updated 4/14/2004 12:59:29 PM ET 2004-04-14T16:59:29

Guests:  John Warden, Edwin Meese, Robert Heibel, Ronald Kessler, Paul Pfingst, Karen Russell

ANNOUNCER:  Now THE ABRAMS REPORT.  Here is Dan Abrams.

DAN ABRAMS, HOST:  Hi everyone.  The State Department now confirming that bodies of four people have been found in Iraq.  NBC News has learned that it is those Americans missing since last Friday.  At least four of them found in a shallow grave, their bodies—quote—“mutilated beyond recognition”.  We‘ll get a live report from Baghdad and figure out what‘s going to be done to find the killers. 

Plus, U.S. Attorney General John Ashcroft on the hot seat at the historic 9/11 commission hearings.  He has just finished explaining what he knew leading up to the attacks.  There were some tough questions and some finger pointing.  We‘ll show you the highlights and talk to another former attorney general. 

And Ashcroft wasn‘t the only one answering the tough questions.  President Clinton‘s Attorney General Janet Reno and FBI Director Louis Freeh also had some explaining to do. 

And later an NBC News exclusive, a source close to Michael Jackson‘s 1993 accuser says the young man is not ready to testify at the grand jury deciding whether to indict Jackson on molestation charges.  How could that impact prosecutors‘ effort to show a pattern of abuse by Jackson? 

But first, we begin with breaking news out of Iraq.  NBC News has learned that the bodies of at least four men believed to be among the seven American civilian contractors missing since last Friday have been found dead.  The bodies reportedly found in a shallow grave near the site of Friday‘s attack on a fuel convoy.  The seven civilians, employees of Kellogg, Brown & Root, a subsidiary of Halliburton.  Their family is being contacted now. 

NBC‘s Carl Rochelle is live in Baghdad with the details on the discovery—Carl.

CARL ROCHELLE, NBC NEWS CORRESPONDENT:  Dan, one of the problems of course is those bodies are in such bad shape it is extremely difficult to get an identity, but we do believe according to two officials who have told NBC News that those bodies are believed to be four of the civilian contractors who went missing after that convoy was attacked last Friday in the Abu Ghraib region, which is down on the western outskirts of Baghdad.  Now there were half a dozen individuals on board that—there are still two U.S. military individuals, soldiers we believe, who were in that convoy, who are also missing, but they found four bodies, the remains of what they believe to be four bodies in shallow graves at the site where that convoy was hit. 

The four are among the seven civilians that we were told yesterday by the coalition provisional authority who had been missing.  Officials in both Baghdad and Washington say the bodies were found near the intersections of Highways 1 and 10.  That is on the road between Abu Ghraib and Fallujah, very close to the site of that explosion.  They say they were directed to the site by an Iraqi who told coalition authorities that that‘s where they would find Americans.  The bodies beyond recognition. 

Officials don‘t know whether the damage to the bodies was caused by the fighting and the ensuing fire as the tankers burned or whether the bodies had been mutilated by the Iraqis who hit the area.  That, by the way, Dan is the same convoy that we believe that Thomas Hamill was in.  He is the 43-year-old from Macon, Mississippi, who we saw on television on Al-Jazeera on Monday and whose pictures we saw on Saturday.  They had been made on Friday by an Australian broadcasting company cameraman.  He believed to be alive but under a death threat if the U.S. does not pull its troops back from Fallujah. 

In addition to the hostages and the bodies that were found today, two French journalists were taken hostage today.  We believe one has been released.  The other still is missing and believed to be held.  Four Italians were taken hostage today.  The CPA says there are now at least 40 individuals from 12 different countries who are being held hostage and, Dan, they‘ve asked the FBI to come in and help out—Dan. 

ABRAMS:  Carl, very quickly, do they have any sense of who was responsible for this ambush? 

ROCHELLE:  Well, it could be the forces of Muqtada al-Sadr.  He is the Shiite cleric who has essentially declared war on the U.S. forces here.  At some point they said they weren‘t involved with that, but they very well may have been involved in that hit on the convoy, because they are operating in that area.  The CPA continues to say that they believe that foreign nationals are involved in this to some extent, but very likely it was forces from Muqtada al-Sadr.  They‘re going to try to find out.  They‘re going to try to make it all right, Dan. 

ABRAMS:  Carl Rochelle, thanks very much for that report from Baghdad.  And that‘s exactly what I want to talk about.  Joining us from Montgomery, Alabama, retired U.S. Air Force Colonel John Warden.  He was an architect of the Gulf War air campaign, also the author of “Winning in Fast Time”.  Colonel, thanks very much for coming on the program. 

All right.  So what do they do now?  I mean they find these bodies, this happened in Fallujah.  As a result of what happened in Fallujah, you saw troops go in, say enough is enough.  The lawlessness has to end.  Is this sort of discovery going to lead U.S. troops to up the ante when it comes to al-Sadr? 

