updated 5/7/2004 12:25:30 PM ET 2004-05-07T16:25:30

Guests:  Tim Susanin, Togo West, Jr., Raymond Tanter, Yale Galanter, Joe Episcopo, Dean Johnson

DAN ABRAMS, HOST:  Coming up, more Iraqi prison abuse photos and for the first time an apology from President Bush.  How high up the chain will the punishment go? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Why is it rare for senior military seniors to be punished for the acts of the rank and file?  And yet, when it comes to white-collar crime, the government is going after the company‘s CEOs, even if they had no direct role in the wrongdoing.

Tabloid headlines say O.J.  Simpson confesses, but if he didn‘t and he is innocent, shouldn‘t he sue the tabloids?  We‘ll ask his lawyer. 

And why is California Governor Arnold Schwarzenegger getting involved in the Scott Peterson case? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  First up tonight, as the Bush administration tries to contain the growing scandal over prisoner abuse in Iraq, today, new pictures published in “The Washington Post”.

NBC‘s Tracy Potts has more.

(BEGIN VIDEOTAPE)

TRACY POTTS, NBC NEWS CORRESPONDENT (voice-over):  Four new pictures appear in today‘s “Washington Post.”  On the front page, an Army reservist holding a naked Iraqi prisoner by a leash and inside, two naked men handcuffed to prison bars and at least three more bound together on the floor.  Reaction from a Vietnam War veteran on Capitol Hill. 

REP. JOHN MURTHA (D), PENNSYLVANIA:  They ought to close that prison.  They ought to burn that prison.  They ought to destroy that prison is what they ought to do.  That‘s the first step they ought to do.  That would impress the Arab world we‘re serious. 

POTTS:  President Bush is said to be upset seeing last week‘s pictures for the first time in the media.  White House aides say he privately rebuked Defense Secretary Donald Rumsfeld. 

UNIDENTIFIED MALE:  Plans and partly due...

POTTS:  As Rumsfeld prepares for last minute testimony before a Senate committee tomorrow, pressure is mounting against him.

REP. JIM MCGOVERN (D), MASSACHUSETTS:  Donald Rumsfeld needs to resign as secretary of defense and if he does not do so, President Bush should fire him. 

POTTS:  The White House says Rumsfeld‘s job is safe and today for the first time, President Bush, meeting with Jordan‘s King Abdullah, apologized for the soldiers‘ behavior. 

GEORGE W. BUSH, PRESIDENT:  I told him I was sorry for the humiliation suffered by the Iraqi prisoners and the humiliation suffered by their families. 

POTTS:  It‘s an embarrassing diplomatic snafu that could affect coalition support abroad...

(SHOTS)

POTTS:  ... and elections here at home. 

Tracy Potts, NBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  All right, today, so we ask, why does it seem the standard is so different for military leaders than for corporate CEOs?  From Tyco to Enron, WorldCom to Adelphia, government officials, corporate prosecutors, the public demanding accountable from the CEOs of companies, even if they weren‘t directly responsible.  Many arguing that CEOs should take responsibility for corporate wrongdoing. 

(BEGIN VIDEO CLIP)

BUSH:  We have got thousands of citizens who own shares of publicly held companies, many in pension plans, mutual funds, a lot of them director ownership.  And this country must hold corporate CEOs of publicly held companies to the highest of high standards. 

(END VIDEO CLIP)

ABRAMS:  All right.  But that idea of holding the chief executive

responsible doesn‘t necessarily seem to be the case when it comes to the

military.  As our discussion on the program last night made clear, none of

our guests seemed to think that anyone above immediate supervisors would be

held or should be held responsible for the alleged abuse of Iraqi prisoners

by U.S soldiers. 

Now historically that seemed to be case with military courts.  The highest-ranking officer, for example, who faced the military trial for the My Lai massacre where up to 500 innocents may have been killed was only a captain.  So why is it?  We ask why do we treat the military differently from a corporation?

Joining me to answer that question, former JAG attorney, former federal prosecutor and currently a white-collar defense attorney, Tim Susanin.  Thanks a lot for coming on the program.

