updated 5/6/2004 11:46:52 AM ET 2004-05-06T15:46:52

Guests:  William Eckhardt, P.J. Crowley, David Sheldon, Martin Horn, Niles Gardiner, Arthur Aidala, Joel Androphy

DAN ABRAMS, HOST:  Coming up, the Army announces more investigations of prisoner deaths in Iraq and Afghanistan. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The heat now on Defense Secretary Donald Rumsfeld.  Some in Congress calling for his resignation in the wake of the prison scandal.  But if he doesn‘t resign, could he be punished as the man in charge? 

Plus, a new report says U.S. prisons may be a new recruiting ground for al Qaeda, a way to get more Americans on board. 

And a big ruling in the Martha Stewart case.  The judge decides whether Stewart gets a new trial. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up, the alleged prisoner abuse scandal just seems to be getting bigger.  Defense Secretary Donald Rumsfeld saying there are six independent investigations underway.  The military says 10 suspicious deaths are currently being investigated out of at least 30 criminal investigations into possible abuse in both Afghanistan and Iraq. 

Before we discuss whether the true higher ups could pay the price, President Bush went on the offensive today doing interviews with two Arab TV networks, saying he‘s appalled at the alleged abused and promised a full investigation. 

NBC‘s Steve Handelsman has more.

(BEGIN VIDEOTAPE)

STEVE HANDELSMAN, NBC NEWS CORRESPONDENT:  President Bush went on Arab TV to reach Iraqis and repair the damage for the abuse of Iraqi prisoners. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Our citizens in America are appalled by what they saw, just like people in the Middle East are appalled.  We share the same deep concerns. 

HANDELSMAN:  On both Al-Arabiya network and the U.S. (UNINTELLIGIBLE)

Alhurra, Mr. Bush promised complete disclosure. 

BUSH:  We fully investigate.  We let everybody seen see the results of the investigation and then people will be held to account. 

HANDELSMAN:   Arabs watched throughout the Middle East and Iraq, some skeptically. 

MAMOUN FANDY, NATIONAL DEFENSE UNIVERSITY:  What is most important is what will happen, what kind of actions will the United States take.

HANDELSMAN:   Under investigation now is much more than the abuse of Iraqis at Abu Ghraib prison, the deaths of 10 prisoners as well.  Two already ruled criminal homicide and not just in Iraq, at U.S. detention facilities in Afghanistan too.  Defense Secretary Rumsfeld is defending the Pentagon process. 

DONALD RUMSFELD, SECRETARY OF DEFENSE:  The system worked and it was announced publicly.  There was no secret about it; they went right before the world. 

HANDELSMAN:   But Rumsfeld first heard in January and knew of abuse in March, he didn‘t tell Congress and some lawmakers are furious. 

SEN. JOSEPH BIDEN (D-DE), FOREIGN RELATIONS CMTE:  If it goes all the way to Rumsfeld, then he should resign.  Who is in charge?  I mean look, every single solitary decision made almost since the fall of Saddam Hussein has been mistaken.

HANDELSMAN:   Abu Ghraib is where Saddam did his dirty work.  Now the focus is on American abuse of prisoners and who knew what when, up the chain of American command. 

Steve Handelsman, NBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  And while some are calling for the Secretary of Defense Rumsfeld to resign, what if he doesn‘t?  Let‘s assume for a moment that he doesn‘t.  Can he be held responsible for abuse by U.S. soldiers? 

Let me ask my legal panel.  Today I‘m joined by William Eckhardt.  He‘s a former federal prosecutor and now a law professor at the University of Missouri in Kansas City.  Former JAG attorney David Sheldon and Colonel P.J. Crowley, who was deputy spokesperson at the Pentagon before coming spokesperson for the National Security Council under President Clinton.

All right, Mr. Eckhardt, let me start with you.  I mean how high up can this go based on what we know now? 

WILLIAM ECKHARDT, LAW PROFESSOR, UNIV. OF MISSOURI:  Well it depends upon what you are speaking of?  Are you speaking about criminal responsibility or political responsibility?

ABRAMS:  Well let‘s talk about—apart from criminal, I mean I think it‘s almost—you know it would be almost unheard of for very high ups to be held criminally responsible unless they had some knowledge of what was actually happening, correct? 

ECKHARDT:  Absolutely.  They would have to have some—they would have to either issue some illegal instructions or know of some instructions and have the ability to stop it...

ABRAMS:  All right...

ECKHARDT:  ... that‘s not even present here. 

ABRAMS:  Yes.  Let‘s assume that‘s not the case for a moment.  Now let‘s just talk about whether as the supervisor of all of prisons or as the supervisor of the Defense Department, how high up can responsibility go?  And I mean reprimands.  I mean punishments.  Put aside criminal responsibility for a moment. 

ECKHARDT:  Well somebody like the secretary of defense and senior military commanders have command responsibility and that responsibility is that when matters like this are brought to their attention that they take vigorous action to prevent and vigorous action to punish wrongdoers and that is what apparently is happening with the investigations that are underway. 

