updated 4/15/2004 10:28:15 AM ET 2004-04-15T14:28:15

Guests:  Richard Ben-Veniste, Buck Revell, Jack Rice, Jim Thomas, Michael Kane, Mickey Sherman, Chris Van Wagner, Timothy Longo, M. Rick Turner, Theodore Simon, Aitan Goelman

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

DAN ABRAMS, HOST:  Hi, everyone.  CIA Director George Tenet says it will take another five years before U.S. intelligence is at the level the country needs.  We‘ll have highlights from today‘s testimony and we‘ll ask commission member Richard Ben-Veniste about politics and the commission. 

The LAPD says it‘s investigating another claim of child abuse against Michael Jackson dating back to the late 1980‘s, but there are serious questions about the story.  Jackson‘s attorneys call this a smear campaign driven by money-hungry lawyers.  We‘ll ask what happens when people start coming out of the woodwork in high-profile trials. 

And the Wisconsin college student accused of faking her own kidnapping last month, now facing criminal charges.  Police believe Audrey Seiler was lying to get her boyfriend‘s attention. 

But first tonight, the 9/11 commission hearings, both the CIA and FBI directors testified today.  We‘ll get to that in a moment.  But at times the testimony‘s substance has been overshadowed by accusations of politics.  Today‘s more conservative “New York Post” headline—“National Disgrace, Partisan politics over truth”—and today Representative James Sensenbrenner, a Republican, who‘s also chairman of the House Judiciary Committee, calling for one of the commissioners to step down, Democrat Jamie Gorelick. 

In a written statement he says because Gorelick was instrumental in establishing the so-called wall between criminal and intelligence investigations during her time as deputy attorney general, she—quote—

“Has an inherent conflict of interest.  Thus I believe the commission‘s work and independence will be fatally damaged by the continuing participation of Ms. Gorelick as a commissioner.”

But it may not be Commissioner Gorelick taking the most heat for being partisan.  Richard Ben-Veniste has also been accused of the same things during the hearings, both notably during Condoleezza Rice‘s testimony last week. 

(BEGIN VIDEO CLIP)

CONDOLEEZZA RICE, NATIONAL SECURITY ADVISER:  I believe the title was “Bin Laden Determined to Attack Inside the United States.” 

(CROSSTALK)

RICE:  Now the PDB...

UNIDENTIFIED MALE:  Thank you.

RICE:  ... no, Mr. Ben-Veniste...

UNIDENTIFIED MALE:  I will get into...

RICE:  I would like to finish my point here. 

UNIDENTIFIED MALE:  I didn‘t know there was a point. 

RICE:  Given that—you asked me whether or not it warned of attacks...

UNIDENTIFIED MALE:  I asked you what the title was. 

(END VIDEO CLIP)

ABRAMS:  I talked to him today, moments after the hearing and asked about the politics involved and whether Commissioner Gorelick should step down. 

(BEGIN VIDEOTAPE)

RICHARD BEN-VENISTE, 9-11 HEARINGS COMMISSIONER:  We‘ve had the opportunity to study Mr. Sensenbrenner‘s statement and over lunch today and the commission unanimously believes that, of course, Ms. Gorelick should not resign.  She is one of the most studious and well-informed and active members of our commission.  She is an important member and she will continue.  Now Commissioner Gorelick has recused herself, of course, from any—anything on the commission to do with her prior service as has every commissioner who has had any connection with anything we are looking at. 

ABRAMS:  What do you say to those who say the commission and, specifically you, have become—have made this too partisan and, as a result, that the commission‘s findings are questionable. 

BEN-VENISTE:  Well, first of all, we are acting in a totally bipartisan way.  All of the questioning that I have done has been supported by my colleagues on the commission.  And I think people need to know that there‘s a difference between partisanship and probing. 

ABRAMS:  But you have been harder on, for example, Condoleezza Rice, than was just about any other commissioner. 

BEN-VENISTE:  Well, I had one opportunity to question Dr. Rice about a matter, which we had not been able to question her about previously and that was the PDB.  The fact is that I might not have another opportunity to ask Dr. Rice about it and it was very important that we get the PDB out. 

ABRAMS:  And what about those who are saying that the panel, as a whole, the commission as a whole‘s report, you know may not be as persuasive to the public as it otherwise might have been, at least because of the perception that, for example, the Democrats have gone harder at the Bush administration and the Republicans, for example, went harder at Richard Clarke? 

BEN-VENISTE:  Well, I think the net result of that is that the truth will out.  It was entirely appropriate and I said so at the time for hard questions to be asked of Mr. Clarke.  Now our staff statement corroborated Mr. Clarke‘s version on virtually every point relevant to our inquiry.  The big furor over Dick Clarke‘s book was in his criticism over the invasion of Iraq, which he contends was counterproductive to the war against al Qaeda.  Now people can make up their minds about that, but that‘s not a subject of our inquiry.  What we‘re concerned about is 9/11 and that‘s plenty much for us to deal with. 

ABRAMS:  Very—are you surprised by the amount of reaction to the commission and, in particular, to you?

