updated 4/29/2004 10:17:32 AM ET 2004-04-29T14:17:32

Guests:  Bradford Berenson, Jonathan Frieman, Karen Russell, Norm Early, Maria Suarez, Andres Bustamante, Jan Ting, Chip Babcock

DAN ABRAMS, HOST:  Coming up at the U.S. Supreme Court today, a huge case at issue.  Can a U.S. citizen suspected of terrorism be denied access to the courts? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Two U.S. citizens, one arrested at home, the other in Afghanistan, now fighting to get their day in court.  But in a time of war, can some U.S. citizens be held indefinitely without even getting to see a lawyer? 

Kobe Bryant back in court.  The battle over an audiotaped interview of Bryant hours after the alleged rape.  Bryant‘s lawyers say the cops didn‘t play fair and now want that tape kept out of the trial. 

Crash scene photos of Princess Diana shown on national television.  Now the father of Diana‘s boyfriend, Dodi Fayed, is suing CBS for airing the photos.  But on what grounds? 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  Today the U.S. Supreme Court considered a pretty simple question.  Can the U.S. government hold U.S. citizens suspected of terrorism without giving them access to the courts? 

NBC‘s Tracie Potts has the story.

(BEGIN VIDEOTAPE)

TRACIE POTTS, NBC NEWS CORRESPONDENT (voice-over):  Yaser Hamdi, a U.S. citizen surrendered on the battlefield in Afghanistan.  The government claimed he trained with the Taliban just before September 11.

FRANK DUNHAM, LAWYER FOR YASER HAMDI:  We‘re talking about a man that‘s now been locked up in solitary confinement for over two years with no charge, no lawyer, no ability to respond to say that he‘s innocent. 

POTTS:  Jose Padilla was seized in his hometown of Chicago at the airport.  The government claims he was just back from Pakistan, meeting with high-ranking al Qaeda members, planning to detonate a dirty bomb in the U.S.

JENNIFER MARTINEZ, LAWYER FOR JOSE PADILLA:  Whatever Mr. Padilla did, this is still this America.  He‘s entitled to be charged with a crime and to have his day in court. 

POTTS:  Both are now being held indefinitely at this Navy brig in South Carolina.  The government argues that Congress has given the president broad discretion to detain enemy combatants, even Americans, indefinitely in times of war.

VOICE OF PAUL CLEMENT, DEPUTY SOLICITOR GENERAL:  When somebody goes abroad, associates with the enemy, takes weapons training or explosives training with the enemy and then returns to the United States with the intent to commit hostile and war-like acts at the direction of the enemy and the military has authority over that individual.

POTTS:  Justice Ruth Bader Ginsberg questioned holding Americans without a hearing. 

VOICE OF HON. RUTH BADER GINSBERG, SUPREME COURT JUSTICE:  Doesn‘t he have a right to bring (UNINTELLIGIBLE) forth some tribunal himself?  His own words? 

POTTS:  But Justice Antonin Scalia said it‘s unreasonable to haul in witnesses from a war zone.

VOICE OF HON. ANTONIN SCALIA, SUPREME COURT JUSTICE:  You want them to run down the members of the Afghan allies who captured this man and get them to testify in a proceeding? 

POTTS:  The court is now challenged with balancing civil rights and national security. 

Tracie Potts, NBC News, Washington. 

(END VIDEOTAPE)

ABRAMS:  My take?  While I do think even U.S. citizens captured in the battlefield or abroad can probably be held as—quote—“enemy combatants” and maybe even denied access to the court, it‘s a different situation when U.S. citizens are captured in the U.S. I mean denying someone like Jose Padilla access to almost any of the protections of the criminal justice system seems a little scary. 

Joining me now to discuss this his attorney, Brad Berenson, who was an associate White House counsel until 2003 and has filed a friend of the court brief in this case taking the government‘s side and attorney Jonathan Frieman, who serves as co-counsel for Jose Padilla.

Mr. Berenson, what do you make of my position that maybe—look, that we have to make certain exceptions.  We have to understand that at times of war things are different.  But when you‘re talking about a U.S. citizen on U.S. soil, maybe that‘s going a little bit too far. 

BRADFORD BERENSON, FMR. ASSOCIATE WHITE HOUSE COUNSEL:  Well obviously the situation of a U.S. citizen on U.S. soil is more sensitive and fits less into the conventional model of an enemy combatant than most of us are accustomed to thinking about.  But you have to remember that the attacks of 9/11 were attacks that occurred on U.S. soil, and it‘s far from unprecedented for dealing with U.S. citizens under military law when they‘re capture on U.S. soil.  That‘s exactly what happened in the Querin (ph) case involving the German saboteurs during World War II and of course Abraham Lincoln took tens of thousands of American citizens prisoner pursuant to his commander-in-chief powers during the Civil War on U.S.  soil.

ABRAMS:  But in a lot of the cases that are serving as precedent, they ultimately were taken in front of military commissions or some sort of body, right?  I mean the problem here is that these guys are just sitting there.  They‘re not getting access to any hearings, be it military commission or in a regular trial. 

BERENSON:  It‘s true that the Qeurin (ph) case arose after military commission proceedings had occurred. 

ABRAMS:  Yes.