ABRAMS:  Colonel Crowley, how does it work in terms of chain of command?  I mean we know sort of who‘s above whom in terms of chain of command.  But let‘s assume for a moment that Donald Rumsfeld and other higher ups didn‘t have actual knowledge of what was happening.  Apart from political responsibility, apart from political pressure, is there any mechanism within the Defense Department such as there could be reprimands to supervisors for not knowing? 

COL. P.J. CROWLEY (RET.), U.S. AIR FORCE:  Well I think in terms of Secretary Rumsfeld, he would serves at the pleasure of president and if the president you know has no confidence in his secretary of defense, then he will resign.  In fact, today the president said I have some confidence in the secretary.  That‘s not exactly a ringing endorsement.  I think when you get up to the Pentagon legal you‘re talking about a political failure.  Not necessarily in terms of their knowledge of the investigations, but their total lack of awareness in terms of the ramifications this would have in the Middle East. 

ABRAMS:  Mr. Sheldon, what about people like you know General Abizaid and others who are sort of the commanders in the region, any chance that any of them—and again, apart from political and apart from criminal, is there any other mechanism by which they might be held accountable? 

LT. DAVID SHELDON (RET.), U.S. NAVY FMR. JAG:  I find that to be very doubtful.  The people who are going to be held accountable are the soldiers who committed this.  At most, you would see the second tier individuals, commanders being held responsible.  I just don‘t see it.  What has happened is that there has been a discovery in November and December, investigations in a timely manner in January.  I think where this administration gets inept it‘s politically. 

ABRAMS:  But how does it work within the military in terms of holding people responsible?  I mean how do they determine when they are doing an investigation and they‘re viewing something that has happened.  Let‘s assume for a moment that there is wrongdoing and let‘s assume for a moment that you know a handful of people who knew, there were either orders or there weren‘t orders.  Do the commanders generally get held responsible and how high does it generally go? 

SHELDON:  My experience has been that it doesn‘t go very high at all. 

In fact, in this case, people are focusing in on the November time period.  I know of incidents that occurred in September where people were administratively discharged, basically given other than honorable discharges or even general under honorable circumstances and they committed physical acts of torture.  Now, those people, one can only assume that that‘s a whitewash because if they actually did commit—and I want to hesitate to even prejudge anything in this circumstance and that‘s one of the problems I have with politically what‘s going on is the president comments, the secretary of state‘s comments all seem to prejudge this.  This system has to work.  These soldiers and sailors and individuals who are at these installations, service members have a right to be tried by a duly convened court martial and have a fair punishment assessed. 

ABRAMS:  Right.  But that‘s why the secretary of defense has been careful.  In fact, there have been times when he has been asked questions and he said you know what, I don‘t want to comment on that because I don‘t want to affect...

(CROSSTALK)

ABRAMS:  ... the process. 

(CROSSTALK)

ABRAMS:  But you have to be able to look at the pictures and make a certain level of judgment, which is that there was some wrongdoing.  Now...

SHELDON:  Oh absolutely...

ABRAMS:  Right.

SHELDON:  ... and I‘m not condoning that.  But to compare this as the secretary of state did to My Lai did today or earlier this week, it‘s simply not credible.  This is light years away from that type of situation. 

ABRAMS:  We‘ll get to that later because we are going to—we‘ll talk about the My Lai situation later and you‘ll be able to talk to us about whether you think it‘s comparable. 

Colonel Crowley, again, I‘m just trying to get a good picture of how it works when you are talking about supervisors and underlings.  And is it only one level up, so to speak, that is generally held responsible?  Or does it generally—let‘s again assume some level of wrongdoing here.  How does it work in assessing how high it can go? 

CROWLEY:  Well I think now—take away from the legal circles now and get into the aspects of training and deployment of forces.  Certainly, you know in addition to the failure of those individual soldiers in the prison, it was clearly a failure of leadership. 

ABRAMS:  Yes.

CROWLEY:  Beyond that there was also indications that the soldiers that were there, there were not enough of them and they were not trained to do what they were doing.  At some point either through Army channels or perhaps through a congressional investigation, now you will get at the next couple of echelons.  You know did we go into Iraq not prepared for the kind of situations we are putting our soldiers in.  And now in fact because of what‘s happened, other soldiers are actually at risk in the region.  In that kind of circumstance, again, you‘ll get this kind of loss of confidence that could result in the removal of people from positions they‘re in.

ABRAMS:  And Brigadier General Karpinski has already been held to a certain degree responsible, correct? 

CROWLEY:  I think in the Taguba report that came out in February...

UNIDENTIFIED MALE:  Yes.

CROWLEY:  ... a number of officers, eight or 10 have already been relieved of command. 

UNIDENTIFIED MALE:  I think...

ABRAMS:  All right, let me take a quick break.  I‘m going to ask you all to stick around for a moment.  We‘re going to continue this conversation in a moment.