BEN-VENISTE:  Well, I don‘t have time to really look at what all the reaction is.  If you can believe it, I‘ve got a day job and I‘m in the middle of a trial, which has gone on for the last month in New Jersey in which I‘m getting back to this evening.  So, I don‘t have time to spend, you know, pouring over accounts. 

ABRAMS:  Richard Ben-Veniste, thanks a lot for taking the time. 

Appreciate it.

BEN-VENISTE:  You‘re very welcome. 

(END VIDEOTAPE)

ABRAMS:  And now to today‘s testimony of FBI Director Robert Mueller and CIA Director George Tenet.  While both admit changes need to be made in their respective organizations, Tenet said it can‘t happen anytime soon. 

(BEGIN VIDEO CLIP)

GEORGE TENET, CIA DIRECTOR:  We‘ve spent an enormous amount of time and energy transforming our collection, operational and analytical capabilities.  First thing I would say to the commission is that the care and nurturing of these capabilities is absolutely essential.  It will take us another five years to have the kind of clandestine service our country needs. 

(END VIDEO CLIP)

ABRAMS:  Five years.  Let‘s check in with our guests on that.  Buck Revell began his service in the FBI...

(CROSSTALK)

ABRAMS:  ... in ‘64, retired in ‘91 as executive assistant director in charge of investigative and intelligence operations, which included tracking terrorists.  And Jack Rice, former CIA field operative from 1990 to ‘94, serving in both Bush I and Clinton administration.  Good to see you both.

Mr. Revell, let me start with you.  Five years for the intelligence operations to be where they should be? 

BUCK REVELL, FMR. FBI OFFICIAL:  Well, the recruitment and direction of confidential source of assets is a very difficult process, particularly in some of the areas of the world where the agency has to operate now.  I don‘t think that George meant—that Director Tenet meant that it would be five years before the process was improved or progress was made.  But I think it‘s probably realistic to think that we may not have all the sources in place, all the places and under the circumstances that we need for as much as five years.  But that doesn‘t mean that progress shouldn‘t and won‘t be taking place during the interim. 

ABRAMS:  No, I understand.  Mr. Rice, that‘s kind of a shocking statistic, I think...

(CROSSTALK)

ABRAMS:  ... for those of us on the outside who say we were in such bad shape.  Our intelligence operations are so outdated that it‘s going to take five years to get them to where they should be.

JACK RICE, FMR. CIA FIELD OPERATIVE:  Dan, you know, it is a very good point.  It‘s frightening, the prospect of it.  Will it take five years?  I think it may take longer than that.  You realize the lack of intelligence capability that we had, additionally, the fact that we weren‘t able to get a lot of the sources that we needed in very, very difficult places like Karachi, like parts of Afghanistan, parts of the southern republics and it takes an awfully long time to get those people in the proper places for us.  So five years...

ABRAMS:  But why...

RICE:  ... it may be longer.

ABRAMS:  ... why were we some—everyone talks about the walls.  I understand that. 

RICE:  Right.

ABRAMS:  The communication issues I get or the lack of communication between the organizations, fine.  Understood.  But why is it—let me ask a CIA question to you, Mr. Rice, why is it that the CIA wasn‘t—didn‘t have these kinds of operatives, didn‘t have these sort of intelligence gathering in these places earlier? 

RICE:  It‘s a very good question.  I think you have to look back into the ‘80‘s and even into the ‘70‘s and you realize that we weren‘t having the motivation we were to have something called human intelligence.  We were looking at signal intelligence, at satellites, at technology, thinking this was the panacea and you realize the only way to understand what people are doing in these—in some of these remote areas is to have our people on the ground. 

ABRAMS:  Yes.

RICE:  We didn‘t have the capability, we didn‘t have the intelligence, we didn‘t have the understanding, we didn‘t have the language skills.  Those are the things that we have to do and we haven‘t done. 

ABRAMS:  Here‘s George Tenet talking about some of the other problems.

(BEGIN VIDEO CLIP)

TENET:  There were at least four separate terrorist identity databases at stake, CIA, the Department of Defense and the FBI.  None were interoperable or broadly accessible.  There were dozens of watch lists, many haphazardly maintained.  There were legal impediments to cooperation across the continuum of criminal intelligence operations.  It was not a secret at all that we understood it, but, in truth, all of us took little action to create a common arena of criminal and intelligence data that we could all access. 

(END VIDEO CLIP)

ABRAMS:  Mr. Revell, what was the number one biggest problem in your mind pre 9/11 when it came to the FBI and CIA? 

REVELL:  Well, the FBI and CIA were absolutely prohibited by law from sharing certain types of information...

ABRAMS:  And that was the biggest problem?

REVELL:  The Congress knew this—that certainly was a big problem. 

In the exchange of information on a real-time data basis.  Now they were—they had FBI agents in the CIA ops center and CIA agents in the FBI center.  We worked many joint cases together, even when I was there, so there was that type of exchange.  But there were certain issues that we could—for instance, we could not give the CIA any information about American citizens or American nationals unless they were overseas and involved with a hostile foreign government.  There were absolute restrictions on sharing grandeuring (ph) information under Rule 6-E.  The Privacy Act and the attorney general guidelines gave limitations to what the FBI could collect.  So those kinds of things were more than a culture, it was the barriers that were between our ability to share information on a real-time basis. 