COL. JOHN WARDEN, (RET.), U.S. AIR FORCE:  Well, it may well be, but we‘ve got a problem, Dan.  We‘ve got a problem here and Carl highlighted it saying he‘s not clear really who did this, so we need to be thinking about how we can make this response a strategic response and preferably a precise response.  One of the things we don‘t want to do is to accelerate this developing civil war, and we sure don‘t want to get into the middle of it.  And unfortunately, if we do what we might be inclined to do and that is to sort of run into Fallujah with a lot of force, we probably are going to see some results that we really don‘t want to—we don‘t want to see.  So the more that we can back off a little bit and figure out a way when to get more Iraqis involved in this and then two, to get directly after the people that were genuinely responsible, the better off we‘ll be in the long term. 

ABRAMS:  Colonel, does the military, and I guess this is almost a psychological question, but do they treat differently the idea of kidnapping and killing, either civilians or soldiers than they do simply killing on the battlefield in terms of the amount of the response? 

WARDEN:  I think that the American military people have long treated those two things differently.  I mean, everybody pretty much accepts the idea that on the field of battle, that you‘re out there shooting the other guy and the other guy is supposed to shoot you and that‘s sort of the way it‘s done, but we tend to see this kind of stuff as being unfair, outside the rules of law, which—of warfare, which of course it is, certainly outside the way we think about war in the West.  But this is the way that these kinds of people have been conducting warfare for really for a very long period of time.  So we‘ve got two competing sets of rules, and the fact that they‘re competing means that we do things that have a different understanding or different interpretation on the other side.  It‘s a tough problem. 

ABRAMS:  Yes and I wanted to make sure because you know as a human response, I get sort of angry.  I don‘t have really any...

WARDEN:  Sure.

ABRAMS:  ... justification for it, when I hear about that and it‘s interesting to hear that the military sort of focuses on that slightly differently as well, although you know no one is somehow minimizing the—what it means to have a U.S. soldier killed in battle in Iraq as well.  Colonel, thanks a lot for coming on the program.  Appreciate it. 

WARDEN:  Dan, thank you. 

ABRAMS:  Now to the 9/11 commission.  All day, today‘s focus law enforcement, specifically the Justice Department, the FBI, the CIA.  What did they know before the attacks and what, if anything, could have been done to prevent them?  Officials from the Clinton and Bush administrations testified, citing missed opportunities and red tape to explain why terrorist warnings went undetected prior to 9/11. 

Now in a strong defense of the Bush administration, Attorney General Ashcroft did everything short of saying blame them, the Clinton administration.  He cited really a figurative wall that prevented criminal investigators and intelligence agents from communicating effectively before 9/11.  He said it was established firmly in 1995, and he sort of jabbed at one of the members of the 9/11 commission, saying that she was the one who wrote it, former Deputy Attorney General Jamie Gorelick.

(BEGIN VIDEO CLIP)

JOHN ASHCROFT, ATTORNEY GENERAL:  The single greatest structural cause for the September 11 problem was the wall that segregated or separated criminal investigators and intelligence agents.  Government erected this wall.  Government buttressed this wall and before September 11, government was blinded by this wall.  The basic architecture for the wall in the 1995 guidelines was contained in a classified memorandum.  This memorandum laid the foundation for a wall separating the criminal and intelligence investigations as a matter of fact established the wall following the 1993 World Trade Center attack, which at the time was the largest international terrorism attack on American soil.  Full disclose compels me to inform you that the author of this memorandum is a member of the commission. 

Acting Director Pickard and I had more than two meetings.  We had regular meetings.  Secondly, I did never speak to him saying that I did not want to hear about terrorism.  I care greatly about the safety and security of the American people and was very interested in terrorism and specifically interrogated him about threats to the American people and domestic threats in particular.  There are a number of us who are worrying about the next war.  And we understand that al Qaeda is very likely to change its method of operation and its style or—to avoid detection and it‘s something when we have to understand the nature of this enemy that we face, it‘s an enemy that is not stupid. 

This is not some garden-variety criminal who is robbing a 7-Eleven.  They plan well.  They undertake actions that last for years.  They seek to inflict mass casualties.  This administration has tasked every quadrant of the administration to be alert.

(END VIDEO CLIP)

ABRAMS:  Joining me now, Edwin Meese, former attorney general who served in the Reagan administration, Robert Heibel, the former FBI deputy chief of counterterrorism, who also served in the Reagan administration, and journalist Ronald Kessler, who is author of the book “The Bureau: The Secret History of the FBI”.  Thank you all for coming on the program.  Appreciate it. 

Mr. Meese, let me start with you.  The attorney general is talking about this wall the he‘s saying look, she‘s the one who wrote the memo back in 1995, but you heard one of the commissioners later say wait a second, if this wall was such a big problem, why didn‘t you do anything about it in the eight months while you were in office? 