All right, so what is the overriding answer to that question?  Why do we seem to treat the CEO  differently from the head of the defense department or even the president? 

TIM SUSANIN, FORMER JAG ATTORNEY:  Right.  Well, two reactions.  First of all, you use the word accountability and that depends on whether we‘re talking about criminal liability, political ramifications and I‘m sure we‘ll get into it in a few minutes, I think there will be ramifications to the secretary of defense here.  But I think the real key is when you focus on financial certifications by a publicly held company, Dan, you are really talking about a focus at the top, the CEO and the CFO. 

And on the other hand, in this military scene that we‘re talking about, you‘re looking at enlisted people on the ground who in this case, along with civilian contractors are actually running the prisons.  They are overseen by mid-level officers, who are overseen by commanding officers, who are all overseen by structure back at the Pentagon thousands and thousands of miles away.  So you are really talking about a much more densely populated structure when you talk about responsibility up the chain in this military prison scenario than when you‘re talking about a CEO and a CFO who‘s certified.  Hey, the numbers that we‘re putting out there for our public and our shareholders...

ABRAMS:  Yes, but see, I think that the public and prosecutors are saying—and the president even is saying, it‘s not just about signing the paper.  The bottom line is we‘re saying when it comes to corporate America is we‘re holding you Mr. or Mrs. CEO responsible for what happens to your company.  If you end up defrauding lots of people, you are going to end up being responsible even if they could say, you know what, I didn‘t know.  We generally say I‘m sorry, that‘s not a good enough answer. 

SUSANIN:  Right.

ABRAMS:  And not only are they held responsible sort of politically, it seems now that we‘re holding them responsible legally, should be there be a way to reprimand—let‘s not talk about putting someone in jail or anything like that when we‘re talking about high-level military, but in terms of reprimands, should they be getting the same sort of reprimands that a corporate CEO  would get? 

SUSANIN:  Well let‘s look at this a little bit more closely, Dan.  In a situation like the CEO, who better than the CEO or the CFO has the ability to amass all that financial information and put it out there.  You are certainly not going to go to somebody—an accountant in a subunit...

(CROSSTALK)

ABRAMS:  They can‘t review all—a company like G.E., which is huge, they can‘t review each and every decision.

SUSANIN:  Right.  And that‘s why they don‘t have criminal liability unless they had knowledge that something was suppressed, let‘s say, from their financial quarterly reports.  However, when you look at it on the other side, how are we to make someone like Donald Rumsfeld responsible for potentially criminal behavior on the part of hundreds of thousands of men and women around the world?  It just doesn‘t make the sense to say you‘re the secretary of defense, therefore, when someone so no matter how far flung from this continent and no matter how far removed from your chain—immediate chain of command commits a criminal act, we‘re going to hold you liable. 

ABRAMS:  And when I say liable, again, I‘m not talking about criminally liable holding Donald Rumsfeld...

SUSANIN:  Right, letter of reprimand...

ABRAMS:  Exactly.

SUSANIN:  ... maybe a demotion...

ABRAMS:  Because it just seems to me that in this day and age we are saying, CEOs are responsible.  If you signed the paper, you didn‘t sign the paper—you know if there was sort of massive fraud at a very low level, at G.E., for example, a huge company, you know I‘m paid by G.E.  I assume that the CEO of G.E. would have to a certain level accountability. 

SUSANIN:  Well, let‘s take this out of the context that really heats this story up.  Let‘s go to peacetime.  We have military members all the time—as we were talking before we came on, I was in the JAG Corps and defended service members who were court-martialed and prosecuted at a different point.  We have the types of things going we‘ve seen here going on all the time and much worse, frankly.  Service members year in and out unfortunately committee rape and are prosecuted for it, commit homicide and are prosecuted for it...

ABRAMS:  But if there was a systemic problem with it, wouldn‘t you agree that that‘s different?  I mean I agree with you, an isolated incident...

SUSANIN:  Right, we never look up the chain and say gee this...

(CROSSTALK)

SUSANIN:  ... you know secretary of defense should be removed. 

ABRAMS:  Right.

SUSANIN:  Exactly.  Even where you have let‘s say a...