BERENSON:  But in the civil war, there were no military commissions for a large number of the people who were detained and you don‘t necessarily have to charge someone with a war crime in order to hold them pursuant to the laws of war.  And in fact, being charged and being brought before a military commission is generally seen as a worse thing than being simply detained until the end of hostilities.  After all, the Querin (ph) saboteurs were all executed...

ABRAMS:  Yes.

BERENSON:  ... within three months of being captured.

ABRAMS:  But you‘d agree in this particular case, it‘s probably better to get anything rather than having to wait until the end of the fighting, correct?  Because...

BERENSON:  Well...

ABRAMS:  ... there may not...

BERENSON:  ... I‘m not so sure.  I‘m not so sure.  If Padilla were charged with war crimes based on his activities with al Qaeda, he might be eligible for a death sentence and that could easily be imposed and carried out. 

ABRAMS:  Yes.  Mr. Frieman, what do you make of these arguments? 

JONATHAN FRIEMAN, CO-COUNSEL FOR JOSE PADILLA:  The government lawyers today are claiming that the president has this unlimited power to lock up Americans anywhere at anytime simply because he labels them enemy combatants.  This isn‘t about Jose Padilla.  It‘s about all Americans.  It‘s about an extraordinary power that, contrary to Mr. Berenson‘s comments, no court has ever approved.  It‘s contrary to our Constitution.  It‘s contrary to our history.  It‘s contrary to the very idea of this nation that the founding fathers had.

ABRAMS:  You know look, I have a sympathy for your position in this case because I think that with regard to Jose Padilla, it seems every day that the evidence seems a little bit weaker and a little bit weaker and yet there have been cases brought against Moussaoui and some of these others.  But, for example, in the case of Yaser Hamdi, captured abroad, fighting abroad.  You know that seems to me to be a kind of classic case where you can call him an enemy combatant and say I‘m sorry, you‘re fighting in the war, you‘re going to be treated like someone who‘s fighting in war. 

FRIEMAN:  Well there‘s clearly a difference between the Hamdi case and the Padilla case.  Padilla was apprehended at O‘Hare Airport.  He was in a civilian setting.  He was carrying no weapons whatsoever and he was just plucked off the airport tarmac essentially and thrown into a hole where he sat for two years now, with no access to court, with no ability to see his lawyer until the government decided they wanted to give him a few minutes a month ago on the eve of filing their briefs.  This is completely contrary to our constitutional history.

ABRAMS:  Mr. Berenson, what makes me uncomfortable is the fact that they seem to be picking and choosing the cases where maybe they can make the case in court like Moussaoui and John Walker Lindh and then the cases where maybe they don‘t have a lot of evidence, they say you know what, we‘re just going to lock him up and call him an enemy combatant and hold him there. 

BERENSON:  Well I don‘t think that‘s the dividing line between these cases.  It‘s certainly true that the administration has elected to deal with some people under military law and to charge some people conventionally in the criminal justice system.  But that really is an executive branch determination, which is driven off of a variety of very sensitive considerations about intelligence value, threat, danger, the nature and quality of the evidence.  There are some people against whom we have very considerable intelligence evidence, none of which would be suitable for presentation in a courtroom.  They may be no less guilty than a person who could be charged in a criminal courtroom, but it just may not be a suitable criminal case.  And arguably you could say the Moussaoui case points out some of the perils there. 

ABRAMS:  Is there any check?  I mean it sounds like the administration...

BERENSON:  Yes.

ABRAMS:  ... can then say, you know what?  Any U.S. citizen who we believe might be involved in terrorism is going to get locked away without any access to a court, a hearing, anything to determine whether it‘s true. 

BERENSON:  No.  That‘s really a completely overblown specter.  There are substantial checks both internal to the executive branch and through the judiciary that exist and that the administration acknowledges must exist.  There‘s a very, very careful process that‘s gone through of screening these detainees, formal opinions by the attorney general, formal recommendations by the intelligence community and the secretary of defense, and then on top of that, once the determination is made, the administration acknowledges that there is a right of access to the federal courts through habeas corpus and the debate is really only over what the scope of those habeas proceedings should be.  That is, how close to a full-blown trial that should be...

ABRAMS:  I don‘t know...

BERENSON:  ... or whether it should just be a check on arbitrary action by the executive through a review of the executive‘s evidence. 

ABRAMS:  I think you‘re—I think—maybe I overstated a lot.  You‘re overstating the level of checks in this case.  I mean the bottom line is you can talk about habeas corpus.  The reality is that this guy can‘t even meet with his lawyer.  And I think—Mr. Frieman, do you want to respond to that? 

FRIEMAN:  There are no legally significant checks here whatsoever.  To begin with, everything that Mr. Berenson describes is an internal process.  It‘s what happens within the halls of the executive branch.  Judges have nothing to do wit and Congress has nothing to do with it.  It‘s all about the president‘s various minions writing memos to each other.  That is not the kind of check that the Constitution has in mind.  And as to the notion that it‘s just a question of whether it‘s a full blown hearing or not, it‘s important to be clear about precisely what the president‘s position is here.  The president‘s position is that all that he needs to do is have some mid level bureaucrat from the Department of Defense put together an affidavit of a few paragraphs saying that we think this guy is an enemy...

ABRAMS:  Yes.

FRIEMAN:  ... drop that in court and that‘s it, game over.  He‘s in jail forever. 

ABRAMS:  I expect that the court is going to demand some level of checking here.  And I think they may distinguish between the case of Padilla, who‘s arrested in the United States and the case of Hamdi who‘s arrested abroad. 