Coming up, they said they were just following orders.  Why that defense is not supposed to work but it has in the past.  Might it work again? 

Plus, al Qaeda may be searching for new members in U.S. prisons.  A new Justice Department report says prisons need to be on the lookout. 

And the Martha Stewart judge rules on whether there will be a new trial for Martha Stewart.

What do you think?  Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, it‘s the most well known case of U.S. soldiers committing serious crimes and then saying they were ordered to do it—how almost all of them got off coming up next.

(COMMERCIAL BREAK)

ABRAMS:  U.S. military law makes it clear, that using the “I was just following orders” defense is not an excuse for illegal behavior.  A soldier can still face prosecution and conviction for the crime.  But it may be the most famous case of U.S. soldiers allegedly committing serious crimes and then saying they were ordered to do it, the defense appears to have worked.

It was March 16, 1968 in the small South Vietnamese village of My Lai.  The Army‘s Charlie Company came into the village looking for Viet Cong hiding as farmers.  The soldiers ended up killing at least 341 unarmed civilians including women and children.  Some put the number as high as 500.  When the news broke of the massacre a year later, there were calls like today for an extensive investigation and top military heads to roll. 

Now, that obviously much more serious, but the result of that investigation, the Peers Report, recommend action against at least 30 officers and enlisted men for rape, murder or participation in the cover-up.  All the men claimed at least in part to be just following orders.  In the end, only five soldiers court-martialed, only two were tried, only one convicted, Lieutenant William Calley, the military tribunal found him guilty, sentenced him to life in ‘71.  He only served a few days in prison.  President Nixon ordered that he serve his time under house arrest.  In ‘74 a federal court overturned his conviction.  Later an appeals court reinstated it, but Calley didn‘t have to serve any more time. 

So while the military law says it‘s not a defense, could all the finger pointing actually lead to no one really being punished?  Now William Eckhardt represented the government against Lieutenant Calley when it went to federal court.  He‘s now a law professor at the University of Missouri in Kansas City. 

All right, before we go to the rest of the guests, let me just stick with Professor Eckhardt for a moment.  Do you think that this type of defense—how did it work back then?  How did that defense of I was just told to do it, work back then? 

ECKHARDT:  Well, you always have that sort of excuse passing.  The first issue you have to decide is whether there was in fact an order given.  And in My Lai, only the people who actually killed said they received orders to kill civilians.  In the second question that our law requires is a determination of whether the order was legal or not and the military judge in Calley case clearly ruled it illegal.  The third question you have then is the intent of the individual soldier.  He must, as a reasonable man, as an objective standard, be able to think that the order was legal. 

And you go from there.  And obviously, the court in the Calley case thought

·         did not agree with that and they convicted him. 

ABRAMS:  But how did it work with regard to the rest of them?  I mean the fact that only one person in connection...

ECKHARDT:  Well there are vast differences.  First, the trials were two years later.  The crime scenes were battlefields half away—a world away with witnesses impossible to obtain.  And that‘s just simply not the case right now.  This sort of incident is fresh.  You have witnesses.  You have public pressure this time on the side of prosecution.  So, I think the comparison just simply doesn‘t follow in that regard. 

ABRAMS:  Mr. Sheldon, look, there is no question that you can‘t compare the acts, alleged to have been committed in My Lai with the acts committed here, let‘s just accept that as a given for a moment.  And now let‘s just talk about it as a legal matter with regard to using this type of defense the and that is, I was just following orders.  Doesn‘t that get very tough to assess as to who said what to whom and when? 

SHELDON:  Well I think that that‘s correct.  But you have to—as a defense team you have to build an entire case.  One, you have reserve forces.  Sometimes you have active duty forces that are being placed into prison environments where they are not equipped to—they haven‘t been trained properly. 

ABRAMS:  So if that‘s the case...

(CROSSTALK)

ABRAMS:  Let me just ask you—if that‘s the case, as a legal matter, does that then make it such that they are not legally responsible for what they do? 

SHELDON:  It certainly mitigates.  It could become a defense...

ABRAMS:  Really?

SHELDON:  ... if they are also told that you are supposed to be—and they are engaged to be part of an intelligence gathering information and to put pressure on these prisoners.  And to that extent, look at the synergistic affect of that.  You have individuals who are ill equipped, are not trained properly to maintain a foreign prison, in essence.  You have a situation that is volatile.  You have a situation that is inflamed.  And you have intelligence officials telling you well, you go out and put pressure on them.  This is exactly the type of thing that would happen.  And it—certainly it‘s not a defense, it‘s not a defense, it certainly mitigates against their behavior...

(CROSSTALK)

SHELDON:  ... and these pictures are incredibly powerful and...

ABRAMS:  But isn‘t the law so clear, Mr. Sheldon and that is, it‘s simply not a defense to say I committed an unlawful act because I was told to do it? 

SHELDON:  I don‘t think it‘s as clear as that.  For one thing, what is unlawful?  If this is permissible conduct for intelligence gathering and certainly this...