EDWIN MEESE, FMR. ATTORNEY GENERAL:  Well, I think that what John Ashcroft did indicate was that this was the interpretation of the law, it was on the books, and there was no question that there was a legal basis for this order.  This was corrected later in the Patriot Act and no longer is a problem, because of that.  So it—but I think the point he was making is that the wall that was established there was a hindrance and the order of 1995 went as it said in the order itself, that they were in an abundance of caution, they were going even beyond what was legally necessary. 

ABRAMS:  But you don‘t think he was also saying, look, it‘s not our fault.  I mean don‘t blame—and he specifically points out it was written in 1995 by one of the commissioners.  I mean you don‘t think that that was an intentional jab? 

MEESE:  I don‘t think it was an intentional jab.  I think it was an accurate portrayal of what the situation was at the time, and I think that, you know, it does change the situation, I think, for the commission.  It‘s entirely possible now that Ms. Gorelick may feel—she‘s a very conscientious person, a very excellent lawyer, she may feel compelled since she was a participant and a witness really to resign from the commission. 

ABRAMS:  Well I mean they must have known that, I mean coming in to this that she was obviously...

MEESE:  Well...

ABRAMS:  ... involved in many of the policies of the Clinton administration, right? 

MEESE:  Well, that‘s why I think perhaps it‘s strange that she was one of the members.  I don‘t know whether—when they created the commission they realized it would reach that far back in history. 

ABRAMS:  All right, let me—I want to talk about the Cole because that was another big issue that came up and that is what was this administration‘s reaction when there was effectively a decision made that al Qaeda was responsible for attacking the USS Cole and what did this administration do about it?  I‘m going to ask you about this in a moment Mr. Heibel.  Let‘s listen to John Ashcroft talking about that. 

(BEGIN VIDEO CLIP)

ASHCROFT:  Very frankly, we didn‘t get confirmation that the—as I explained earlier, that the command and control of al Qaeda might be involved in this matter until substantially later. 

UNIDENTIFIED MALE:  Can you remember when? 

ASHCROFT:  I believe it was either late in the summer or the fall of 2001 when the final determination was made and that was a time after which I believe we brought criminal charges. 

(END VIDEO CLIP)

ABRAMS:  Mr. Heibel, what do you make of that? 

ROBERT HEIBEL, FMR. FBI DEPUTY CHIEF OF COUNTERTERRORISM:  What you‘re talking about here, you have got the CIA saying that it‘s one thing to reach a conclusion with intelligence, because you don‘t have to be—you don‘t have to take the information to court, then you have the FBI having to take information to court, so the identifications of al Qaeda as the perpetrators were not simultaneous. 

ABRAMS:  But again, you know, it sounds like we‘re hearing the same thing we‘ve heard from both sides of the aisle, which is don‘t blame us, it wasn‘t our fault, didn‘t have responsibility for it, no? 

HEIBEL:  There‘s a basic challenge here between a criminal investigation and intelligence, and we see it over and over again, and that is that the goal of one is to take people to court and prove that they‘re guilty.  Where intelligence, you don‘t have to take people to court.  You don‘t have to have an element of proof.  And once you finished a criminal trial, it‘s over. 

ABRAMS:  Yes...

HEIBEL:  But with intelligence, it goes on and on. 

ABRAMS:  All right.  We‘re going to take a quick break.  More—we‘re going to have more of John Ashcroft‘s testimony with our panel in a moment.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more on the 9/11 commission‘s grilling of Attorney General John Ashcroft.  Plus, what former Attorney General Janet Reno and former FBI Director Louis Freeh knew about the al Qaeda threat before 9/11.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RICHARD BEN-VENISTE, 9/11 COMMISSION MEMBER:  At some point in the spring or summer of 2001, around the time of this heightened threat alert, you apparently began to use a private chartered jet plane.  Can you supply the details, sir, on—regarding the threat, which caused you to change from commercial to private leased jet?

ASHCROFT:  I‘m very pleased to address this issue. 

BEN-VENISTE:  Thank you.

ASHCROFT:  Let me just indicate to you that I never ceased to use commercial aircraft for my personal travel. 

(END VIDEO CLIP)

ABRAMS:  And he then went on to explain the difference between a chartered jet and a government airplane, saying there was really you know nothing to it.  Attorney General John Ashcroft testifying over an hour ago in front of the 9/11 commission. 

All right.  I want to go back—Ronald Kessler, journalist and author, you know it just seemed to me again, overview of Attorney General Ashcroft‘s testimony today that a lot of what the attorney general was saying was it was their fault, it was the Clinton administration‘s fault. 

RONALD KESSLER, AUTHOR, “THE BUREAU”:  Well, it was.  The Clinton administration was in office for eight years.  These people came in, they had eight months.  In the case of Ashcroft, he started in, I guess March, and all of a sudden people say well, they should have known everything that the Clinton people did and what was wrong with it and fixed it.  Now that‘s absurd. 