Bradford Berenson and Jonathan Frieman, thanks a lot more taking the time. 

FRIEMAN:  Thank you.

BERENSON:  You‘re welcome. 

ABRAMS:  Coming up, Spain charges a Moroccan man connected to the Madrid bombings with a new crime—helping to plot the 9/11 attacks.  Where is he and why is he just being linked to the attacks now? 

In the Kobe Bryant case, the defense team loses round one in the effort to prevent prosecutors from calling the alleged victim a victim. 

And the father of Princess Diana‘s boyfriend, Dodi Al-Fayed, sues CBS over crash-scene photos of Princess Diana, claiming emotional distress.  But there were no pictures of his son shown and even if there were, would he have any case?

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Spain charges a Moroccan man linked to the Madrid bombings with—get this—helping to plot the 9/11 attacks.  He is still on the run.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  In the war on terror, a Moroccan man wanted in connection with last month‘s train bombing in Spain that killed almost 200 people has now been indicted by a Spanish judge on—get this—charges that he helped plot 9/11.  Amer Azizi is believed to have been the right hand man for one of the leaders of an al Qaeda cell based in Spain.  That cell allegedly providing financing and logistics for the 9/11 planners.

The same judge charged with him belonging to a terrorist organization last year, but the new indictment links him specifically to the attacks on the World Trade Center and the Pentagon.  He claims Azizi was involved in an al Qaeda that took place in Spain in July of 2001.  Azizi allegedly provided lodging for people who attended the meeting and acted as some sort of messenger for them. 

The judge also says Azizi recruited terrorists and sent them to Afghanistan for training in bin Laden‘s camps before 9/11.  So why is he just being linked to 9/11 now?  What was his role?

Joining me now, terrorism expert and MSNBC analyst Steve Emerson.  Now Steve look, you follow these guys.  You know who they are and their connections.  Did you know that Azizi was likely linked to 9/11 before this? 

STEVE EMERSON, TERRORISM EXPERT:  Well, Azizi was actually named in a Spanish document that was issued in October of 2001 in which he was named along with dozens of other Islamic militants operating in Spain with connections to Morocco, Turkey, Iran, Afghanistan, naming them as particular people involved or circling around Mohamed Atta, the man who was the ringleader of 9/11, as well as other people connected to 9/11 including Zircon (ph).  So the question is, why did it take so long?  A good question.  You know Dan, there‘s always a lag time between intelligence gathering and the indictment because that has to be submitted to court and approved.

ABRAMS:  This guy is still on the run, right? 

EMERSON:  Absolutely.  And in fact, one of the most interesting and sad aspects is that he was watched for years and identified, again, by Spanish police in—and intelligence in October of 2001.  And yet, he was able to elude them and still continued to plot the Madrid bombings, which, of course was the impetus for reinvestigating his ties and they discovered now lo and behold, not only did he do Madrid, but he was actually one of the main people who enabled the—that famous meeting in Spain in the summer of 2001 that finalized plans for the 9/11 attack. 

ABRAMS:  So the Spanish authorities were watching him?  I mean why didn‘t they go in and get him? 

EMERSON:  Well, again, they had been watching him before 9/11.  Because as the Germans were, as the French were, and as even the U.S.  government was sort of watching...

ABRAMS:  When you say watching, Steve, do you mean literally watching?  Or had his name out there and were looking for him?  Or did they literally have him in their sights? 

EMERSON:  Well, the most complete form of watching would be 24-hour a day surveillance and that was certainly not what they were doing.  Sort of keeping tabs, making sure they knew where he was, getting intelligence reports.  Perhaps there were wires on his phone.  Not necessarily was he the most important or politically—or necessarily the most dangerous person in their eyes.  Now after 9/11 he was named, along with dozens of other people—the problem for Spanish police and intelligence was they were thoroughly overwhelmed with all of this intelligence and there was no way for them to actually issue any indictment.  Because let‘s say you have a phone number of somebody who called Mohamed Atta 10 times.  Does that make him somebody who you could indict?  No.  In this case, it turned out that he was somebody who participated in 9/11.  Also coming from detentions in Guantanamo where people finally said hey, we were with this guy, he was part of the plot.

ABRAMS:  Wow.  Steve Emerson, thanks a lot. 

EMERSON:  You‘re welcome.

ABRAMS:  Coming up, a fight over the “V” word—victim—in the Kobe Bryant case.  The defense argued that calling Kobe Bryant‘s rape accuser a victim taints the jury.  The judge ruled. 

Plus, as an underage teen immigrant, she was abducted and sold as a sex slave, then sent to prison for 22 years in connection with the murder of her captor.  Now she‘s being released.  But because of her felony conviction, she‘s probably going to get deported.  Shouldn‘t an exception be made here?

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Now to the Kobe Bryant case.  We‘ve got some news to report from there.  Final day of a major three-day hearing is wrapping up.  Much of the testimony centering on the alleged victim‘s sexual history.  Much of it behind closed doors.  It‘s all a defense effort to have some of that information admitted at trial. 

NBC‘s Jennifer London is outside the Eagle County Courthouse.  So, Jennifer, I understand there has been a date finally set for an arraignment in this case.