ABRAMS:  There is no way this is permissible.  There is no way stacking people in pyramids naked and making them perform sexual acts is somehow permissible as an interrogation technique.

SHELDON:  Well, certainly, the United States has at times, including in Afghanistan and Iraq used—and Guantanamo Bay for that purpose—for that matter, certain very pressure-oriented tactics. 

ABRAMS:  Right.

SHELDON:  This is something that you would expect...

ABRAMS:  But this is different. 

SHELDON:  This is something you would expect from somebody who is not trained, who doesn‘t understand, OK, this is not within the bounds.  And as clear as it made seem to us in America here and it‘s important that we not prejudge this. 

ABRAMS:  Yes.

SHELDON:  It‘s important that a general court martial look at all of the facts or a court martial at least look at all of the facts and circumstances.  We cannot prejudge this...

ABRAMS:  And I understand that.  But Colonel Crowley, that just seems to me to be making an excuse in essence to say well they weren‘t trained.  I understand that it might mitigate yes, but it just—it can‘t possibly be that you have to be trained to know not to stack naked prisoners in a pile and not to have them perform sexual acts on one another. 

CROWLEY:  Well, I think the pictures themselves are going to be very difficult for a defense to work around.  And I‘m not a lawyer, but obviously, they are very compelling photos, they‘re very powerful photos and they theoretically would show you know this is conduct that is not sanctioned by training or discipline that anyone in the military normally associates with. 

ABRAMS:  All right, let me just—I am going to ask you all just to stick around again for a moment. 

Coming up, the interrogation process, how far can soldiers legally go when questioning prisoners?  Can they be forced to wear hoods?  Can they be stripped naked?  We‘ll talk to a man who has been there about what he did and whether he ever crossed the line. 

Plus, is al Qaeda recruiting American terrorists in U.S. prisons?  The result of a new report is coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Continuing our coverage now of the alleged abuse at Abu Ghraib prison in Iraq, today the first look at exactly where the incidents occurred.  Also, the commander of U.S.-run prisons in Iraq issued an apology and said some interrogation techniques will be changed. 

(BEGIN VIDEO CLIP)

MAJ. GEN. GEOFFREY MILLER, U.S. ARMY:  We have made a number of changes in the detention, interrogation and legal process.  We have revalidated our standard in all of those areas.  I can personally guarantee that we will follow those standards.

(END VIDEO CLIP)  

ABRAMS:  Question—how far can interrogators go in their questions?  We have seen the photos of the Iraqi detainees with hoods, hooked up to electric wires, stripped naked.  The question—where is the line? 

Joining me now for a certain perspective, former FBI special agent and MSNBC analyst Christopher Whitcomb who has personally led numerous interrogations.  All right, Chris—his upcoming novel is “Black”.  It‘s coming out next month.  All right, Chris, let‘s picture, you are involved in an interrogation.  You‘ve got an Iraqi prisoner there.  You need information.  That person refuses to give you the information that you need.  What are you allowed to do that goes right up to the line without crossing it? 

CHRISTOPHER WHITCOMB, FMR. FBI SPECIAL AGENT:  Dan, you are looking at two different standards, one civilian law enforcement to include the FBI has pretty—clearly defined parameters because that information has to be presented in a court of law and you know that those standards are very high.  You break those standards, the evidence is not admissible and they are going to walk free.  Military intelligence, DIA, CIA, various Army, Air Force, Navy, Marines intelligence are very different because they don‘t have to present that evidence anywhere.  They want information that they can use in military targeting, in trying to find other people within Saddam Hussein‘s administration, for example, and they have a different standard and those lines go a lot farther than what you could find with an FBI interrogation.

ABRAMS:  But when you were—look, a lot of your work was abroad and I‘ve got to believe that some of time you recognize that whatever information you received, you probably wouldn‘t be able to use in court anyway, is that fair? 

WHITCOMB:  That‘s very fair.  And that‘s why the CIA and we‘ll differentiate between the CIA and the FBI, it‘s much more complicated than that, but just for the sake of discussion, that the FBI sometimes would not participate in a CIA interrogation for that very reason.  That they would know that the evidence gathered there would not be admissible if they were present during the interrogation. 

ABRAMS:  What kind of things would they do? 

WHITCOMB:  I am saying that there are different standards.

ABRAMS:  What kind of...

WHITCOMB:  Well look, in any interrogation, you‘re going to use lies; you‘re going to use coercion.  You‘re going to threaten to a certain extent.  But the FBI and civilian law enforcement know that there‘s a line that they are not going to cross.  You see different things in military interrogations because they don‘t have that.  So, what would typically and with threats, perhaps, or with coercion in a civilian law enforcement interrogation would not end there.  And in a military interrogation, you would have threats that turned into a greater type of coercion.  I‘m not saying torture.  Believe me, I‘m not saying that.  I am saying that they might use humiliation, for example, that they would use sleep deprivation, food deprivation.  That they would change the sleep cycles and that they would go beyond what civilian law enforcement would do.  And I think that‘s exactly what we are seeing here. 