ABRAMS:  And a lot of those barriers have been knocked down by the Patriot Act.  Jack Rice and Buck Revell thanks a lot for coming on. 

UNIDENTIFIED MALE:  Thank you, Dan. 

ABRAMS:  Coming up—get this—someone else is saying Michael Jackson molested him back in the 1980‘s.  Police are investigating, but there are serious questions about his story.  Jackson‘s attorneys say he‘s trying to capitalize on Mr. Jackson‘s current legal situation. 

And the Wisconsin college student who police say faked her kidnapping, now facing criminal charges after police launched a massive search.  Police say Audrey Seiler broke down saying—quote—“it just got so out of hand.  I did not mean for it to.  Everybody did so much for me.”

(COMMERCIAL BREAK)

ABRAMS:  Coming up—another person accusing Michael Jackson of sexual molestation.  But the question—could he be trying to cash in on Jackson‘s troubles?  We‘ll talk to some people who have seen a lot of these high-profile cases and ask them how they deal with people coming up as the case proceeds.

(COMMERCIAL BREAK)

ABRAMS:  Now to the Michael Jackson case.  We‘ve long known there was another accuser in 1993.  We also know police are investigating another alleged molestation back then.  Well now it seems another person is coming out, accusing Michael Jackson of sexual abuse.  The Los Angeles Police Department released this statement late last night. 

“The victim alleges the acts took place in the city of Los Angeles in the late 1980‘s.  The department‘s Juvenile Division Child Protection section is currently investigating the allegations.” 

But many are questioning this story including Jackson‘s lawyers who say, “This appears to be a malicious attempt to undermine Mr. Jackson‘s right to a fair hearing on the charges presently pending.  We have to question the timing and purpose of this 20-year-old false allegation being raised at this time.  We believe that this smear campaign is driven by money-hungry lawyers seeking to capitalize on Mr. Jackson‘s current legal situation.”

So, how do you deal with people coming out of the woodwork during high-profile cases?  Joining me now three people who know a lot about it—former Santa Barbara County Sheriff and MSNBC analyst Jim Thomas who investigated Jackson in 1993, Michael Kane who was special prosecutor for the JonBenet Ramsey murder investigation, and defense attorney Mickey Sherman, who has handled many high-profile cases. 

All right, Mr. Thomas, let me start with you.  Do you know anything about this guy who is coming forward, anything about these allegations? 

JIM THOMAS, FMR. SANTA BARBARA SHERIFF:  Well it sounds an awful lot, Dan, like an allegation that we heard of a few weeks ago that the Santa Barbara authorities did investigate and found not to be credible.  However, because he alleges that it happened in L.A., it would still be incumbent on the L.A. authorities to do a full investigation. 

ABRAMS:  All right.  So—and I assume back in ‘93 there was a lot of people when the minute it gets in the news that a lot of people came forward and said, well, I saw this or I knew this.

THOMAS:  Yes.  You know, but there weren‘t many victims.  Of course, the one that‘s the result of this L.A. news release from last night was not mentioned to us in 1993. 

ABRAMS:  Yes.

THOMAS:  We only had the two.  But we had a lot of witnesses that came forward, but not very many victims and I think the same is probably the case for this current case. 

ABRAMS:  So, Mr. Kane, how do you deal with this?  I mean I know in the Ramsey case you had all sorts of people coming forward with a tip and a this and a that and I mean you must have had some wacky ones coming in that case, right?

MICHAEL KANE, FORMER PROSECUTOR:  Yes, we did and you have to deal with it very carefully.  You have to be very circumspect.  People have different motives.  Some people just truly believe that they saw something that‘s relevant.  Other people want the limelight.  Sometimes you even have good witness who do know something that gets so wrapped up in the limelight that they end up saying things that they really didn‘t see and so it‘s—it can be a nightmare. 

ABRAMS:  And Mickey, as a defense attorney, I‘ve got to believe it can be even more of a nightmare. 

MICKEY SHERMAN, DEFENSE ATTORNEY:  You know I think what happened here is that they missed the sign up deadline for “American Idol” or “The Apprentice” so they‘re cashing in on the Michael Jackson show.  I‘ve got to say you know I‘ve been through this Dan, as you know.  The problem is you don‘t know who‘s the nut and who‘s not and the big case brings out the big nuts and plenty of them, especially when there‘s a little pot of gold at the end.  But you still have to go down every road and if you‘re the prosecutor or the defense attorney to find out who is the real deal and who is not.  It is an enormous distraction. 

ABRAMS:  And Mr. Kane, isn‘t it—I mean I would assume that the prosecutors who you know brought these charges and believe that Michael Jackson did this probably want to find him and they‘d like to final other people.  I‘m sure that you know in the Ramsey case you would have liked to have found someone, which supported whatever theory you were pursuing. 

KANE:  Sure.  Anytime you are trying to prove a crime that‘s basically a one-on-one allegation, if you can find evidence that‘s good evidence of other similar acts and show a pattern that helps you present your case.  And, of course, the flipside of that is, is that you have to be very careful because if a jury hears this other evidence and believes that it‘s not true, it feeds right into a defense argument that this is nothing but a big frame-up all around. 