JENNIFER LONDON, NBC NEWS CORRESPONDENT:  Dan, you are correct.  According to a court official here in Eagle, Colorado, Kobe Bryant will be arraigned on May 10.  This coming on the heels of a very impassioned plea by her attorney, John Clune.  You may recall a couple of weeks ago her attorney and the prosecution filed a motion asking the court to set a trial date.  They want to get this thing moving. 

Today when court finally opened for the first time in three days, we heard from her attorney, John Clune, explaining the catalyst for filing this motion.  He tells this story of when she testified before the court in a closed session on March 24.  When she was done testifying, she left when court was over.  Kobe Bryant jumped on his private chartered jet, flew back to L.A., made a basketball game. 

Meanwhile, she, according to her attorney, goes to dinner and is harassed to the point where she hides behind a plant and is hysterical, calls him up saying I‘m scared for my life.  Her attorney saying OK, this is not good.  We need to set a trial date.  The judge hearing this says that the accuser‘s safety is very important.  The judge even saying that he would have Mr. Bryant arraigned today if it was not for the need to allow the media time to file a request for expanded media coverage.  So Dan, that is the big news we are just...

ABRAMS:  All right.

LONDON:  ... getting from Eagle, Colorado. 

ABRAMS:  All right, so now that there‘s been a date for this arraignment, some of these hearings, though, are crucial hearings as to what evidence will or won‘t be coming into trial.  What do we know about what happened today or in the last couple of days?

LONDON:  Dan, you‘re right.  The motions hearings that have been going on over the past three days, critical to what evidence will be admitted once this case goes to trial.  We do know the suppression hearing—that is the hearing to toss out evidence and statements made by Bryant, the defense saying look, the statements made by Bryant thrown out because he was not read his rights and the T-shirt that he was wearing, which was collected by detectives, was illegally obtained.  That suppression hearing did conclude today the rape shield hearing, which was also a defense motion to allow the accuser‘s sexual history into court that did not conclude over the past three days.  And that hearing will resume in the second week of May—May 10, 11...

ABRAMS:  All right.

LONDON:  ... and 12 -- Dan.

ABRAMS:  All right, Jennifer London, thanks a lot for that. 

Appreciate it. 

One of the other issues that this judge is considering is whether the alleged victim is a—quote—“victim” under Colorado law.  The defense angry with the prosecution for calling her victim in court papers, saying the language could prejudice potential jurors against Bryant.  Judge Terry Ruckriegel in today‘s court order said that in essence it can‘t wait until the end of the trial to give her any—quote—“victims‘ rights”. 

Quote—“To adopt the conclusion that the statutory rights are inapplicable until such a time as a jury verdict is reached would deprive an alleged sexual assault victim of a substantial number of rights.”

So the judge not buying the defense argument yet, but giving them another chance to make their case in the future.  Also remember, under Colorado law victims have certain rights including access to a compensation fund specifically set up for crime victims.  My take, as I will lay out later in my “Closing Argument”, the prosecutors should be able to call her a victim and defense attorneys should be able to call her accuser and say that the allegations are false. 

Joining me now, former Denver district attorney and MSNBC analyst Norm Early and defense attorney Karen Russell, who‘s also the daughter of NBA legend Bill Russell. 

All right, Karen, what‘s the matter?  Do you disagree with this judge‘s ruling saying, you know look, you‘re going to say that she can‘t be called a victim, she can‘t get any of the benefits that victims are entitled to until the end of the trial? 

KAREN RUSSELL, TRIAL ATTORNEY:  No.  I think what the defense is saying is that Kobe Bryant has this constitutional presumption of innocence and that by labeling her a victim, it rubs up against that constitutional right... 

ABRAMS:  It‘s the prosecutors labeling it.  It‘s the prosecutors. 

They‘ve already...

(CROSSTALK)

ABRAMS:  ... said that they believe he‘s guilty. 

RUSSELL:  Yes, and there is this thing called the constitution that Kobe‘s...

ABRAMS:  But they—but no one is talking about ruling that she‘s a victim.  All they‘re saying is that the prosecutors who have made it clear they believe that he‘s guilty are referring to her as the victim.  What‘s the big deal? 

RUSSELL:  No.  The big deal is—I mean I think some people think it‘s just semantics and what difference does it make, but I think this is also reflective of what the defense sees as this sort of victim‘s—victim offensive, that they—the victim‘s—the alleged victim‘s side is going on this P.R. campaign to paint her as the ultimate victim. 

ABRAMS:  Yes.

RUSSELL:  And I think that‘s the part of this with the letter and the mother going to the victims‘ rally and they think that if people who are in the jury pool think of her as victim, victim, victim, when it comes to judge Kobe Bryant that it‘s the same as just calling Kobe Bryant rapist, rapist, rapist. 

ABRAMS:  See, you know, look—Norm, I think that that‘s kind of nonsense.  I think the prosecutors can take a position in this case.  But let me ask you this—what if she is—what if Kobe Bryant is found to be not guilty by a jury?  Does she then have to give back anything that she‘s received from the victim‘s compensation fund? 

NORM EARLY, FMR. DENVER DISTRICT ATTORNEY:  No, she doesn‘t have to give it back.  Because you and I both know that there‘s a difference between found not guilty and whether or not an act was committed.  In this case dealing with the victim, we‘re dealing with two things.  One, her statutory rights, which are accorded every single victim in the state, the right to be present, heard and informed, as well as a right to be treated with dignity and respect, as well as the right to be free from intimidation and harassment.

