronted by someone at Youth Services and she stops talking to both of them? 

GABLE:  Right.  She—it‘s saying that she had severed her ties after being contacted with agents by the Children, Youth, and Services, who were looking for Tanya, who was working with her family to, you know, find out where she was.

FILAN:  And, Dan, I think she even makes a statement that she was surprised to learn 10 years later that this little girl that she had assisted to change her appearance and to hide away from her family was actually still with Hose and in that town.  And so I think that‘s an admission of tacit knowledge that something inappropriate took place 10 years ago...

(CROSSTALK)

FILAN:  ... and then by her allegedly severing her ties, basically...

ABRAMS:  Yes.

FILAN:  ... she did nothing to help this little girl.  Nothing. 

(CROSSTALK)

FILAN:  She set it in motion and didn‘t do anything to help out.

ABRAMS:  Kim Gable and Susan Filan, thanks a lot.  Appreciate it. 

GABLE:  Thank you. 

FILAN:  Thank you.

ABRAMS:  Coming up, last week it was Vice President Cheney, now it‘s John Kerry.  His list, where you let hotels know what he wants when he arrives.  He hates celery and tomatoes, and don‘t think about filling his glass with Evian water. 

And lots of e-mails responding to the story an 18-year-old girl charged with statutory rape for having sex with a 15-year-old boy from her high school.  Some of you saying you would be in jail if that law was enforced. 

Our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing offenders before they strike.  We are in New York.  Police are looking for Antonio Ciria, 49, five-six, 200 pounds, was convicted of raping a girl at knifepoint.  Has not registered with the state.  If you‘ve got any information on his whereabouts, please contact New York‘s 100 Most Wanted tip line, 1-800-262-4321.  Be right back. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—last week I poked some fun at a list of Vice President Cheney‘s requirements for when he stays at a hotel.  Now the Smoking Gun Web site has uncovered former presidential candidate John Kerry‘s—quote—“preferences” for when he‘s on the road.  Their advance teams letters to hotels may reflect the differences in the men.  Kerry‘s were suggestions.  You never know which way he‘s going to go.  Cheney‘s requirements.  Kerry staffers said thank you for doing such a great job, a bit more touchy-feely than the V.P.‘s letter. 

But it turns out the Senator Kerry‘s list of preferred road grub is much longer than Vice President Cheney‘s.  While Cheney demanded diet Sprite, a 60-degree room, all TVs of course tuned to FOX News, and a private bathroom, Kerry, on the other hand, needs an exercise bike in his hotel room and not one of those—quote—“old stationary bikes”.  The ranking member of the Senate‘s Small Business Committee needs a recumbent bike.  Make sure to stock the cup holder with plenty of bottled water and vanilla and strawberry flavored boost shakes.

Water and boost shakes must be—quote—“every place that J.K. is” and make sure it‘s Poland Spring, no Evian for J.K. as Kerry is referred to in the memo.  And J.K. must be able to use the phone and watch movies as soon as he gets to the room.  These things—quote—“make J.K. very happy.”  Watch movies?  Maybe that‘s why he lost the election.  What was he doing watching movies on demand at the hotels? 

The best part is who knew the husband of Teresa Heinz Kerry of the Heinz Ketchup empire refuses to eat any—quote—“tomato-based products or sandwiches.  While the hotel staff is picking tomatoes out of the Cobb salad and keeping away the ketchup, it‘s apparently worse if Teresa joins him.  She won‘t drink bottled water unless it‘s been reverse osmosis filtered.  I don‘t know what that means.

And she won‘t stay in a room that has—quote—“blowing heat” and doesn‘t have good air circulation and don‘t forget—and forget a good ole-fashion peanut butter and jelly sandwich.  No, no, the aspiring first lady only eats flax bread with peanut power butter, apparently so difficult to find that her staff had to carry it around with them.  So after reading both lists, Vice President Cheney suddenly sounds like a pretty good guy to shack up with. 

Coming up, an 18-year-old student charged with having sex with her 15-year-old boyfriend.  A lot of you upset with the prosecutors.  Your e-mails are next.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Yesterday, the 18-year-old girl facing up to eight years for having sex with a 15-year-old boy.  He said it was consensual.  Prosecutors said they‘re just following the law.  I said it‘s outrageous.  Many of you agree.

Pamela Brown, “I met my ex-husband when he was—when I was 16 and he was 32.  We had a wonderful son who‘s now 25 years old.  Now he, my ex, would be thrown in jail for even asking me out on a date.”  OK, Pamela, that‘s a little old for a 16-year-old, no?

Centerville, Ohio, Lisa Eller, “I was 16 a little while ago and had sex with an 18-year old.  I certainly knew exactly what I was doing and was capable enough to protect myself.”

Milo from Michigan, “How can Florida prosecutors convince us that a 12-year-old Lionel Tate can be responsible for his actions and charge him as an adult for murder, then try to tell us that a 15-year-old boy is not capable when he has sex with his teacher?”  This wasn‘t a teacher, but anyway.

Tammy Loew in Lafayette, Indiana asks, “Where should the prosecutor draw the line?  If it was an 18-year-old college football player and his 15-year-old girlfriend, you‘d be all over him.  If you don‘t like the law, change it.”

No, Tammy, when prosecutors charged a young man in a similar type case we did an hour on it.  I just don‘t think prosecutors should be putting away young people for having sex with classmates.

Your e-mails abramsreport@msnbc.com.  We go through them at the end of the show. 

“HARDBALL” with Chris Matthews is up next.  I will 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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