ABRAMS:  And, Mickey, can‘t that help the defense publicly?  I mean let‘s assume for a moment—again, we don‘t know what the deal is with this.  I mean you know, again, there are a lot of questions, let‘s just put it that way, about this particular allegation.  Let‘s just leave it at that.  But can‘t it help the defense to say (UNINTELLIGIBLE) see?  There was this guy and there was that guy...

(CROSSTALK)

ABRAMS:  ... and all these—right? 

SHERMAN:  I think even this initial report has helped the defense.  It shows people how perhaps bogus, you know, these kinds of claims are and how everyone wants to jump on the bandwagon and pile on.  And you know the problem is it‘s not like a late report.  This happened sometime in the ‘80‘s.  You know this person, even if he is somewhat credible, the baggage is just so incredible...

ABRAMS:  He‘s saying that his memory—he‘s saying that you know he went through psychological counseling and he had a revived memory. 

SHERMAN:  No, I don‘t think most people are not going to buy that. 

They think that when someone is sexually assaulted they‘re going to wait 20

·         they‘re not going to wait 20 years before coming forward. 

ABRAMS:  And Mr. Thomas, how do you respond to those who say, look, this is the problem—is that people come forward after the fact and they make claims just in an effort to make money and that‘s probably what these allegations are about as well, meaning these allegations that the prosecution is pursuing. 

THOMAS:  Well they may be, Dan, but the issue is, is that I think both sides are looking for the truth and I think both sides will work very hard to find...

ABRAMS:  No, they‘re not...

(LAUGHTER)

(CROSSTALK)

ABRAMS:  No, they‘re not.  Come on.  They‘re not looking...

THOMAS:  Yes, they do...

ABRAMS:  I mean...

(CROSSTALK)

ABRAMS:  ... the bottom line is the prosecution has a theory here that

they believe in and they are convinced of it and the defense team is also -

·         could be equally convinced in trying to look for ways to avoid the charges. 

SHERMAN:  Both sides are trying to win.  Let‘s be...

ABRAMS:  Yes.

SHERMAN:  Let‘s be real about that.  They want to win. 

ABRAMS:  So, I mean but Mr. Thomas, there is a vetting process, I guess—I mean is that you know that very serious investigation goes in before they‘re going to add someone, for example, to the witness list. 

THOMAS:  Well, especially in this particular case because I believe this very likely is the boy that was looked at by Santa Barbara authorities before and they have chosen at this point not to go forward with that. 

ABRAMS:  Yes.

THOMAS:  So, you know it‘s important that they look and make sure that if they are going to go forward with a victim that it‘s a victim that they believe in. 

ABRAMS:  All right, Michael Kane, Mickey Sherman, Jim Thomas, I was just kidding around with you there.  You know that‘s the way we do it on the show.  Thanks for coming...

(CROSSTALK)

ABRAMS:  All right.  Coming up, she had friends, family and police searching for four days.  Now Wisconsin college student Audrey Seiler faces criminal charges that could put her behind bars. 

Plus, a key part of the Patriot Act being tested in court for the first time in the trial of this guy, a Saudi graduate student who allegedly helped set up Web sites to help Islamic militants recruit followers.  Some saying he shouldn‘t be prosecuted for that.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Now to the case of Audrey Seiler, that University of Wisconsin student accused of staging her own abduction last month.  Today the D.A. in Madison, Wisconsin filed two misdemeanor counts against Seiler, charging her with obstructing officers.  The 20-year-old sophomore disappeared on March 27.  Surveillance video showed her leaving her campus apartment of her own accord.  Four days after she disappeared searchers found her in a marshy area within a mile of her apartment.  She told police a man with a knife was in the area, sparking a major manhunt.  But almost immediately police had questions about her story.  The most damaging detail...

(BEGIN VIDEO CLIP)

NOBLE WRAY, ASSISTANT CHIEF, MADISON P.D.:  Audrey reported that the suspect used duct tape, rope, cold medicine, gum, and knife—and a knife against her.  In the evening hours last night, what we were able to confirm is that the items that Police Officer Kamholz is holding there are items that we were able to get videotape showing Audrey going into a local store, purchasing these items.

(END VIDEO CLIP)

ABRAMS:  But now the criminal complaint provides some new details.  Seiler allegedly involved in what one friend termed an up and down relationship with a boyfriend named Ryan.  A police search showed that three days before her disappearance, someone using Seiler‘s laptop, logged into her boyfriend‘s AOL account and downloaded romantic e-mails exchanged with another woman.  Three days in a row, March 29, 30 and 31, a woman walking a path next to her office saw a woman that she later identified as Seiler sitting alone on the path.  The witness didn‘t see anyone else in the area. 

And when she was found, Seiler told police—quote—“He‘s out there now.  You have got to help me.”  Police noticed her fingernails looked recently painted, unlike someone who had spent the last four days in the woods.  Each of the charges against her carries a possible sentence of nine months and a maximum fine of $10,000. 

To talk about the charges, I‘m joined now by Chris Van Wagner, a former Wisconsin federal prosecutor.  All right, first let me just get your general sense of these charges.  Is she in big trouble here?  Probably jail time or not? 