The defense in this case said she‘s not entitled to those rights because there‘s been no finding of guilt.  This is a consent defense, and in that situation, she should not be entitled to those rights.  I totally disagree and I do agree with Judge Ruckriegel on that count.  Now Judge Ruckriegel said as far as calling her victim in court, that he would issue another order on that asking for more briefing as to whether she‘ll be called victim in court...

ABRAMS:  See, I really...

EARLY:  ... but Dan...

ABRAMS:  ... I don‘t care if she‘s called a victim in court.

(CROSSTALK)

ABRAMS:  I mean...

EARLY:  One second Dan—to circumvent that, to try and not to call her a victim, to avoid calling her a victim, to do everything you can to make sure you don‘t do that may convey to the jury that these acts never occurred, so it could have the exact opposite effect.  I think you‘re absolutely right.  Let the prosecution call her a victim and let the defense call her accuser and keep—and go on with the trial. 

ABRAMS:  But isn‘t there something, though, about the idea—again, I understand the difference between being found not guilty and being truly innocent.  But isn‘t there something—again, if, if Kobe Bryant were to be found not guilty, about the state paying for a victim‘s compensation fund in a case where a jury was unwilling to say we believe that there‘s a victim here. 

EARLY:  The state does that in every case where you never even find a defendant, where you never even have a trial...

ABRAMS:  But you knew you had a victim. 

RUSSELL:  Dan...

EARLY:  Well you know...

RUSSELL:  Dan...

EARLY:  ... have a victim...

RUSSELL:  Dan...

EARLY:  ... but one more thing about calling her victim in court, my preference is to call the victim by her name and call the defendant, defendant to personalize the victim...

(CROSSTALK)

EARLY:  ... to depersonalize the defendant and I think that‘s what‘s happened here. 

ABRAMS:  Yes, I don‘t know.  I mean...

RUSSELL:  Yes...

ABRAMS:  ... I don‘t think they‘re going to mention her name in court. 

Go ahead, Karen. 

RUSSELL:  Well, I think the other thing that the defense is concerned with here with regards to victim‘s compensation is whether or not this victim, alleged victim—this accuser is getting special treatment by the prosecution and so they say you know there‘s this fund, it‘s $100,000 and this fund was used to fund her treatment visit.  Is she being treated differently and is that an incentive for her...

ABRAMS:  Differently than what? 

(CROSSTALK)

EARLY:  ... Dan, I think...

RUSSELL:  An incentive to continue with the—may I finish—to continue with pursuing this case.  That they‘re offering her special treatment.  That she‘s going to this...

(CROSSTALK)

EARLY:  That‘s preposterous...

RUSSELL:  ... even though there‘s plenty of rehab facilities...

EARLY:  Every...

RUSSELL:  ... in Eagle that they‘re flying her...

(CROSSTALK)

RUSSELL:  ... around the country would...

EARLY:  Every defense attorney in this country...

RUSSELL:  ... and putting her at you know at the Betty Ford Centers...

ABRAMS:  All right...

EARLY:  ... would be very happy if no rape victim got any treatment whatsoever so they would come into court...

RUSSELL:  That‘s not true Norm...

EARLY:  ... like a basket case...

RUSSELL:  ... that‘s more of your hysteria.

ABRAMS:  I‘ve got to...

EARLY:  ... that‘s all it is. 

ABRAMS:  I‘ve got to wrap it up.  Norm Early and Karen Russell, thanks...

EARLY:  See y‘all later.  Take care.

ABRAMS:  I‘ll have more to say about the use of the word victim in my “Closing Argument” coming up later at the end of the show. 

Coming up, should an exception be made to rules that require deportation of any immigrant convicted of a felony?  This woman is fighting to be that exception and I‘ll tell you, her case makes a pretty good case for one.

CBS is facing a lawsuit from the father of Princess Diana‘s boyfriend, Dodi Fayed, over its airing of crash scene photos of a dying Princess Diana.  Even though his son Dodi wasn‘t shown in the report, how can he possibly win anything?

(COMMERCIAL BREAK)

ABRAMS:  This is a horrible story.  A teenage Mexican immigrant sold to a much older man as a sex slave.  Years later, she‘s convicted of helping to murder the man who held her captive and raped her repeatedly for five years.  Now after 22 years in prison, Maria Suarez is about to be released, but instead of going free to return to her family who all live here, she‘s sent to an immigration center to be deported. 

Now, Suarez came to the U.S. legally, legally in 1976 when she was just 16.  She became a legal permanent resident.  She was sold to 68-year-old Anselmo Covarrubias for $200.  Five years later he was killed by his neighbor apparently over another dispute.  Suarez was convicted of conspiracy.  Even though she didn‘t actually kill him herself, they believe that she was involved. 

A federal law requires that non-citizens convicted of violent crimes be deported after their release.  She now has supporters from around the country, including 17 members of Congress who have asked California Governor Arnold Schwarzenegger to grant her a pardon. 

They sent him a letter saying—quote—“Ms. Suarez has lived a lifetime of abuse as a victim of sex trafficking, battering and wrongful conviction.  She asks nothing more than to remain in this country so that she can be reunited with her family.”

I‘m joined now by Andres Bustamante, one of the attorneys who is representing Maria Suarez and on the phone from the Immigration Detention Center in San Pedro, California is Maria Suarez.  Thank you both very much for joining us.  We appreciate it.