ABRAMS:  ... tail hook (ph), for example, right?  I mean that was a case where the responsibility went up the chain of command, didn‘t it?  I mean, wasn‘t that a case...

SUSANIN:  Yes, that‘s right.  But you know I would submit that that is what you are seeing here.  I mean from what we‘re hearing in the reports, these investigations, I think they‘re anywhere from 20 to 30 of them have been going on since January.  Six individuals have been referred, charges have been sent to a preliminary hearing. 

ABRAMS:  Yes.

SUSANIN:  And I think as you know, we have, I think almost 10 more senior people, that is more senior than the folks we see in these photos running the prisons, have actually been relieved...

ABRAMS:  Yes.

SUSANIN:  ... or received a letter of reprimand. 

ABRAMS:  Yes, but, again, that‘s different.  I—it just seems to me that if we‘re going to have a government that is demanding accountability from the people in charge, the government then has to act that way as well.  But I understand your point and Tim Susanin, thanks a lot...

SUSANIN:  Thanks for having me Dan.

ABRAMS:  ... for coming on.  Appreciate it.

Coming up, despite all the criticism Secretary Rumsfeld says as soon as the prison abuse was reported, the system worked to deal with it.  We‘ll look back at the timeline. 

Plus, Governor Schwarzenegger makes an appeal to the California legislature on get this, the Scott Peterson case?  We‘ll get a live report from the courthouse. 

And a tabloid report says O.J. Simpson‘s daughter overheard him confessing to killing Nicole Brown Simpson and Ron Goldman.  All right, so if he‘s innocent, will he sue?  We‘ll ask his lawyer.

What do you think?  Your e-mails abramsreport@msnbc.com.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, an investigation timeline may be Secretary Rumsfeld‘s best defense when it comes to the Iraqi abuse allegations.  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DONALD RUMSFELD, SECRETARY OF DEFENSE:  The system works.  The system works.  There were some allegations of abuse in a detention facility in Iraq.  It was reported in the chain of command.  Immediately, it was announced to the public.  Immediately an investigation was initiated.  Six separate investigations have been undertaken over a period of months since January. 

(END VIDEO CLIP)

ABRAMS:  Defense Secretary Donald Rumsfeld saying the Department of Defense conducting a thorough investigation into the allegations of abuse of Iraqi prisoners.  It is important to note this investigation, as he points out, was launched months ago, well before all the pictures were made public.  Secretary Rumsfeld has laid out the following timeline.  Let‘s go through it. 

The alleged abuse believed to have occurred in the fall of last year.  On January 13, Specialist Joseph Darby reports the allegations to military law enforcement.  A day later, the Army begins a criminal investigation.  Two days after that, CENTCOM issues a press release that says an investigation has been initiated into reported incidents of detainee abuse at a coalition forces detention facility.  At the end of the month, Major General Antonio Taguba appointed to conduct an administrative probe of procedures at Abu Ghraib.

In February, the secretary of the Army orders an assessment of the doctrine and training for detention operations within all of CENTCOM.  The next month the Army probes reserve training, especially the training of military police and intelligence.  On March 20, the Army announces criminal charges have been brought against six soldiers in the probe.  The following month the head of Army intelligence asks an officer to investigate military intelligence practices in Iraq. 

Now, on the other side, some human rights groups point out that they were calling for changes well before Darby came forward with these allegations and others have questioned why details of the allegations were not brought up to Congress before the photos were broadcast, and yet others question why General Myers, he really admitted that he had not read General Taguba‘s report even this weekend.

Now, has the investigation proceeded as we would have hoped?  Joining me now is Raymond Tanter, former national security advisor to President Reagan and former secretary of the Army under President Clinton, Togo West.  Thank you both very much for joining us. 

All right, Secretary West, let me ask you first.  I mean just in terms of the investigation and how this has proceeded, has this gone exactly the way that one would have hoped or have they—could they have done more than they‘ve done? 

TOGO WEST, JR. FORMER SECY. OF THE ARMY:  In terms of the investigations, I think they have done exactly what you would have hoped.  In one respect, the system worked.  In another respect, of course it didn‘t.  We hope this system doesn‘t produce these aberrations in the first case and that they are aberrations.  But in terms of reporting, reacting, each level doing its investigations, that‘s the way it‘s supposed to work.  Incidentally, not mentioned in the timeline, a general officer lost her position. 