ABRAMS:  Colonel Crowley, as far as you know, stripping naked, is that OK?  Hoods OK? 

CROWLEY:  Well I think you‘ve got to balance what you need from a tactical intelligence standpoint, you know with the requirement of hearts and minds.  Obviously, if these techniques have gone beyond and the fact that they were photographed is odd, then obviously whatever we‘ve gained in terms of a military advantage, we‘ve certainly lost in terms of a larger...

ABRAMS:  Right.  No, no, put this aside.  I mean look no one is justifying this.  I‘m not asking whether this is crossing the line.  Everyone agrees this crosses the line.  Now I‘m asking you to help me define where that line is in terms of what would be—I mean is it improper, for example, simply to strip a prisoner naked?  Is it improper to use hoods?  Let‘s just take those two, for example. 

CROWLEY:  Well, I think in this particular case, you also have the confusion between what the legal status of these detainees were.  The administration said that it was abiding by the Geneva Conventions, but not yet officially conferring Geneva rights on these detainees since they were not combatants.  Whether that...

ABRAMS:  Yes.

CROWLEY:  ... confused in the minds of the interrogators, how far they could go is obviously a subject to be investigated. 

ABRAMS:  Chris, you ever used a hood? 

WHITCOMB:  Yes, Dan, and look, I don‘t think anybody is going to argue that you couldn‘t use hoods even in civilian law enforcement because they‘re going to say it‘s a protective device.  That you‘re going to handcuff someone, for example, to make sure that they‘re not a threat to the people doing the interrogations and you‘re going to put a hood over their head in some instances to ensure your own security.  And remember, we‘re talking about a war zone, Dan.  And I‘ve talked to people about these interrogations and they said look, these aren‘t jaywalkers.  These are people that the military at least expected were a significant threat to them personally.  So you know it‘s that line Dan.  The problem is when you deal with military intelligence gatherers there is a secrecy level that protects them and many of their techniques from outside scrutiny.  It‘s part of the process...

ABRAMS:  Yes.

WHITCOMB:  It‘s necessary in a certain way, but it can get carried away.

ABRAMS:  But obviously these people were not, you know, military interrogators.  They wouldn‘t be sitting there taking pictures of themselves with their thumbs up. 

WHITCOMB:  No and I think that‘s the problem. 

(CROSSTALK)

WHITCOMB:  You know what‘s going to come out during a trial is that you have civilians—reservists brought to Iraq...

ABRAMS:  Yes.

WHITCOMB:  ... placed on active duty, doing things they weren‘t trained to do and they‘re looking up to the military intelligence people who are very, you know, spook really mentality and that they look and say we don‘t know what we‘re trying to do...

ABRAMS:  Yes.

WHITCOMB:  ... but we‘ve been suggested that we soften them up and that it got carried away. 

ABRAMS:  Yes.  All right, what a mess.  Chris Whitcomb, William Eckhardt, David Sheldon, Colonel Crowley, thank you very much for coming on.  Appreciate it.

Coming up, al Qaeda operatives may be infiltrating U.S. prisons to recruit inmates.  The findings detailed in a new report released today. 

Plus, will Martha Stewart get a new trial?  The judge rules. 

Don‘t forget your take on the show.  E-mails abramsreport@msnbc.com

Please include your name and where you‘re writing from.  I will be reading

them at the end of the show

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We are back.  Al Qaeda operatives may be infiltrating U.S.  prisons to radicalize and recruit inmates.  This coming from a disturbing report from the Justice Department today.  The Inspector General‘s Office compiled the report and warns that the federal prison system to tighten up its policies, specifically supervision religious services. 

Quote—“The BOP or Federal Board of Prisons does not require inmate-led religious services to be monitored constantly by a staff member.  Rather, staff must supervise inmate-led services only intermittently.  As a result, inmates have the opportunity to deliver radical messages during religious services.”

The report found that there is only one Muslim chaplain for every 900 inmates of that faith and approximately 9,000 inmates seek Islamic religious services.  So many inmates are now leading the sessions.  The report suggests prison officials better police chaplain libraries from possible extremist materials and employ a more stringent system for screening Muslim chaplains.

Joining me now Commissioner Martin Horn of the New York City Department of Corrections and Niles Gardiner of the Heritage Foundation.  Thank you both very much for joining us. 

All right, Mr. Horn, what do you make of this report and are you going to change how you do things as a result of it? 

MARTIN HORN, COMM., NYC DEPT. OF CORRECTION:  Well, I think this report underlines the fact that in this day and age we all have to be vigilant.  It‘s no surprise that people who are interested in acting contrary to the law are going to try to find adherence in prison.  That has been going on as long as there have been prisons.  And good correctional practice throughout this country requires that we take a variety of steps to guard against that.  And good prisons and jails around this country already do.  In New York City, we thoroughly check the background of all of our chaplains.  We have an experienced professional chaplaincy group...