All right, Ms. Suarez, let me start with you.  First, tell me what happened to you when you were 16 before the murder occurred. 

MARIA SUAREZ, FACING DEPORTATION (via phone):  Before the murder occurred was I was sold to a man for $200.  I was—he told me himself that I was his maid and he had paid money for me and I was to do whatever he tells me to do and he can do to me whatever he was wanting to do... 

ABRAMS:  And he used to rape you and torture you, et cetera? 

SUAREZ:  Yes.  He raped me after three days of being there.  He abused me mentally, physically (UNINTELLIGIBLE) and sexually.

ABRAMS:  I don‘t want to get too much into the trial itself.  But you were ultimately convicted—I know your position is that you had a very bad lawyer, et cetera.  But you were convicted for what?  For hiding the weapons and the murder weapon itself? 

SUAREZ:  Correct.  That‘s what I did. 

ABRAMS:  And how do you feel about the fact that all these people are coming to your aid?  I mean you‘ve got 17 U.S. Congress people writing letters about Maria Suarez saying hey, let her stay in the country. 

SUAREZ:  Blessed, very blessed and thankful for all of them. 

ABRAMS:  All right.  Ms. Suarez, stand by for a moment.  Mr.  Bustamante, the legal issue here.  I mean what is the legal claim you‘re making, apart from the issue of a pardon, or somebody sort of stepping in and saying I‘m going to make this work.  Do you have any legal ground to stand on?  I mean is there any legal argument you can make? 

ANDRES BUSTAMANTE, ATTORNEY FOR MARIA SUAREZ:  I think we do have, Dan.  One of the legal arguments that we have is that people have to know that prior to 1996, if you were a lawful permanent resident, as Maria is, and if you were convicted of a crime, you could still petition or request from the immigration court that you were entitled to a waiver, a second opportunity to remain in the United States by simply proving to the court that you were remorseful, you have been rehabilitated, and that it would be an extreme hardship if you would have to be removed back to your country. 

Unfortunately, in 1996, Congress changed the law and basically repealed that waiver so that that waiver no longer exists.  However, in 2001 the Supreme Court of the United States said well, wait a minute, what happened to those people that were convicted as a result—who were convicted prior to 1996? 

ABRAMS:  All right, let me ask Ms. Suarez...

(CROSSTALK)

ABRAMS:  ... one more second, Ms. Suarez, let me just ask you one more question.  Did you know—you know you‘re serving your time.  You‘re looking forward—you‘ve gotten the reprieve now based on the fact that you were a battered woman.  Did you know that the result of this was going to be that you were going to be deported and separated from your family? 

SUAREZ:  No.  I was not aware of all of this. 

ABRAMS:  And when you heard about this, what were your feelings? 

SUAREZ:  I was—my heart broke down.  I hear that it was an extension, but it was after years and years of being in prison.  And I also hear that I can fight it or kind of work it in a way of bail or something like that.  You know how you hear things from other people so that‘s what I hear.  And I believe that‘s what‘s going to happen to me, but it didn‘t.

ABRAMS:  All right, stand by for a moment.  I just want to—as I like to do, I want to give you my take on this.  Maria Suarez was in this country legally.  She may have helped kill a man who was torturing, raping and abusing her for years as a child, she served her time.  I think the governor should pardon her so she can get back to the same point where she was when she was abducted at age 16. 

Jan Ting is a law professor at Temple University in Philadelphia.  He‘s also former assistant commissioner of the INS or Immigration Naturalization Service.  All right, Jan, good to see you.  What is her best argument here?  And do you think that she should be able to stay in this country? 

JAN TING, TEMPLE UNIVERSITY LAW PROFESSOR:  Well I don‘t think it‘s really an immigration issue, Dan.  I think it‘s really an issue of second guessing a criminal conviction that occurred 22 or more years ago.

ABRAMS:  But she served her time. 

TING:  It‘s not the role of the Immigration Service to look back on that legal proceeding and say well an error was made here or there.  The law, as the attorney just said in 1996, basically ties the hands of the Immigration Service.  This individual was convicted of what‘s called an aggravated felony.  There is no waiver available and indeed, the current law provides for mandatory detention. 

So the real remedy, I think, and I think you‘re on the right track and I think the attorneys are also, is to go to the governor or go to the president, both of whom have pardon power and they also have the staff who routinely investigate...

ABRAMS:  Yes, the governor has already said no, Jan.

TING:  ... these kinds of issues and have them look at it.  And frankly, you know I mean there was a conviction 22 years ago for a serious crime. 

ABRAMS:  Yes, but I‘m not...

(CROSSTALK)

ABRAMS:  ... being an apologist for her conviction.  I‘m not...

TING:  ... and the governor and the president have the means...

ABRAMS:  Right.

TING:  ... and the staff to look into these questions and say was an error done here...

ABRAMS:  Right.

TING:  ... yes or no...

ABRAMS:  But Jan look...

(CROSSTALK)

ABRAMS:  ... no...

TING:  But it‘s not the Immigration Service...

ABRAMS:  But wait...

TING:  ... that can change the verdict here. 

ABRAMS:  ... no one is talking about changing the verdict.  I mean I am not saying she shouldn‘t have been convicted for this crime.  I don‘t want to get into the details of whether she should or shouldn‘t.  They believe that she shouldn‘t.  You know, I don‘t want to go there.  But I do want to go to is the fact that this is a woman who served 22 years and she‘s now being released.  I‘m not saying that she should have been released earlier. 