ABRAMS:  And what—you mean Brigadier General Karpinski? 

WEST:  Yes. 

ABRAMS:  Yes.  All right.  Mr. Tanter, I mean it does seem that strictly on the issue of how the investigation has proceeded, that things went as one would have hoped? 

RAYMOND TANTER, FMR. REAGAN NAT‘L SECURITY ADVISER:  Dan, the uniform code of military justice doesn‘t call for heads to roll at the top before the investigations have occurred.  Rather, chapter 6 says on pretrial procedures, calls for—explicitly calls for investigations prior to putting charges forth with respect to a court martial. 

ABRAMS:  But...

TANTER:  What‘s the rush to judgment, Dan?

ABRAMS:  ... Mr. Tanter, but that‘s a very legalistic answer.  I mean look, we can also just look at—let‘s not even assume that a particular soldier is guilty and should serve time.  But we can make a broader judgment, can we not, that by looking at these pictures alone, there were major problems, major mistakes and it happened more than once.  Is that fair? 

TANTER:  Well, there‘s no question that there were major mistakes.  There were horrendous crimes committed.  At issue is whether we‘re going to follow proper procedure.  We have a procedure set.  This is a nation of laws, not of great radio and television stations saying that the heads ought to roll on 1600 Pennsylvania Avenue before November 4.  There is an election coming up. 

ABRAMS:  Right.  But forget about—I‘m not talking about President Bush.  I mean let‘s put President Bush to the side here for a moment and let‘s just talk about you know Secretary Rumsfeld, for example.  I agree.  Look, this investigation seems really to have gone as planned and I think that‘s a very fair point and I think it‘s an important point to make because it‘s one of the key issues when something like this happens.  But it is also fair to say, I think at this point that you can still make assessments that could lead someone like Donald Rumsfeld to lose his job.  I‘m not saying that he should lose his job, but I‘m saying that it‘s not unfair.  You‘re saying basically that we shouldn‘t even be talking about that right now because court martials haven‘t been finished.  And I‘m saying I don‘t think you need to have the court martials to be able to make a broad statement that there were major problems and what was happening in these prisons in Iraq. 

TANTER:  Dan, even you as a member of the fourth estate, a member of the press, you have freedom of speech.  I would not deny that.  Go ahead and talk about whether Rumsfeld‘s head should roll.  But it doesn‘t make any sense given the fact that a criminal investigation has been set up, prison procedures investigations worldwide, detentions, operations, military intelligence, all these investigations are going to converge.  At that point we‘ll decide about the chain of command and who should—whose head ought to roll. 

ABRAMS:  Secretary West, I don‘t know.  Do you agree with that? 

WEST:  Well, I‘m not prepared to call for Secretary...

ABRAMS:  Right.

WEST:  ... Rumsfeld‘s head just yet. 

ABRAMS:  Right.

WEST:  But I will say in support of your analysis, Dan, this.  In the military, the rule has always been that accountability for the actions of your subordinates is a key element of command.  Commanders get removed in the Navy all the time when their ships just barely touch another ship.  Generals are held accountable for the units under them.  And so that kind of accountability, sure, it can fleet right up to the secretary of defense.  He is held accountable...

ABRAMS:  But...

WEST:  ... for what happens under his command.

ABRAMS:  But it seems that in the past, Secretary West, that the very senior military officials have not been held accountable.  For example, and you know, again, when I bring up the comparison of My Lai, I‘m not bringing up the comparison for the sake of somehow comparing what happened.  I‘m only doing legal analysis in terms of how the proceedings went in the case.  In that case, again, massive atrocities and yet, no one above the immediate people involved seemed to have paid a price. 

WEST:  Well, there were several allegations and instances, more than one instances of atrocities raised.  I was a judge advocate myself serving on active duty during the time.  There is a whole question of the (UNINTELLIGIBLE) division, the commanding general of that division who lost his position.  I mean the military have always held their commanders responsible and were accountable well before the current craze for holding CEOs accountable. 