CHRIS VAN WAGNER, FMR. FEDERAL PROSECUTOR:  I don‘t think so, Dan.  I don‘t think that she‘s looking at any jail time because she‘s a first offender and because there‘s clearly mental health issues, but I‘m not going to rule out a request for it from the D.A.  I just don‘t see a judge giving it to her at this time.

ABRAMS:  I‘m reading now from the criminal complaint here, which is fairly lengthy.  It sounds like she changes her stories again and again.  They even refer to them as new version, old version, this with the dates in them, and you see at one point she says I‘m so stupid, I‘m sorry for all of this.  But it sounds like she‘s still saying that even though she wasn‘t abducted from her dorm room, that she still was either attacked or something by some guy. 

VAN WAGNER:  Well, you know, interestingly enough, Dan, in all of her statements to the police, even though she continued to change, according to the allegations, change what she recalled and even in her statement to this boyfriend, Ryan, she continued to finish with the notion that there was still a bad man out there who had abducted her.  So, she never fully admitted having completely fabricated this.  But she made enough other admissions to make it a pretty damaging complaint against...

ABRAMS:  Seiler then said however, that even though she was now abducted from her apartment, she was abducted later by a bad man who came up to her in a park shortly after she arrived in the park from her apartment.  She went on to say I set up everything.  I‘m just so messed up.  I‘m sorry.  But she went on to say—quote—“Even though I did everything wrong, this guy did wrong, too.”  Does it matter whether the police believe that there was this other guy out there or not? 

VAN WAGNER:  You know, whether they believe there was a guy or not was important to them at the time.  But they—as you know, they were working against the backdrop of having recently had a trial where a woman had been wrongly accused of obstructing by lying.  So they were being very careful.  But, it seems to me that it mattered to them very little after the first interview where she claimed to have had her face duct taped, but they could find no tape residue, no red marks.  And at the end, it really didn‘t matter to them anymore.  It‘s just that they didn‘t have what you might call a complete, clean confession from her, although they had enough to certainly make it clear...

(CROSSTALK)

VAN WAGNER:  Maybe she was referring to the boyfriend, Ryan, as the bad man.  We don‘t know. 

ABRAMS:  That‘s not what I read from this criminal complaint.  But very quickly, if you‘re her lawyer, you try to cut a deal, right? 

VAN WAGNER:  I‘d certainly be talking to them about having her get extensive mental health treatment, trying to make appropriate repayment to the city for costs that they bore that were beyond the normal and hoping to get something out of them that will allow her to come out of this with either a clean record or no jail time or both. 

ABRAMS:  Chris Van Wagner...

VAN WAGNER:  ... what I‘d be doing.

ABRAMS:  ... thanks very much for coming back on the program. 

Appreciate it.

VAN WAGNER:  Thanks for having me, Dan. 

ABRAMS:  Coming up—African American men have been targeted by police in Charlottesville, Virginia, asked to give up some DNA in an attempt to find a serial rapist.  Police say they would do the same thing to white men if the suspect was white.  But some residents are up in arms.  We‘ll talk to both sides. 

Federal prosecutors say a 34-year-old Saudi graduate student provided material support, expert advice to Islamic militants by setting up recruiting Web sites.  It is the first case prosecuted under this portion of the Patriot Act.  It sure seems to make sense, so why are some saying the case should be thrown out?

(COMMERCIAL BREAK)

ABRAMS:  Police in Charlottesville, Virginia are doing everything they can to catch a serial rapist linked to at least six attacks in the area since 1997.  The suspect, believed to be a black male and so Charlottesville police have been conducting DNA testing—that‘s the sketch—of hundreds of black men to try to find a match.  Police say they‘re only testing men with a record of sex crimes or burglaries or other people identified by tips from the public or 911 calls, but some say even that amounts to nothing more than racial profiling. 

They claim innocent men are being harassed by the police because of their race.  Joining me now, the chief of police for Charlottesville, Virginia, Timothy Longo, who is leading the police investigation for the rapist and Rick Turner, dean of African American Affairs at the University of Virginia, who has said that this sort of action borders on harassment and a violation of civil rights.  Thank you both for coming on the program.  Appreciate it. 

All right, Chief, let me start with you. 

(CROSSTALK)

ABRAMS:  What is the defense of what you‘re doing? 

CHIEF TIMOTHY LONGO, CHARLOTTESVILLE POLICE DEPT.:  I think what we‘re trying to accomplish here is to identify the suspect who is responsible for these crimes, using every legitimate, you know law enforcement practice that we have.  Interestingly enough in this case, we‘re looking for a black male subject and what we‘re looking for is not just a black male subject, but a black male subject that has come to our attention through one of many ways, whether it be a call to the police through the 911 system, a call to our Crime Stoppers telephone number or a call directly into the police or perhaps information that we extract from our records management system of individuals that have been involved in crimes such as sex crimes, peeping tom, trespass, criminal burglary and then using the acquisition of a buccal swab to compare DNA from those persons to the DNA that we‘ve recovered from at least...

ABRAMS:  Are you using the sketch at all?  For example, if someone is very overweight and is also a black male with a criminal history as saying, you know what?  This guy doesn‘t look anything like the sketch and, as a result, we‘re not going to even pursue him. 