The really important issue is not what the president saw on August 6 or all these other peripheral issues, although they may be significant as well, but rather what was the FBI and what was the CIA doing to actually penetrate these organizations, actually develop the information that would stop a plot.  Because none of this other information would ever stop a plot.  You know, the Phoenix memo and the Moussaoui situation, none of that would actually have stopped the plot.  It would have been good if it all been tied together, if someone had said hey, there‘s a lot going on here, we should do more investigation...

ABRAMS:  Wait a second.  If they had found out about the Moussaoui and gone in and gotten that search warrant...

KESSLER:  Nothing...

(CROSSTALK)

KESSLER:  ... absolutely nothing.  It would not have contributed a thing...

(CROSSTALK)

ABRAMS:  Whoa, whoa, whoa...

(CROSSTALK)

ABRAMS:  Whoa, whoa, whoa.  You say even though Moussaoui may not have directly been—let‘s even assume for a moment that Moussaoui wasn‘t directly involved in the plot, OK.  Let‘s assume for a moment that they realize...

KESSLER:  Let‘s assume he was involved...

(CROSSTALK)

ABRAMS:  ... either way...

KESSLER:  The fact is when they actually searched his computer...

ABRAMS:  Yes.

KESSLER:  ... after all this back and forth...

ABRAMS:  Yes.

KESSLER:  ... about the fize (ph) on this and that, they found nothing.  They found nothing that actually tied him to anything.  So...

ABRAMS:  Well, no, but they found that there was this guy who was an Islamic extremist who was obsessed with the way that planes worked and he had all these...

KESSLER:  Well...

ABRAMS:  ... graphs and diagrams at his home, et cetera.

KESSLER:  On the same day, they found all kinds of other people with other methods for taking us down, explosives, et cetera.  So just knowing about planes doesn‘t tell you anything either.  I mean...

ABRAMS:  What do you mean it doesn‘t tell you anything?  What do you mean?

KESSLER:  Because you know as a lawyer, you have—you know that in order to actually find out what is going on in a plot, let‘s say just a bank robbery, you have to have an inside source or an intercept of a communication, something that actually tells you what these people are going to do.  And none of this in fact did that.  You know it was a lot of dots, but in fact, no information.

ABRAMS:  Well, you...

KESSLER:  What you needed was developing the sources the way the FBI did with the Mafia, with the KGB...

ABRAMS:  All right, look, that‘s in a perfect world...

KESSLER:  ... they did not do that.

ABRAMS:  Look, that‘s in a perfect world that would be the result and you can make the argument...

KESSLER:  Well, that‘s why we have the FBI...

ABRAMS:  ... that you found out more. 

ABRAMS:  All right, let me...

(CROSSTALK)

ABRAMS:  Understood, understood.  Let me play former director of the CIA‘s counterterrorism Mr. Black testified today and talked about money.

(BEGIN VIDEO CLIP)

J. COFER BLACK, FMR. DIR. CIA COUNTERTERRORISM CTR.:  When I started this job in 1999, I thought there was a good chance I was going to be sitting right here in front of you and I was mentally prepared for it all along. 

The shortage of money and people seriously hurt our operations and analysis.  In CTC we heard our director‘s call.  I‘ve heard some people say this country was at war.  I want to tell you, Mr. Chairman, the counterterrorism center was at war, we conducted ourselves at war.  You shall never hear from us, you know we didn‘t get it. 

Oh, we got it all right.  We knew what we were up against.  We gave it all we had.  We didn‘t have enough people to do the job and we didn‘t have enough money by magnitudes. 

(END VIDEO CLIP)

ABRAMS:  Mr. Heibel, that‘s the theme we heard from just about everyone today.  What do you make of that? 

UNIDENTIFIED MALE:  Who are you asking? 

ABRAMS:  Mr. Heibel. 

UNIDENTIFIED MALE:  Right.

HEIBEL:  It‘s a message that certainly Louis Freeh put out today and looking back on it, there were a lot of people that were mouthing terrorism as the top priority in the nation, but the fact was that the money was not being allocated by Congress to effectively fight it.  So there were years when the FBI was only getting 3.5 percent of the counterterrorism budget...

ABRAMS:  Mr. Meese, the issue of the budget, you heard the attorney general again I think sort of talking about who was responsible for the budget problems and basically saying, look, we were—our hands were tied by the time that we came in.  Is that a fair characterization do you think? 

MEESE:  Well, it is fair because the way our budget process works in this country, budgets are usually prepared and presented to Congress almost two years in advance, so the budget under which the Bush administration operated had been presented to Congress the year before, it had been prepared by the Clinton administration, and that was already in effect three months before the Bush inauguration.  So they were operating under the fiscal year 2001 budget, which they had nothing to do with either preparation or the passage in Congress. 

ABRAMS:  But they could have asked for more, correct?

MEESE:  Well you can always ask for a supplemental, but that‘s very difficult to do...

ABRAMS:  Yes.