ABRAMS:  Do you monitor all of the inmate-led religious services? 

HORN:  We don‘t allow inmates in New York City to lead religious services. 

ABRAMS:  So that‘s a non-issue...

HORN:  In New York City...

ABRAMS:  ... in New York.

HORN:  Yes.   

ABRAMS:  Let me read another quote from the report.  “This freeze on hiring Muslim chaplains implicates prison security and presents counterterrorism concerns.  Without a sufficient number of Muslim chaplains on staff, inmates are much more likely to lead their only religious services, distort Islam, advocate prison Islam, and espouse extremist beliefs.”

Have you found anything, Commissioner Horn that has suggested to you that there may be some al Qaeda influence in your prison? 

HORN:  We are alert to that and we have staff assigned to the joint terrorism task force.  We are in contact with them and we have not found any evidence of that activity.  That‘s not to say that it‘s not occurring but certainly we look for it.  We have an intelligence division and we have not found evidence of it. 

ABRAMS:  And what about the libraries?  What about sort of monitoring what they can read in terms of extremist views?

HORN:  We don‘t have those kind of chaplaincy libraries services that are referred to in the report.  I think that is more unique to the federal prison system than it is to our system here in New York City.

ABRAMS:  All right.  Mr. Gardiner, how big a problem do you think this is?

NILES GARDINER, HERITAGE FOUNDATION:  Well I think it‘s a substantial problem.  This was a imminently sensible report by the Justice Department, quite scathing I think in terms of its criticism of the way in which the prison system is being handled with regard to the infiltration possibly by Islamic extremists and I think the report makes many sensible recommendations.  In particular, the report has been spurred by two cases. 

Firstly, the case of Jose Padilla, the man who is accused of planning to activate a radioactive bomb in America.  And secondly, the case of Richard Reid, the British shoe bomber.  Both of these characters actually converted to Islam in prison and therefore, both examples have raised some very, very serious concerns.  But I think that we do need to take the criticisms in the Justice report extremely seriously.  We do need a better system of monitoring with regard to prison chaplains.  We also need to more closely monitor I think the content of religious services being held inside the prisons. 

ABRAMS:  Very quickly, Mr. Gardiner, do you think that this is a widespread problem?  I mean some people are saying well, look, the report doesn‘t really suggest that this is a widespread problem.  It‘s just a warning.  Did you think that the report may actually even be downplaying the dangers in our prisons? 

GARDINER:  I think it‘s a very accurate report actually.  I think there is great variation within the U.S. prison system with regard to infiltration by Islamic extremists.  But it has to be (UNINTELLIGIBLE) in mind, of course, that we are fighting a war against al Qaeda here.  We have to remain extremely vigilant.  We have to take whatever measures are necessary in order to prevent the infiltrations of American prisons by al Qaeda militants.

ABRAMS:  Commissioner Horn and Niles Gardiner, thanks very much. 

Appreciate it.

GARDINER:  Thank you.

ABRAMS:  Coming up, a big ruling in the Martha Stewart case about whether she gets a new trial. 

Plus, insurance companies denying life insurance to anyone who has or will travel to Israel.  Their reasoning, it‘s just too dangerous.  Who would have thought we would have to tell the insurance companies to look at the numbers.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Martha Stewart‘s defense team have been pinning their hopes on a new trial and today, the ruling.  The defense presented evidence of what they called one juror‘s—quote—“checkered history”.  Remember they came up with all sorts of witnesses who alleged juror Chappell Hartridge beat up his girlfriend, stole money from a little league team and abused drugs.  They said he lied about all of that on his juror questionnaire.  They also claimed that he was biased against Stewart, citing comments that Hartridge after Stewart‘s conviction where he called it a—quote—“victory for the little guy.”  They repeatedly quoted his appearance on this program. 

Well, that wasn‘t enough to convince Judge Miriam Goldman Cedarbaum.  Today she denied the defense motion writing—quote—“The defendants have failed to demonstrate that Hartridge‘s purported nondisclosures justified vacating their convictions and granting a new trial.  That Hartridge spoke of the verdict‘s broader message does not reveal an agenda to punish the wealthy and powerful.  He was very likely responding to questions that invited him to speculate about the impact of the verdict.”

Is the judge, saying I invited him to speculate?  I think so.  My take

·         I predicted the defense has had almost no chance with this motion.  It appears this time, I was right.  Let‘s bring in the legal team to weigh in on this one. 

I‘m joined now by white-collar defense attorney Joel Androphy, who was co-counsel for Susan McDougal in the appeal of her Watergate conviction and former prosecutor Arthur Aidala, who is now a defense attorney handling white-collar cases. 

All right, Arthur, this is no big surprise, right? 

ARTHUR AIDALA, FMR. PROSECUTOR:  No, it was doomed from the beginning. 