I‘m saying she‘s now being released.  And the reason that she was in prison is because when she was in 16 years old, she was a legal immigrant, she was abducted and since then her life hasn‘t been the same.  She was a slave—a sex slave for five years and I don‘t see why we can‘t figure out a way, and the fact that the governor is not even really considering this for pardon is disturbing I think.  You don‘t think so? 

TING:  Dan, we routinely have aliens released from prisons who have been convicted of serious cripes.  And the law says, and in 1996 Congress deliberately made this very...

(CROSSTALK)

TING:  ... clear that we want criminal aliens removed...

ABRAMS:  I‘m not saying change the law...

TING:  ... from the United States. 

ABRAMS:  I‘m saying make an exception. 

TING:  Well, that is why we have the governor and the president having the pardon power. 

ABRAMS:  Yes.

TING:  They have the power and they have the staff and the means to review these cases, even 22, 24 years later. 

ABRAMS:  Mr. Bustamante, final word on this. 

BUSTAMANTE:  I believe she‘s entitled to a waiver.  I think we have—we‘re confident she has legal grounds.  I believe that the Ninth Circuit Court of Appeals would hopefully rule in our favor...

ABRAMS:  Yes.

BUSTAMANTE:  ... because she was not—she never elected to go to trial.  She was forced to go to trial and I think that that‘s a distinction that the...

ABRAMS:  All right.  Well...

BUSTAMANTE:  ... immigration court and the federal court will eventually make. 

ABRAMS:  Yes, I think you‘re going to have a tougher argument on sort of trying to revisit the verdict.  But look, I feel—my—you know, I feel for Maria Suarez in this case, I have to tell you.  It‘s not very often that I‘m siding with the defendants.  I side with Maria Suarez here.  I think that they should figure out a way to let her stay in this country now that she‘s served her time.

Maria Suarez, Andres Bustamante and Jan Ting, thanks lot. 

BUSTAMANTE:  Thank you very much Dan.

ABRAMS:  Would pictures of a dying Princess Diana aired on CBS be disturbing enough for the father of her companion Dodi Fayed to win a lawsuit?

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Controversial images of after dying Princess Diana aired on CBS last week and it has led the father of Diana‘s then boyfriend to file a lawsuit against the network.  Mohamed al Fayed, father of Dodi, said the images shown by the—of the August 1997 Paris car crash invaded his privacy and caused him emotional distress.  The lawsuit filed in L.A. last week was in part to prevent the program “48 Hours Investigates” from airing pictures of Dodi.  Those images didn‘t air. 

But a second part of the suit is ongoing.  CBS has not been formally served of the suit but called it—quote—“meritless” and say they intend to vigorously defend, they say, ourselves.  All right, my take.  As a legal matter, I don‘t understand how he could have a case, even if images of Dodi were shown as well. 

I‘m joined now by Chip Babcock, the famed First Amendment attorney.  All right, Chip, let‘s first take the facts that we have in place and that is that no pictures of Dodi were shown and yet Mohamed al Fayed is saying it still caused him enormous emotional distress.  As a legal matter, is that a claim?

CHIP BABCOCK, FIRST AMENDMENT ATTORNEY:  No, it‘s absolutely not Dan.

ABRAMS:  Tell me why.

BABCOCK:  There‘s—well there‘s no law, state or federal that I‘m aware of that allows somebody who‘s watching television and sees a six-second black and white photograph of an accident victim and feels badly about it to sue the media and recover damages.  There just isn‘t such law. 

ABRAMS:  What about if Dodi‘s picture had been shown?  You know then he‘s saying it‘s an invasion of his privacy, of his family‘s privacy, and then at least you can understand why he‘d be particularly—I mean you can still understand why he‘s distressed—but particularly distressed about seeing his son.  Still you don‘t think any claim? 

BABCOCK:  No, I don‘t think there‘s any claim for the same reason that there just isn‘t any law in the books.  There‘s no precedent to support such a claim.  And of course, these photographs are part of a, as I understand it, French investigation which Mr. Fayed himself has called into question and criticized.  So in a sense, he‘s made the news that he‘s now complaining about. 

ABRAMS:  Well, is there anything with regard to defamation?  I mean you know we should point out that you‘re generally on the side of defending the media in these cases...

(CROSSTALK)

ABRAMS:  Defamation, can they claim—any kind of defamation claim that they could make here? 

BABCOCK:  Well, I know they‘ve threatened that and I suppose that if in commenting on Mr. Fayed‘s allegations of conspiracy they said something in the wrong way, maybe Mr. Fayed could fashion some sort of defamation claim, but I don‘t see it in this context.  CBS was reporting on something that‘s newsworthy.  Mr. Fayed has in large part himself made it newsworthy and from what I could tell from the CBS report, it was entirely accurate. 

ABRAMS:  Very quickly, does anyone have a right when they see something that is very upsetting about their own life on television to make a claim to file a lawsuit, do you think would be valid? 

BABCOCK:  Well not for emotional distress.  I mean you know you see all the time images on television that are distressing to us.  We cover—the media covers a war that‘s going on now.  We see soldiers who are injured or dying, and those images are shown.  They‘re certainly distressing to us, but you can‘t go suing the television station or the network that publishes those. 