MEESE:  ... as has been pointed out by others on this panel.  We‘re trying to pass judgment on an outfit that had just gotten into office and if you remember, there were considerable delays in getting some of the people confirmed, including the attorney general. 

ABRAMS:  All right.  Stick around.  Coming up, former FBI Director Louis Freeh reacts to a scathing report blasting the FBI for failing to make changes that might have helped prevent 9/11. 

Plus, an NBC News exclusive—the 1993 Michael Jackson accuser won‘t testify at the grand jury deciding whether to indict Jackson on molestation charges.  Question—is this good news for Michael Jackson? 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Welcome back.  Now our continuing coverage of the 9/11 commission hearings.  Today focusing on law enforcement, primarily the attorney general and the FBI, but before testimony even began today, the commission released a scathing report saying the FBI failed miserably over the past several years to reorganize and work in concert with other agencies to share information. 

During his testimony, former FBI Director Louis Freeh disputed the report saying most of the problems came from being understaffed.  Janet Reno, attorney general under the Clinton administration also said she didn‘t think the solution would be the creation of a new domestic agency.  Here‘s a portion of what they said. 

(BEGIN VIDEO CLIP)

JANET RENO, FMR. ATTORNEY GENERAL:  When I came into office, I learned that the FBI didn‘t know what it had.  We found stuff in files here that the right hand didn‘t know what the left hand was doing. 

(CROSSTALK)

RENO:  A lot of talk about a new agency.  Don‘t create another agency.  The worst thing that you—or recommend it.  The worst thing you can do is create another agency and then we‘ll be back talking about whether they can share here or there or what.  Let‘s try to work through it. 

LOUIS FREEH, FMR. FBI DIRECTOR:  September 11, had we had the right sources overseas or in the United States could have been prevented.  We did not have those sources.  We did not have that telephone call.  We didn‘t have that e-mail intercept that could have done the job. 

An arrest warrant, two of them for bin Laden in the southern district of New York was not going to deter him from what happened on September 11.  But the point of these investigations was in the absence of invading Afghanistan, in the absence of armed predator missiles seeking out our enemies, in the absence of all the things that were appropriately done after September 11.  When the United States declared war back on al Qaeda, we were left with alternatives, which were better than no alternatives. 

It is imperative in my view that the commission distinguish between the period before September 11 and the period after September 11.  That this is, I would respectfully suggest, a central question for the commission and for the American people.  And I think the inability to focus on that question leaves not only a lot of speculation, but I think a lot of misinformation about some of the activities and some of the dynamics here involved. 

(END VIDEO CLIP)

ABRAMS:  Mr. Heibel, if 9/11 could have been prevented, according to Louis Freeh, if they had the right sources et cetera, whose responsibility is that?  Was that the FBI‘s responsibility, the CIA, how did it work then? 

HEIBEL:  Certainly within the United States, the FBI is the lead agency on terrorism, so they have the responsibility within the United States.  I think the attorney general hit it on the head with the information.  It was the FBI at that time because if it‘s information technology failings, didn‘t know what it had, it kept coming up with new information, and as a result, it couldn‘t do the analysis on some—on the information and it was not producing strategic intelligence and not disseminating.  So they had—the problem here is information technology and analyzing information that they have. 

ABRAMS:  Mr. Kessler, do you agree? 

KESSLER:  I agree entirely and the person responsible for that is Louis Freeh.  Louis Freeh, when he first came into office, took the computer out of his own office, didn‘t use e-mail, thought computers were silly, and the result is that the FBI was using computers that nobody would even take as a donation to church.  They couldn‘t e-mail a photo.  They couldn‘t have e-mail or they simply were paper based.  And the same with analysis.  Louis Freeh, I think you could tell from his testimony, would focus on cases, on indictments, but he didn‘t seem to understand that in order to really stop a plot, you have to become proactive and aggressively seek out sources and do analysis as well. 

ABRAMS:  Do you think it‘s fair, Mr. Kessler, the distinction between the pre-9/11 mentality and the post-9/11 mentality? 

KESSLER:  No.  I think that there certainly is a difference and that we all were not sensitive to the threat when we should have been.  I mean bin Laden had said publicly in 1998 he wants to kill Americans, had followed up with bombings against the embassies and against the Cole, but at the same time even aside from that, the FBI was not doing its job because of Louis Freeh.  I did an op-ed in “The Washington Post” when he was director saying he was the Teflon director.  That every six months, there was a major fiasco. 

The Jewel (ph) case, the Wynn Olli (ph) case, the laboratory problems, and I traced all of them to his decisions, or lack of decisions, and yet he continued as director and this failure in counterterrorism is part of that.  He was not focused on this issue.  He was a very bad manager.  He would punish the messenger when people brought him bad news or news he disagreed with.  I quoted in my book people like Weldon Kennedy who was deputy director under him, as saying if you told him anything that was—disagree with anything he said, he would slap you down. 