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

TANTER:  Well, the commander-in-chief  is at 1600 Pennsylvania Avenue. 

Let‘s face it.  There are political—this is a political season, Dan and I would say that the calls for Don Rumsfeld‘s head to roll are really calls for President Bush to be defeated and I don‘t think that should happen. 

ABRAMS:  All right, well, we shall see.  Raymond Tanter and Secretary Togo West, thank you very much for coming on.  Appreciate it.

TANTER:  It‘s a pleasure.

ABRAMS:  Coming up later, “Your Rebuttal” on the Iraqi prisoner photos and my “Closing Argument”—why making excuses or deflecting blame in connection with the scandal does not help our military or our country.

Up next, why is California Governor Arnold Schwarzenegger getting involved in the Scott Peterson case?  A live report up next.

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  Now to the Scott Peterson case where believe it or not the governor, Arnold Schwarzenegger has stepped in, asking that the state of California pay for the double murder trial.  Legislature turned him down, voting unanimously against the proposal.  And opening statements are slated to begin in about two weeks, but before then a very important hearing on whether the trial gets moved again, to Los Angeles.  That hearing is scheduled for this coming Tuesday. 

Let‘s go now to outside the courthouse and Edie Lambert from NBC affiliate KCRA.  Edie, so let‘s start with the issue of jury selection, almost over, right?

EDIE LAMBERT, KCRA CORRESPONDENT:  It is coming to the very end.  In fact, as of today, Dan, 1,000 people have now come through court and it is pretty stunning to see how many of them have been turned away.  Ninety-three percent of the potential jurors have been dismissed and I can show you why so many of them are just not making the cut. 

First of all, of the 1,000 people who have come to court and filled out their jury questionnaires, two-thirds had hardships.  Six hundred and eighty-three of them could not serve on a five-month trial.  That left about a third who were scheduled to come into court for questioning in the second round of jury selection.  Two hundred and fifty-one of them either opposed the death penalty, already think Scott Peterson is guilty or they, too, ended up with a hardship.  So tonight that leaves 66 people in the final jury pool and the judge needs at least 70.

Dan, as you mentioned hanging over all of this right now is the defense request to move the trial again, this time to Los Angeles.  That will be taken up by the judge on Tuesday.  But many of the people who have been dismissed from this jury pool do believe that Scott Peterson can get a fair trial here. 

(BEGIN VIDEO CLIP)

JULIE BOWMAN, DISMISSED JUROR:  I would hope that everybody is like me, where they get in that courtroom and they put everything that they have read aside and they just start fresh.  I really think he can. 

(END VIDEO CLIP)

LAMBERT:  Another question still hanging tonight is who pays for this long, expensive trial and that‘s where our governor comes in.  Arnold Schwarzenegger asked the state to pick up 100 percent of the cost and that was shot down by a legislative panel by a vote of 5-0 because the cost is apparently greater than they can even calculate right now.  And as you probably know, our state is facing a shortfall in the billions of dollars. 

Meantime, because it has been so tough to qualify enough potential jurors, the judge has called in an extra 150 people to court.  They will be coming through for questioning next week and the judge is hoping to seat the jury coming up on May 20.

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

ABRAMS:  Edie, so who pays?  I mean if the California legislature—it becomes a county, who has to pay for it?

LAMBERT:  It is a mishmash of expenses Dan.  The state will certainly pay some of the expenses.  The question here that the governor was fighting for was to pay for 100 percent of the expenses.  So it‘s going to be divvied up between San Mateo picking up as little as possible for them.  Stanislaus County, where this case originated, and then the state picking up more of the cost.  The question now is just who pays what percent.

ABRAMS:  And very quickly, still expecting May 24 for opening statements? 

LAMBERT:  We are still hoping for that.  The judge, you know, as you know, had to postpone opening statements one week and he‘s hoping he can hold firm at that. 

ABRAMS:  Edie Lambert, thanks a lot.

Coming up, it‘s the cover of the supermarket tabloid.  Quote—“O.J. 

Simpson Confesses.”  We ask, OK, if it‘s not true, is he going to sue? 