Under the new McDonough (ph) ruling by the courts, it‘s a two-prong test.  First, the defense would have to go over the hurdle that he intentionally lied just to get on to the jury.  And then, that what he lied about would have given cause for that juror to be excluded from the jury pool automatically by the judge, not even at the request of either of the sides.  So, it‘s a very, very high burden and since the courts have instituted this McDonough (ph) test, not one case in the second circuit has been overturned.

ABRAMS:  Joel, this was a real uphill battle, right? 

JOEL ANDROPHY, CRIMINAL DEFENSE ATTORNEY:  It is a uphill battle, but the problem that I see is that the judge didn‘t give the defense a hearing.  The judge made some conclusions that they could not prove that there was bias on the part of this juror.  The court speculated what bias could be or could not be.  Why not hold a hearing for a couple of hours and see what the actual bias was?  Let the defense have an opportunity to probe the juror with regard to his past civil...

ABRAMS:  Because you don‘t want to start bringing jurors—this is why—because you don‘t want to start bringing jurors in to face the judge after the case is over—look, if they want to charge him with perjury, I said this before.  I support that.  If there is clear evidence that he lied, I‘d support the prosecutor charging him with perjury.  If they are not going to do that, then starting to bring in jurors after the verdict to determine what did you mean, what did you say?  I mean what evidence is there that there is bias? 

AIDALA: And also Dan...

ABRAMS:  Hang on.  Let me let Joel respond. 

AIDALA:  Joel, I‘m sorry.

ABRAMS:  Go ahead.

ANDROPHY:  That‘s a catch 22.  You are asking me now to speculate what‘s in this guy‘s mind.  I can‘t speculate.  Having little mini trials, I agree with you, under most circumstances isn‘t appropriate.  But when they made the allegations and the court even found that there was a lack of candor, give an opportunity.  What the court was more concerned about with in the whole opinion was probing jurors versus making sure that Martha Stewart had a fair jury...

ABRAMS:  No, no...

ANDROPHY:  ... and she didn‘t have one.

ABRAMS:  ... no, no, wait.  Here‘s—let me read some more of the judge‘s opinion.  Let‘s start at number five here. 

“Hartridge‘s suggestion that the verdict may persuade powerful people to abide by the law is an accurate characterization of the general deterrent effect that Stewart‘s conviction may have—not long—I can‘t read what I have here --  not evidence of a long held personal grudge against Stewart.” 

The judge goes on.  “Defendants have not offered any evidence that Hartridge possessed a negative attitude towards Stewart before he heard the evidence presented in this case.”

That‘s the problem Joel.

ANDROPHY:  Well the problem is you don‘t—in criminal cases, and I think everyone needs to understand, in criminal cases, you don‘t have depositions.  You don‘t take—you don‘t have this full discovery of what‘s going on during the course of a case.  Obviously, in civil cases, you don‘t interrogate jurors.  But when a juror like this lies, when the court finds that the juror was not forthcoming, when the juror expressed lack of candor, you have to give the defense an opportunity to probe and explore.  Otherwise, everyone would be guessing.  Why not give a two-hour hearing?  Why not find out why?  I would be speculating now on the issue of bias.  Give a hearing...

ABRAMS:  All right...

ANDROPHY:  ... and then close the issue. 

ABRAMS:  But Arthur, the big issue that the judge seems to have thought that Hartridge lied about was the fact that his son was convicted of a crime and when asked the question in essence, do you have any family member, et cetera, who has ever been charged or convicted of a crime, he said no. 

AIDALA:  Listen, this was the biggest case in the country, if not the world at the time.  He is in a public courtroom with the media sitting there.  That‘s a very private question and it‘s a very...

ABRAMS:  ... no, wait a second...

(CROSSTALK)

ABRAMS:  ... lie on the questionnaire.  Is the questionnaire that he is filling out...

AIDALA:  But it‘s going to be...

ABRAMS:  No, it hasn‘t been released.  We still don‘t have the questionnaires. 

AIDALA:  OK.  It‘s still something that under the case law, it has to be—he has to be lying just so that he gets on the Martha Stewart jury.  And that is the type of question and in the one case that they did reverse on, they did find that the juror bias was so overwhelming they did grant a new trial, showed that the person lied—the only reason why the woman lied to get on the jury was to get on the jury.  And here, lying about your son, something—you know, a juror saying hey, what do they need to know about my son for?  You can‘t make the argument that that‘s the only reason...

(CROSSTALK)

AIDALA:  ... that he just lied to get on the jury. 

ABRAMS:  And Joel...

ANDROPHY:  Dan, what kind of message are you sending...

ABRAMS:  ... Joel, let me read what the judge said...

ANDROPHY:  Yes.

ABRAMS:  ... about this specific issue.  If anything, a prospective juror with a family member who had been convicted of a crime would more likely be considered bias in favor of criminal defendants. 

ANDROPHY:  No question.  That is...

ABRAMS:  So she got a bonus.  She got a bonus by getting this guy on the jury. 