LONGO:  You know the sketch is a very large part in encouraging people to call and to report a certain individual.  In fact, of the 290-some persons that could have been the subject of a buccal swab acquisition, we‘ve actually gotten about 187 buccal swabs.  A large percentage of them were people who just called and said you know what?  This guy, Tim Longo, he looks like this composite.  You need to investigate.  The police officers will then, in this case investigators, not only use the composite, but hopefully other factors to determine whether this person is a viable candidate to be approached and to give a voluntary buccal swab sample. 

ABRAMS:  So Dean Turner, what is the problem? 

M. RICK TURNER, DEAN OF AFRICAN AMERICAN AFFAIRS, UVA:  Well, the problem is many of the young men, particularly African American students, don‘t fit the description.  Many men have claimed that they have been stopped because of various reasons, but not because—primarily they have been stopped because they were black and they don‘t fit the description.  Many of the folks think that it‘s been bordering on harassment.  It‘s been a disruption to our community.  And as I‘ve said on many occasions, that it might be legal, but it‘s not right.  It‘s been a major distraction to African American students—African American male students living in fear because of the fact that they might be stopped at any particular time. 

ABRAMS:  Fear that they‘re going to be asked to give a DNA sample? 

TURNER:  Fear that they might be stopped without any particular reason, fear that they might be harassed, fear that they might be intimidated.  There‘s just a natural fear when you are stopped by a policeman anywhere.  And so that fear is rampant in the history of the police and African American relations. 

ABRAMS:  Dean Turner, when Louisiana—they were looking for a serial killer there and I remember supporting their efforts, stopping white men.  They took 1,200 DNA samples at the time from white men in an effort to find a serial killer.  Do you distinguish this from that, or is this basically the same thing and you would have had a problem with that as well? 

TURNER:  I would have—I have a problem with stopping African American men because of the fact that they‘re African American men.  And I don‘t really think that they‘ve been stopped because of—they fit a description.  I think that it‘s been random.  It‘s been upsetting to the community and most of the folks that have been stopped, you know, without any particular reason I feel. 

ABRAMS:  Chief Longo, what do you make of that? 

LONGO:  Well, I can tell you what‘s come out of this discussion, and Dean Turner and I have had this discussion as recent as Monday night and again today and I think, you know, my responsibility is to balance the issues that Dean Turner has raised and the individual rights of the citizen who live here in this community against a legitimate purpose of we have been policing and that is in this case to collect—or rather identify a serial rapist. 

ABRAMS:  Yes.

LONGO:  He‘s very violent in our community.  If I can do that in such a way that I address the concerns that have been raised by these students, by Dean Turner, by a larger community and at the same time accomplish my mission, I think that‘s the direction that we need to head.  And I‘m looking at our process.  I have a willingness and an open mind to reengineer what we do and how we do it to get to the concerns that have been raised, but absolutely I have a responsibility to this community to protect its citizens.  I think we can reach a common ground and Dean Turner, other members of the university, community and our broader community...

ABRAMS:  Yes.

LONGO:  ... are working as the days go on to accomplish that.

ABRAMS:  Because this seems to me to be you know a much more civilized system and I‘m going to let you get the final word, Dean Turner.  But you know again, I‘m comparing it to the Louisiana case where the community—where basically the police there were threatening to ruin people‘s names, allegedly, by giving them to the media if they didn‘t give a sample.  You know is it that bad or, Dean Turner, it sounds like you may think that there is a workable system here with the chief. 

TURNER:  Well, you know, I‘m hopeful.  I‘m hopeful that we can work something out.  You know, if you compare this to the Louisiana case, this is not as bad as that Louisiana case.  You know, one of the things that we‘ve been able to do is to sit down and hopefully come up with a plan. 

ABRAMS:  Yes. 

TURNER:  I think that the community is hopeful.  The community has a lot of respect for Chief Longo and I think it‘s a matter of time, a matter of sitting down together with community leaders and students and I think that we can work out a plan where another—a different method can be used. 

ABRAMS:  And I have to tell you, I really appreciate the fact that it sounds like both of you are not just sort of taking a hard-line position which is (UNINTELLIGIBLE) you know we‘ve got to do what we‘ve got to do.  The police saying on the other hand, the community members saying you know what, forget it.  It sounds like there‘s a very good attitude over there and it sounds like you‘re going to be able to work something out.  And we appreciate both...

TURNER:  It‘s a different community. 

ABRAMS:  Thanks a lot for coming on the program. 

(CROSSTALK)

ABRAMS:  Appreciate it. 

LONGO:  Thank you. 

ABRAMS:  A Saudi graduate student faces charges linked to a key part of the Patriot Act, providing expert advice to terrorists for helping to set up Web sites for Islamic militants.  Sounds like a fair prosecution, but some critics say it punishes people unfairly.  We‘ll debate.

(COMMERCIAL BREAK)  

ABRAMS:  It‘s being called the first real test of the Patriot Act.  The Saudi Arabian graduate student at the University of Idaho on trial, charged with three counts of supporting terrorism.  Police say 34-year-old Sami Omar Al-Hussayen set up Web sites to help Islamic militants recruit followers.  He‘s charged under a provision of the Patriot Act, which bars giving expert advice or assistance to terror groups. 