ABRAMS:  It seems no one was focused on it quite enough.  Let me play a piece from Janet Reno talking about the issue of assassinating Osama bin Laden.  Did she view that as a possibility?  Was it on the table during the Clinton administration?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  When Osama bin Laden declared war on the United States, did he have a position in your view of the law that protected him from assassination under the anti-assassination provisions of our laws and regulations? 

RENO:  I have not pined on that and I would have to look at all the facts at the time of the thought to know.  I was not asked whether they could assassinate him.  I was asked whether they could capture or—and follow through.  Again, my personal opinion would be that he could be captured or killed. 

(END VIDEO CLIP)

ABRAMS:  Mr. Meese, is it an important distinction? 

MEESE:  Well I‘m not—you know we‘re again looking at it after the fact.  I think that when he declared war on the United States, that made him an enemy combatant and I think from that point on, there should not have been a distinction.  I think that‘s what Attorney General Ashcroft said this afternoon, that he recognized that as soon as he came into office. 

ABRAMS:  But you know it‘s very easy to say after the fact, right?  I mean I would assume everyone is going to say now, yes, killing Osama bin Laden was always a possibility.  Clinton would say we sent over missiles, right? 

MEESE:  Well, I think that is what could be said.  There‘s some question about the missiles that were sent.  But nevertheless, I think that we were in a war at that time, we know better in hindsight what the situation was, but I don‘t think that that‘s the opportunity to either kill or capture didn‘t come about during that period of time. 

ABRAMS:  Mr. Heibel, I want you to listen to this piece of sound from Louis Freeh about the cooperation.  We keep hearing how the CIA and FBI couldn‘t cooperate.  Not Louis Freeh‘s position. 

(BEGIN VIDEO CLIP)

FREEH:  There was extremely good cooperation between the FBI and the CIA and that goes back to matters such as the Cole bombings, the East African embassy bombings. 

(END VIDEO CLIP)

ABRAMS:  What do you make of that, Mr. Heibel? 

HEIBEL:  Well, I think your report number nine that you put—or that the committee—the commission put out says that the cooperation between the CIA and FBI was fairly good over the last four or five years and I would think that for the FBI to have been successful in its investigations of the bombing in—of the Saudi barracks, of the Cole, of the bombings of the embassies in 1998, that they would have had to have close cooperation with the CIA, State Department, and any other entities, agencies abroad.

ABRAMS:  Edwin Meese, Robert Heibel, Ronald Kessler, thank you very much.  Appreciate it. 

KESSLER:  Thank you.

ABRAMS:  Coming up, the grand jury deciding whether to indict Michael Jackson on molestation charges expected to wrap up by next week.  They won‘t hear from Jackson‘s ‘93 accuser.  The young man has reservations about testifying now.  What does that mean for the case? 

Plus, the difficult task of building or finding a jury for the Scott Peterson trial.  We‘ll get a progress report from Redwood City. 

Don‘t forget your take on the show.  E-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Now to the Michael Jackson case and another exclusive.  NBC News has learned that Michael Jackson‘s accuser from the 1993 case, a boy now in his early 20‘s, has not and will not testify before the grand jury as many had anticipated.  A source saying—quote—“he‘s not coming and he‘s not ready to do it”.  That while the Jackson—while the boy wants Jackson punished for his actions, according to the source, he‘d like his own identity to remain anonymous for as long as possible and would like to tell his story only once, maybe at the trial.

NBC News has also learned that the boy has concerns that the Santa Barbara D.A. may blame him personally for pulling out back in ‘93 after he settled his case for millions.  Grand jury expected to wrap up by the end of the week or early next week, but question—how much of an impact will this have on the case?  Might this prevent them from establishing a pattern of conduct on the part of Michael Jackson? 

Joining me now, Paul Pfingst, former California prosecutor, the former D.A. of San Diego, and an MSNBC analyst and Karen Russell, a criminal defense attorney.  All right, Paul, how big a deal? 

PAUL PFINGST, FORMER PROSECUTOR:  Not a big deal because this case ultimately is going to stand upon the particular facts having to do with the accusation, the most present accusation.  This is an attempt I think by D.A. Tom Sneddon to balance his regard for a victim who does not want the sordid details of this event to be in the press with the need for the prosecution to have that witness at trial.  They can have both.  The witness doesn‘t testify at the grand jury, but the witness does testify at a trial if the judge permits it. 

ABRAMS:  But if he‘s already reluctant, doesn‘t that make you kind of skittish if you‘re the D.A.? 

PFINGST:  No, because this witness has probably been deposed before and has probably been interviewed by D.A. investigators and is pretty locked in to the witness‘s testimony, so I don‘t think bringing the witness in front of a grand jury is going to be a real big addition and it won‘t subtract from his trial testimony.  So this is the right way to go.

ABRAMS:  Karen, how important is establishing a pattern of conduct for the prosecutors? 