We‘ll talk to his lawyer.

And don‘t forget your take on the show.  E-mails abramsreport@msnbc.com.  Please include your name and where you are writing from.  I‘ll read some at the end of every show.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  All right.  Welcome back.  The headline of the new “National Enquirer” says “O.J.  Confesses”.  The article says that according to a family source, O.J.  Simpson‘s daughter overheard her father confess to killing her mother shortly after he was found not guilty and suggests she may have actually seen it occur.  Sydney is one of O.J.‘s children with Nicole.  She was 8 years old at the time of her mother‘s killing.  We want to know if O.J. is innocent, as he claims, will he now sue the tabloid as have the parents, for example, of JonBenet Ramsey and even Gary Condit.  My take, I bet it will not happen.

Joining me now, the man representing O.J. Simpson, Yale Galanter. 

Yale, good to see you.  All right...

YALE GALANTER, REPRESENTS O.J. SIMPSON  It‘s good to see you too Dan. 

ABRAMS:  First let me assume that you say that this article is false, correct? 

GALANTER:  The article is definitely false. 

ABRAMS:  And tell me what‘s false about it . 

GALANTER:  Everything contained in the article is false.  Sydney never told a—quote—unquote—“family source” and O.J.  never made the statements. 

ABRAMS:  All right.  So if that‘s the case, are you going to start filing a lawsuit against “The Enquirer”? 

GALANTER:  No, we‘re not going to file a lawsuit against “The Enquirer”.

ABRAMS:  Why not? 

GALANTER:  So your prediction is correct.  There are a number of reasons.  One is, you know there are two parts to a civil lawsuit.  One is civil liability, which here there definitely would be, and the second is damage.  And the truth of the matter is, is that I don‘t know, as a lawyer, how you would measure damage to O.J.  Simpson or his career at this time.  As you know, he is a public figure.  The liable and slander laws as it affects O.J. Simpson, there would have to be there‘s malice aforethought against him.  And the—you know American Media‘s position is going to be we had a source, somebody called us and told us this was happening. 

ABRAMS:  Right.

GALANTER:  And it would be impossible for me to prove that it didn‘t. 

ABRAMS:  Well, but look, that‘s the defense that they have in all these cases and I can tell you from talking...

GALANTER:  It is.

ABRAMS:  ... to Lin Wood who does a lot of these cases against the tabloids that he has made a lot of money on these kinds of cases, even though the defense is exactly what you said.  I think a more skeptical view is that the reason O.J.  Simpson wouldn‘t want to sue is because it would be real difficult to get back into the facts of the case. 

GALANTER:  Dan, it has nothing to do with that.  It has to do with the fact that Lin‘s clients and my client are in two completely different situations.  My client is arguably the most infamous human on the planet.  And that‘s all that it has to do with.  So, you know he knows and I know that he is fair game by the tabloids, especially at this time period in the next coming weeks up until the 10th anniversary, we‘re expecting these stores to run in all the American Media publications...

ABRAMS:  But...

GALANTER:  ... basically weekly. 

ABRAMS:  But, Yale, as his attorney, isn‘t it your job—again, and I‘m sort of what is clear to you, I‘m sure, sort of exposing what I view is as the inconsistencies in what O.J. does and says, and the bottom line is if he is innocent as he claims, and there is a headline on a major tabloid that says he confessed to a crime that he did not commit, I would think that O.J. Simpson, in addition to searching for the real killers, would be suing “The National Enquirer”. 

GALANTER:  Dan, you know I understand your skepticism.  The problem is that because of his position in the world today, it would be very difficult for us to prove this malice aforethought in slandering him.  That‘s the problem.  The second problem is... 

ABRAMS:  All you have to do is show reckless disregard for the truth. 

I mean that‘s the standard. 

GALANTER:  Hold on Dan.

ABRAMS:  Reckless disregard for the truth.

GALANTER:  How do you measure damage?  And that‘s the real issue here.  How do you measure damage?  It‘s not as if he is reporting for ABC or NBC and is losing his job over this.  How would you measure...

ABRAMS:  The same...