Another California judge found the law to be too vague.  But is it really?  To debate, I‘m joined by Ted Simon, prominent criminal defense attorney in Philadelphia and Aitan Goelman, a former federal prosecutor.  All right, Ted, look, we‘ve talked about this issue a lot, but what is the problem?  I mean expert advice, it seems pretty straightforward. 

THEODORE SIMON, CRIMINAL DEFENSE ATTORNEY:  Well, that‘s the question.  The Patriot Act has enlarged or expanded the definition of material support to include expert advice for assistance without requiring the specific intent to commit the unlawful behavior of the organization or some other individual...

ABRAMS:  So what?

SIMON:  ... or some other crime. 

ABRAMS:  You‘re providing advice to a terrorist group...

SIMON:  Well, I guess you would say that to Judge Collins who has held that part of the statute unconstitutional...

ABRAMS:  I would. 

SIMON:  ... as being too vague.  She‘s previously been affirmed on appeal when she held the personnel and training aspects...

ABRAMS:  Yes.

SIMON:  ... under the prior statute, also too vague.

ABRAMS:  But Aitan...

SIMON:  So the question really is this—are you going to put people on proper notice that their behavior is unlawful? By criminalizing this conduct, you will bring in the unwary and ensnare the innocent.  For example...

ABRAMS:  Is this the case—don‘t give me an example.  Let‘s talk about this case. 

SIMON:  All right.

ABRAMS:  This is a guy that‘s accused of helping to builds Web sites to help recruit Islamic militants. 

SIMON:  Well I think the allegation is he helped—from what I read in the paper—he helped to build Web sites and he claims he is not responsible for the message.  Other people put the message in.  So that would mean if you start a newspaper and someone else puts in an ad in it, the newspaper is also going to be responsible. 

ABRAMS:  Yes, but wait a second.  Aitan, there‘s no way—they can‘t just prosecute him saying you know what?  Just put up a blank Web site.  They put up whatever they wanted.  They wouldn‘t be prosecuting him, right? 

AITAN GOELMAN, FORMER FEDERAL PROSECUTOR:  I don‘t think so, Dan.  I mean I think this statute does what it says it does and it purports to bar material support or assistance to groups that on the State Department list of foreign terror organizations.  I mean if you, you know, support Hamas, you can go out in the street and say Hamas is great, I think suicide bombings are legitimate.  But once you cross the line into giving material support and there are certain kinds of material support that are delineated in the statute, you‘ve gone over and you‘re actually aiding the terrorists.  I mean I think that what we—what the 9/11 commission meeting now shows is that law enforcement officials needs more tools and not less. 

SIMON:  Well, there‘s no problem with prosecuting terrorists and that all the tools should be employed.  The question is whether or not you‘re going to prosecute individuals, even though there‘s no requirement of a specific criminal intent to commit an act.  So, therefore, you‘re going to unfortunately, and in some cases, you will bring in or potentially bring in those that really did nothing other than assist and the law has long been that merely assisting or merely participating or merely having knowledge is insufficient to really commit a criminal act and that is the problem.  It‘s not to say terrorists or those that help terrorists should not be prosecuted.  The question is whether or not we can come up with statutes that will put people properly on notice...

ABRAMS:  Wait.  You‘re saying, Ted, that you shouldn‘t be able to prosecute people just because they assist terrorists, right? 

SIMON:  No.  What I‘m saying is the law has been mere knowledge of something or even assisting, you have to have a shared criminal intent.  The mens rea...

ABRAMS:  OK...

SIMON:  ... to do the unlawful act. 

(CROSSTALK)

SIMON:  So what I‘m saying is in the sense—in the case of the Web site, if the person just puts up a Web site and is not sharing in the unlawful activity of the...

ABRAMS:  But you still have to have known that it was—all you have to know is that it was a Web site for this group.  And if this group is on the State Department list, Aitan, then that‘s it.  That‘s the crime.  It‘s fairly simple.

GOELMAN:  I think it is.  I mean and you know, Hamas is a good example.  Hamas does things like sending people into, you know, civilian buses and supermarkets and blowing themselves up and killing innocent men, women and children.  But they also run hospitals and schools.  So you can have someone who says well, I knew I was giving to Hamas, but you know I was trying to give to their charitable function.  I wasn‘t trying to support terrorism, so I‘m innocent.  The problem with that is that money is fungible and you have these groups that you know do more than one thing.  They‘re both terrorist organizations and charitable organizations.  You don‘t get to choose, well, I want to support Hamas‘ nice functions and not Hamas‘ murderous function. 

ABRAMS:  Ted.

SIMON:  Yes and of course, everyone can sympathize with that, but historically in the past when it came up in the Supreme Court in various cases having to do with communist organizations and the like, they realize some organizations have legitimate goals and some have illegitimate...

ABRAMS:  Yes.

SIMON:  ... and required to defend it to at least participate in the illegitimate...

ABRAMS:  Bottom line, Ted, I‘m out of time, but do you think this is going to get struck down?  I mean you think that this case, for example, as a conviction, it won‘t hold up? 

SIMON:  Well I can‘t—it looks to me that it probably lost in the pretrial phase.  That‘s why...

ABRAMS:  Yes.

SIMON:  ... he‘s going to trial and a jury, so who knows what‘s going to happen. 