BABCOCK:  If you could, it would be unconstitutional under the First Amendment. 

ABRAMS:  All right.  Well look, you know Chip Babcock, thanks a lot for coming on.  And I welcome the attorneys for Mr. Al-Fayed to come on and tell us why Chip Babcock is wrong.  Chip, thanks again. 

BABCOCK:  You bet Dan.  Thanks.

ABRAMS:  Coming up...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  How many saw Jermaine Jackson on THE ABRAMS REPORT on NBC yesterday? 

(END VIDEO CLIP)

ABRAMS:  What is Jay Leno talking about the—what is he saying about the program about justice this time?  We‘ll show you.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, “Your Rebuttal” about my comments last night—why I think it‘s time to just expect nothing from many in the Arab media.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the effort by Kobe Bryant‘s defense team to make the lawyering politically correct.  They want prosecutors to stop referring to the alleged victim in this case as—quote—“victim” in court papers.  They say it eviscerates the presumption of innocence.  How?  The prosecutors are not presuming him to be innocent.  They are trying to prove he‘s guilty.  They are lawyers, arguing a case against a man who has been indicted for rape. 

Why is it surprising or improper that prosecutors are pursuing the charges believe she‘s a victim?  It‘s not improper.  The same way the defense calling her the accuser and referring to the allegations as false is not improper.  If I was regularly referring to her as the victim or the judge was referring to her as the victim, they‘d have a legitimate beef, but this is the prosecutors.  Will the defense next argue that the prosecution should not be able to use the word guilt or guilty because the jury has not reached a verdict yet?  Come on. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  My “Closing Argument” last night that it‘s maybe time to give up on Arab television stations like Al Jazeera and Al Arabiya.  I said that we must expect that the U.S. will be falsely portrayed and that they are just agenda driven troublemakers.

Ihsan Alkhatib from Dearborn, Michigan disagrees.  Quote—“You state that Al Jazeera‘s journalists are not real journalists.  I strongly disagree with this baseless Secretary Rumsfeld inspired comment.  Right after your comments I watched Al Jazeera.  They had a news broadcast.  They had Secretary Rumsfeld denying that U.S. targets civilians.  Al Jazeera is the best thing that happened in the Arab world for the cause of freedom of expression.”

Ihsan, even your observation proves my point.  They‘re doing segments on whether the U.S. is targeting civilians.  Imagine if we did a segment that asks are all Arabs terrorists?  You‘d say what kind of segment is that, and you‘d be right.  It would be creating a fictional issue and then debating it.  The notion that the U.S. is intentionally targeting civilians is ludicrous. 

Karen Matson—“Did you pay any attention to U.S. news reports about Iraq this evening?  Everyone talked about insurgent and troop deaths, but not one word about civilian casualties.  Perhaps it‘s best to listen to worldwide news to get the whole story.”

Karen, worldwide news is one thing.  The instigators at some of those Arab stations are only worth watching to understand the definition of propaganda. 

Finally, the Scott Peterson case, another anonymous letter from someone who claims to know who really killed Laci Peterson, this one included a hair and fingerprint.  I said you can‘t test every letter sent to judges from crazies, but Leah from Michigan Falls (ph), Ohio writes, “What harm could it possibly do to test their validity and how else can their evidentiary value be legitimately dismissed?”

Leah, the test is not what harm could it do?  There are lots of tests that authorities could do but don‘t because there‘s no reason to believe it will make a difference.  Prosecutors cannot rule out every theoretical possibility.  That‘s why the standard in the criminal trial is called beyond a reasonable doubt, not beyond any theoretically, possible doubt. 

Finally, Jay Leno gets his rebuttal on our interview with Jermaine Jackson Monday night.  Jermaine was joining us from Bahrain and the TV station there had a background with elaborate Arab writing.  Jay was just wondering.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  How many saw Jermaine Jackson on THE ABRAMS REPORT on NBC yesterday—MSNBC?  Did you (UNINTELLIGIBLE).  Yes, yes.   Well, he spoke out in support of his brother Michael, supposedly from Bahrain.  I guess he‘s over in the Middle East now. 

UNIDENTIFIED MALE:  You know we‘re getting a Jackson in the Middle East, the voice of reason over there, thank goodness. 

(LAUGHTER)

UNIDENTIFIED MALE:  Well, he said he was in Bahrain.  Well they had—did you see that curtain that was up behind him?  I think it was—well, show what happened during the interview.  Watch.  Take a look. 

UNIDENTIFIED MALE:  Michael, as well as they know, is completely innocent and...

(SOUNDS)

UNIDENTIFIED MALE:  He‘s in Vegas...

(SOUNDS)

UNIDENTIFIED MALE:  ... he was in Vegas. 

(APPLAUSE)

UNIDENTIFIED MALE:  He was in Vegas.

(END VIDEO CLIP)

ABRAMS:  Vegas?  We checked it out, by the way, before we aired it.  It was verses from the Koran.  And if that was Vegas, some little outfit in Bahrain owes us a lot of cash for the satellite.  And also wouldn‘t you wish more people were clapping about who saw it last night?  Come on. 

Your e-mails to abramsreport@msnbc.com.  We‘ll go through them and read them on the air. 

Coming up next, “HARDBALL” with Chris Matthews.  Chris talks with Bill Maher. 

See you tomorrow.  Happy birthday Liz.

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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