GALANTER:  ... the economic damage by these tabloids reports? 

ABRAMS:  The same way that I‘m sure that John and Patsy Ramsey are going to make a lot of money from suing the tabloids based on what Lin Wood says he will be able to prove were false reports about them. 

GALANTER:  But Dan, listen, I respect Lin and I think he is a great lawyer, but his—Patsy and John Ramsey are not O.J. Simpson.

ABRAMS:  I understand that...

GALANTER:  O.J. Simpson...

ABRAMS:  But I‘m asking you as a legal matter...

GALANTER:  O.J. Simpson is in a totally different ballgame. 

ABRAMS:  All right. 

GALANTER:  Pardon me.

ABRAMS:  ... I‘m not comparing—and just so I‘m clear to my viewers, I‘m not in any way comparing the sort of alleged responsibility of O.J.  Simpson versus John and Patsy Ramsey.  I‘m strictly talking about the legal issues surrounding when people sue a tabloid. 

Let me get in some of our other legal panel here and see if they are as skeptical as I am about this—former prosecutor Dean Johnson, criminal defense attorney Joe Episcopo.

All right.  Joe, look, you know my take on this is the reason Yale doesn‘t want to sue and the reason O.J. Simpson doesn‘t want to sue is because the danger for him of getting into a trial where ultimately the facts would come up again is just not something that O.J. Simpson can do because there are a lot of problems with the facts. 

JOE EPISCOPO, CRIMINAL DEFENSE ATTORNEY:  No.  There is no money to be won here, Dan, and that‘s the problem.  Who is going to invest in this lawsuit?  Who is going to take that loss?  Why would a lawyer spend his money on a case where here is not going to win anything and...

ABRAMS:  Why isn‘t he going to win anything?  Wait a sec.  If O.J.  Simpson is innocent, let‘s assume for a moment that O.J. Simpson is innocent, all right.  If O.J. Simpson is innocent and this magazine is saying O.J.  confesses, OK, I did it, so what?  There is money to be won, period. 

EPISCOPO:  No, there isn‘t. 

ABRAMS:  Why? 

EPISCOPO:  Because you can‘t prove it.  You can‘t measure the damages. 

He hasn‘t lost a job.  He hasn‘t lost anything. 

ABRAMS:  He has lost reputation.  What are you talking about?

EPISCOPO:  No, his reputation is already ruined.  How—I mean come on, let‘s face it.  He‘s one of the most despised people around. 

ABRAMS:  That may be the case, but there are other people who have either falsely accused or have been sort of torn through the media.  I mean you know Gary Condit had his reputation smeared.  You know there was—he apparently had an affair with Chandra Levy.  There is no evidence that, you know, he had anything to do with her disappearance and yet there were suggestions about that.  He got dragged—his name got dragged through the mud like crazy.  Everyone said oh Gary Condit, Gary Condit, and you know, he ended up suing. 

EPISCOPO:  Because he can prove damages.  He has a lot of financial damages.  He was ruined over this.  O.J. doesn‘t have any damages as a result of this slander. 

ABRAMS:  All right, so Dean, the legal position is, O.J. Simpson is held in such low regard in this country that his reputation is literally worth zero. 

DEAN JOHNSON, FORMER PROSECUTOR:  Yes, Dan, that‘s exactly it.  I mean there are so many reasons why as a civil litigator, you wouldn‘t want to take this case. 

ABRAMS:  Oh, I know why they don‘t want to take the case. 

JOHNSON:  Yes, yes, right, right.  But—and one of the reasons, but this is about the third or fourth tier of reasons you get to is that truth is an absolute defense.  So in order to put on the trial...

ABRAMS:  That‘s what I‘m saying.

JOHNSON:  ... you‘d have to put on O.J. three and once again in the context of a civil litigation where burdens of proof are very light, you would have to put on all the facts of the O.J. murder and O.J. doesn‘t want that to come out.  But that‘s only a tertiary reason for rejecting this case.  There‘s so many reasons...

ABRAMS:  And I assume that if he won, though, Yale, the money would go to the Goldmans and Browns anyway, right? 