ABRAMS:  Ted Simon, Aitan Goelman, thanks a lot.

GOELMAN:  Thanks Dan.

ABRAMS:  It was my “Closing Argument” last week—why the politics should be taken out of the 9-11 commission.  Never did I think I would be defending the commission‘s work already from partisan attacks.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, I defend the 9/11 commission from partisan attacks and its report isn‘t even out yet.  Plus your e-mails too.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—who would have thought I would have to defend the 9/11 commission already from partisan attacks.  I said repeatedly that in an effort to take the politics out of 9/11, I would support the commission‘s unanimous report no matter what it says, no matter who takes the heat.  After all the Republicans appointed five, the Democrats appointed five and those 10 will have had assess to thousands of interviews and highly classified material that the rest of us don‘t.

I figured the hard-core partisans of one party or another, if not both, would complain about the commission‘s report, but I didn‘t expect it would start so soon.  I didn‘t know which side it would come from, but we have learned it is now coming from a few on the right.  “The Wall Street Journal” has maligned the motives of the commission.  Today‘s “New York Post” headline, “Partisan Politics Over Truth, National Disgrace”.  A handful of prominent conservative Web sites have joined in and the Fox News channel has done segments following up on the allegations from those publications and sites. 

They all site Richard Ben-Veniste, the Democrat who‘s been toughest on members of the Bush administration.  But let‘s assume for a minute he is partisan.  Let‘s assume he‘s been unfair.  That says nothing about the findings of the 10-person commission.  So far this bipartisan commission has been unanimous in all of its findings and requests.  And its final report is expected to be as well.  If it‘s not, then I would expect the floodgates of criticism to open.  But until then, if they want to criticize individual commissioners, questions or style, go ahead, say it. 

But don‘t attack the entire commission whose Republicans are and will be just as influential as the Democrats if they‘re unanimous.  Is the allegation that the Republicans on the commission are suddenly shifting party allegiance and playing politics as well?  This commission will undoubtedly make some findings that will make some politicians or their advisers very unhappy.  But sometimes the truth hurts, and those of us who just want the truth and not the political mudslinging will defend this commission. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  9/11 commission hearing is still the leading topic.  George S. Louis from Alcone (ph), California.  “Everybody from Condoleezza Rice to President Bush states that they only thought an airplane hijacking would be to hold hostages to get prisoners released.  They should have prevented hijackings for all purposes.”

From Sun City Center, Florida Gene Kannee.  “Ashcroft said that the funding for the FBI was slashed during the previous administration.  What he didn‘t say was that Congress appropriates and the president spends.  During the Clinton administration the Republicans controlled the Congress and Ashcroft was part of the Congress as a senator.”

Corin Olson from Minneapolis, Minnesota.  “Why do we keep hearing about the mistakes the FBI and CIA made and not the NSA?  The National Security Administration is directly responsible for national security, aren‘t they?”

And my “Closing Argument” last night, the New York State judicial panel should consider suspending New York Supreme Court Justice Donna Mills, who refused a sobriety test after being arrested for DUI, then claimed she was being arrested for her race, although her drinking companion testified Justice Mills had been drinking scotch for hours.  She was found not guilty by a all minority jury.  I said a not guilty verdict should not necessarily mean she‘s free and clear, as is the case with lawyers, police officers and anyone else connected to law enforcement. 

Mohindra Rupram says, “While I agree that justice was not served in the drunk judge case, your suggestion that the Judiciary Panel should punish her is absurd. She has been acquitted of the crime. Although the judge deserves to be punished, the rights and freedoms of all Americans must be preserved.”  

You know Mohindra, you made a mistake about our justice system that I‘ve long found so frustrating.  The burden of proof in a criminal case is so high because the government has the power to take away someone‘s freedom.  Once that power is no longer on the table, organizations such as bar associations, police unions can still determine that it‘s not someone they want to sanction. 

Moving on.  Some of you have noticed that recently I‘ve sounded...

(COUGH)

ABRAMS:  ... a little sick, and e-mailed with your suggestions.  That was actually an opportunity to get out a cough I‘ve been holding in.  Here‘s one from Erin Kitty Partrick from New Smyrna Beach, Florida.  “I heard you cough the other night on your show.  Here‘s what I am telling you.  Drink apple cider, not apple juice, real cider.  It is good for sore throats and colds.” 

So just real cider (UNINTELLIGIBLE) Kitty?  All right, thank you. 

And finally, 15-year-old David Armendariz from Azusa, California has a problem.  “Your show is awesome.  I‘m only 15 and I just got in trouble at school.  My school ends at 3:00 p.m. and since I‘m in Pacific Time, your show is on at 3:00 p.m.  The real problem is now I‘m in detention for a couple of weeks and can‘t watch you at all because I don‘t get home until 4:00.”

If you‘d like to add your name to the free David Armendariz petition, please write to—no, I‘m just kidding.  David, I‘m sorry.  I guess you‘re learning what justice can mean.  We look forward to you getting back and serving your time. 

Your e-mails abramsreport—one word -- @msnbc.com.  We‘ll go through them at the end of the show.  Please include your name and where you are writing from.

That‘s it for the program tonight.  I will see you tomorrow.

END 

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