KAREN RUSSELL, CRIMINAL DEFENSE ATTORNEY:  Well I‘ve always thought—

I mean I think that if they were—there were other credible accusers that came forward that it would be damaging for Mr. Jackson.  But I‘ve never thought that this was a lock, that they were always going to be able to hear from the ‘93 accuser and I think beyond that the ‘93 accuser also has a lot of baggage that I think that the prosecutor quite wisely wanted to sidestep this early on in the process. 

ABRAMS:  (UNINTELLIGIBLE) Paul, is that possibly the reason, that you know they don‘t want the grand jurors questioning, well, why did he pull out?  Could this be another case for money, et cetera? 

PFINGST:  No, I think the reason is because the ‘93 accuser has a very legitimate concern that if he testifies in front of the grand jury, 10 days after an arraignment, if there‘s an indictment in this case, the whole world will be talking about some of the most embarrassing and humiliating portions of his life. 

ABRAMS:  Why?  Does it become public? 

(CROSSTALK)

PFINGST:  Yes.  It becomes public 10 days—if there is an indictment, the grand jury transcripts would be unsealed 10 days after an arraignment, and who, who would want that out in the public especially if it wasn‘t absolutely necessary to get an indictment. 

ABRAMS:  Karen, any chance that this grand jury won‘t indict Michael Jackson? 

RUSSELL:  You know, I mean as you pointed out last week, I think the judge sort of tipped his hand and said you know despite the gag order that he thought that there was going to be an indictment and like one of your guests said, it‘s, you know it‘s easy—you can indict a ham sandwich, so I do think because of the high profile nature of the celebrity in this case, they will be moving forward.  I just wonder, you know I mean the ‘93 addition—you look at ‘93, there was no crime, there were two grand juries, and there is this incredible amount of baggage around this kid that I think is dangerous. 

And I think that this guy—I think Sneddon—I think on one hand, it‘s illuminating that Sneddon is not relying on the ‘93, so maybe there is actual proof evidence in this case.  It does seem kind of shaky though.  I mean this—a lot of credibility issues...

ABRAMS:  Paul...

RUSSELL:  ... for everyone involved. 

ABRAMS:  ... very quickly, everyone always says you can indict a ham sandwich.  Is that true in California though?  Because in California it‘s a little tougher, right? 

PFINGST:  No.  I mean there are...

(CROSSTALK)

PFINGST:  ... real people sitting on this grand jury. 

ABRAMS:  You have to present...

PFINGST:  They don‘t indict ham sandwiches.  It‘s silly.

ABRAMS:  No.  But I‘m saying that you have to present the defense side...

PFINGST:  Yes.

ABRAMS:  ... of the case as well, right? 

PFINGST:  You have to present the prosecution and the defense...

RUSSELL:  ... the standard of proof is so low. 

ABRAMS:  All right.

RUSSELL:  Low, low, low standard of proof. 

ABRAMS:  Paul Pfingst, Karen Russell, thanks a lot. 

Coming up, finding a jury in the Scott Peterson case.  What is taking so long?  We‘ll get a live report.

Plus, remember the New York judge arrested for drunk driving who allegedly stumbled and slurred?  She was found not guilty by a jury.  I‘ll tell you why that should not mean she goes free and clear back to judging others as she is in a big case 10 days later.  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  Now to the Scott Peterson case, where we‘re just over a month away from the date opening statements are supposed to begin.  But not even half of the potential jury pool has been chosen and rumor the defense attorney Mark Geragos might ask to move the trial again. 

Edie Lambert from NBC affiliate KCRA has been following the trial each and every day and joins us with an update.  Edie lay out exactly what they‘re looking for in terms of numbers, what do they have so far, and what‘s been happening today. 

EDIE LAMBERT, KCRA CORRESPONDENT:  We‘re at exactly about the halfway point, Dan, but I can tell you that one of the biggest stories from court today illustrates just how difficult it is to find a good jury.  You probably remember the potential juror who was accused by the defense a couple of weeks ago of lying to get on the jury pool.  She was bounced from the case officially today and she may actually now face prosecution for perjury. 

Now I can give you some background on her case.  She was the retired secretary and also a grandmother from the San Mateo area who came into court and said under oath that she can be fair, she had not made up her mind about the case.  What she didn‘t know is that someone who sat by her on a bus trip to Reno had called defense attorney Mark Geragos‘ office claiming that she said on that trip that Scott Peterson is—quote—

“guilty as hell”.

Now I just saw court documents a couple of minutes ago and she also

had some choice words for Mark Geragos.  Quote—“Anyone who defends a

wife killer and a child molester deserves to lose”.  Referring that second

reference to the Michael Jackson case.  Now at the time she denied it.  She

and her accuser were supposed to come back to May.  But I‘ve learned the detectives from the Modesto Police Department interviewed that accuser, they felt that he was such a credible witness that they convinced the prosecution just go ahead and agree to dismiss this person from the jury pool.  She should be bounced.