ANDROPHY:  Right.  But on the other hand, look at it this way.  If his son were convicted of something, he may feel that somebody of Martha Stewart‘s stature also should be convicted.  We don‘t know—what the judge has basically said and announced to the country, basically for jurors is it‘s OK not to be honest, it‘s OK, this gentleman could have raised his hand and said judge, let‘s approach.  I have a simple answer here.  I need to explain some personal issues that are embarrassing.  That could have happened.  The press never would have known about it, but the lawyers would have had an opportunity to evaluate it.  You can‘t send a message to jurors that it‘s OK to do this.

ABRAMS:  But you know what the legal standard is. 

ANDROPHY:  I do.

ABRAMS:  The legal standard is whether this juror would have been dismissed for cause.  Meaning, that there would have been a clear reason to kick this juror out of the jury pool and never allow either side to even evaluate...

(CROSSTALK)

ABRAMS:  ... the prospective juror and the defense hasn‘t survived the burden. 

ANDROPHY:  But what would have happened at trial if this person answered those questions and didn‘t want the issue to be publicly displayed, then the lawyers would have gone back into the chambers with the judge and then probed the juror with regard to these issues why—how they could have affected him during the course of the trial.  They would have had an opportunity in the voir dire, the jury selection process...

ABRAMS:  Yes...

ANDROPHY:  ... they ask the very questions that the judge should allow...

ABRAMS:  That‘s right.

ANDROPHY:  ... the questions to be asked right now. 

ABRAMS:  And in a perfect world that would have happened.  The question is now that the verdict has been reached unanimously, after a trial, do we go back and revisit the verdict?  And the answer as a legal matter is no. 

UNIDENTIFIED MALE:  No.

ABRAMS:  All right, Joel and Anthony, thanks a lot for coming on. 

Appreciate it.

ANDROPHY:  Thank you.

ABRAMS:  Coming up, the Iraqi prison abuse controversy, why many of you are tired of hearing all those involved passing the buck.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, major insurers have been denying life insurance to anyone who has or will travel to Israel.  Why I say using the insurer‘s rationale, the numbers, it makes no sense.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—irrational fear creeping into the insurance business.  A business that is supposed to be based solely on the numbers.  Many major insurers have been denying life insurance to anyone who has or will travel to Israel even though by the numbers, Israel is a whole lot safer than most major U.S. cities.  Now, there‘s a bill pending in Congress to prevent that and a lawsuit against the insurers pending in the courts. 

Generally, insurance companies do and should be able to make determinations based on risk, not politically correct standards.  They—quote—“discriminate all the time” using models based on gender and age, et cetera, to assess that risk.  And while one might expect to travel to Israel is just downright dangerous, the numbers just don‘t bear it out.  From September 2000 when the Intifada began until today, 667 civilians killed in Israel, including the occupied territories in terror attacks.  That accounts for suicide bombings, shootings, stabbings, car bombs, even rocks, and only a fraction have been outside the disputed territories. 

And yet, that is still far fewer than were murdered in just New York, Chicago, and Los Angeles in only six months between January and June of 2003.  Israelis on the whole have a higher life expectancy than Americans.  Deaths from accidental injury are much higher in the U.S. than in Israel.  We shouldn‘t need legislation or lawsuits.  The insurance companies should step up to the plate and look at the one factor they always use.  They always ask us to consider—the numbers. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  This week seven military officials disciplined for alleged abuse of Iraqi prisoners.  Many of the servicemen and women arguing they weren‘t trained on how to treat prisoners of war under the Geneva Convention. 

Ray who retired from the military says not good enough.  Quote—“I find it difficult to believe that any human being needs any type of training to understand how prisoners are to be treated.  There comes a time in every human act where you have to ask yourself the old question, what‘s wrong with this picture?  Who ordered them to enjoy what they were doing?”

Lawrence in Missouri questions the leadership in Iraq.  “If the officers and commanders knew what was going on, they are as guilty as the enlisted men and women.  If the officers and commanders did not know what was going on, where were they?  Were they spending too much time in an air conditioned officer‘s club?”

And from Belleville, Illinois, Sherry Sharos.  “Let me get this right.  It is OK to kill enemy combatants, but not to humiliate them?  The Arab world is proud of the abuse on American civilians.  America is disgusted at such abuse and feels we should hold our own accountable.  This I‘m afraid does not apply to other countries.”

And last night in my “Closing Argument” I named three recent high-profile cases where the defendants were convicted of hindering an investigation but not charged or convicted for the underlying crime.  I said prosecutors shouldn‘t make a habit out of pursuing these cases if they don‘t believe the person would be or should be convicted of the actual crime. 

Christiaan Kelly from Boston.  “The problem is that if the defendants had not obstructed justice, example, by tampering or destroying evidence, it is very possible that the prosecutors would have had the evidence necessary for a conviction for the underlying crime.”  Fair point, Christiaan, but possible is not enough. 

Thanks for watching.  I will see you tomorrow.  That‘s the address for “Rebuttal”.  See you tomorrow.

END   

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