Now Geragos is also sending the case to the San Mateo County District Attorney for possible prosecution.  And the D.A. told us today that perjury cases like this are pretty tough to prosecute.

(BEGIN VIDEO CLIP)

JIM FOX, SAN MATEO COUNTY DISTRICT ATTY:  There may be a basis to begin an investigation, but at this point it‘s too early to say.  Perjury prosecution requires more than just one witness saying that he heard the juror say something and she denies it.  There has to be corroborating evidence, and at this point, I don‘t know whether there‘s a basis to actually begin a formal investigation or not.

(END VIDEO CLIP)

LAMBERT:  Perjury is a felony with a maximum four-year prison term.  Now let‘s bring you up up-to-date on the numbers.  Of the 998 people who originally filled out jury questionnaires, most were dismissed for hardship, 317 scheduled to come back to court for questioning.  They have now gone through about 150 of those and as of right now, 37 are qualified for the final jury pool.  That‘s more than half of what they need before they can actually seat a jury.  Opening statements are scheduled for May 17 and the Judge Delucchi has said he feels like they‘re right on track.

I‘m Edie Lambert reporting live in Redwood City.  Dan, back to you. 

ABRAMS:  All right, Edie, thanks a lot. 

Coming up, my “Closing Argument”—why a New York judge who was found not guilty of drunk driving still needs a major credibility check.      

(COMMERCIAL BREAK)

ABRAMS:  Your e-mails are coming up about the effort to get Martha Stewart a presidential pardon.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why a not guilty verdict for a judge shouldn‘t necessarily mean free and clear, case over.  New York State Supreme Court Justice Donna Mills found not guilty last week of driving under the influence and now 10 days later she‘s back on the bench presiding over a big case.  A hearing to determine whether to release Daniel Rakowitz (ph), who boiled his girlfriend and then fed her body in a soup at homeless shelters.  He was found not guilty by reason of insanity 15 years ago, but for purposes of this editorial, he‘s not the point, she is.  Justice Mills refused a sobriety test.  Her drinking companion testified she was effectively bombed after drinking scotch for hours. 

The cops testified she was slurring, had difficulty walking after she plowed her father‘s Rolls Royce into parked cars.  Even though the cops who arrested her were black and Hispanic, she claims they singled her out because of her race.  And even though the defense presented no evidence to support her allegations of racism, a minority jury bought it and found her not guilty.  OK, fine.  The verdict must be accepted, but that does not mean that the state judicial panel cannot and should not take its own action to maybe suspend her. 

How can she any credibility sitting in judgment when she says she distrusts the system so much that she‘s unwilling to submit to a sobriety test?  And remember when the rest of us refuse the test, the presumption of innocence shifts to a presumption of guilt.  You automatically have your license suspended. 

There are many instances where a professional organization investigates even though no crime has been committed, it happens to lawyers all the time and how about police officers who are accused of crimes then acquitted?  At times they‘re still punished within their departments or even prosecuted for federal civil rights violations.  Look at President Clinton impeached by Congress for lying under oath.  No crime charged there.  Judges are too important to have questions as to whether they are abiding by the rule of law that they‘re empowered to uphold. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Martha Stewart pardoned by the president?  That‘s the hope of last night‘s guest John Small and his Web site, Savemartha.com.  He‘s gotten about 12,000 signatures, but the vast majority of you not buying it. 

Brett Stover, “There‘s no way Martha Stewart should get a pardon for her crimes.  You can tell she doesn‘t regret anything but getting caught.”

From Minnesota, Dean Otterson—“You have to be kidding.  Giving this person a pardon would be a slap in the face for those who have fought and died defending the U.S. Constitution.”

Carl Garland from Richmond, Virginia.  “Hey Dan.  Thanks for the laugh.  I think Mr. Small should help serve her sentence.” 

Jill Dawson has similar thoughts from Chesapeake, Virginia.  “She was found guilty and she should go to jail.  John Small should go with her for condoning her actions.”  Come on. 

Linda writes, “I‘m sick to death of this movement to free Martha Stewart from her criminal actions after the fact.  I think she should be sentenced like any other criminal.”

But Aileen O‘Neill from Vermont writes, “What I find most disconcerting about this whole matter is the simple fact that Ms. Stewart was not under oath.  Others who have been pardoned have done far worse than Martha Stewart.  Take Richard Nixon and Marc Rich.”

Finally 17-year-old Veronica Breakey would rather watch something other than this program, but apparently she doesn‘t have the final say at home.

She writes, “My mom watches your show everyday at 6:00 p.m. and I am sick of it.  If I hear one more report on Martha Stewart, Michael Jackson or Scott Peterson, I‘ll just die.  Do you realize that your show is on opposite “The Simpsons”?  That just takes watching your show from agonizing to unbearable.”  Sorry, Veronica. 

Your e-mails, abramsreport—one word -- @msnbc.com.  We‘ll go through them and read them at the end of the show. 

Thanks for watching.  See you tomorrow—you too, Veronica. 

END   

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