GALANTER:  Well that‘s true.  I mean if there was a major judgment.  But, Dan, I‘ve got to tell you and I would tell you, my thought process has nothing to do with whether or not it would be reopening the can of worms.  To take this story, there are only three people that live in the house.  There is Justin, Sydney and O.J.  So there were no family sources.  I mean we know that, but the truth is that when you go to court, there has got to be a measure of damage. 

ABRAMS:  Yes.

GALANTER:  And with O.J. Simpson that would be very, very difficult to prove. 

ABRAMS:  Yes, I don‘t know...

GALANTER:  And it...

ABRAMS:  Go ahead.

GALANTER:  Dan, I know you are skeptical and most people are but it‘s an expensive piece of litigation and the truth of the matter is, is that the resources he has are better off devoted to other things. 

(CROSSTALK)

ABRAMS:  Go ahead.

JOHNSON:  Yale has made the right decision, but he doesn‘t even have to get to the question that we discussed, which is putting on a response to the defense, namely truth, which is O.J. did it.  You don‘t even have to get to that before you reject this...

EPISCOPO:  You know I disagree with that.  That‘s not the issue here.  It‘s not whether he did it.  It‘s whether he said he did it and someone else said it.  That‘s the issue.  Not whether he did it.  That‘s not the defense. 

ABRAMS:  Well look, that could be part of the defense because again, this is—I‘ve got to tell you, these are very similar headlines to the ones that came up in the Ramsey case that the Ramseys claimed were absolutely false.  And they have moved forward, suing, saying, look, you know we‘re just not going to take it.  It‘s just unacceptable that these tabloids are going to report this about us.  But...

GALANTER:  Dan, let me make a prediction...

ABRAMS:  Go ahead.

GALANTER:  Between now and the middle of June, you will see O.J.‘s face on the cover of American Media publications at least six to seven more times. 

ABRAMS:  And...

GALANTER:  At least six to seven more times.

ABRAMS:  And that‘s—why?  Because he‘s...

GALANTER:  Because it sells magazine.  When American Media puts O.J.‘s face on the cover and has one of these sensational headlines...

ABRAMS:  Yes.

GALANTER:  ... and people are in the supermarket lanes checking out, they pick it up because it‘s very, you know it‘s salacious.  They want to see this type of stuff and they want to read about it. 

ABRAMS:  Yes.

GALANTER:  And their publication numbers go up when they have O.J.

Simpson on the cover...

ABRAMS:  I understand that.  The question is whether it‘s true or not. 

I mean that‘s—you know and I—you‘re saying it‘s not true and...

GALANTER:  Of course it‘s not true. 

ABRAMS:  Well, you know...

GALANTER:  Listen, right now Sydney is getting ready to go off to college...

ABRAMS:  Yes.

GALANTER:  Her relationship with her father is extraordinary good. 

They are extraordinary close...

ABRAMS:  You know—all right—let me—just for that point, I‘ve got to play this piece of sound which is Sydney...

GALANTER:  OK.

ABRAMS:  ... calling 911 last year. 

GALANTER:  Right.

ABRAMS:  Let‘s listen.

(BEGIN VIDEO CLIP)

POLICE:  Miami Dade County Police and Fire.  Can I help you?

SIMPSON:  ... my dad ... (UNINTELLIGIBLE) he‘s such an (EXPLETIVE

DELETED).

POLICE:  This is the police.  How may I help you?

SIMPSON:  (UNINTELLIGIBLE)

POLICE:  I‘m sorry, I don‘t understand what you‘re saying.

SIMPSON:  He told me he doesn‘t (EXPLETIVE DELETED) love me and that none of his kids make him miserable except for me.  That‘s not wrong?  That‘s not like an abuse thing?  That‘s not wrong.  He can say that, no problem?  (UNINTELLIGIBLE)

(END VIDEO CLIP)

ABRAMS:  Yale, the relationship has gotten better since then (UNINTELLIGIBLE)?

GALANTER:  Yes, the relationship was good then, Dan.  I mean your—you know the media people love to play that tape because it is the daughter of O.J.  Simpson.  She doesn‘t say that O.J.  did anything wrong.  She doesn‘t say that O.J. tried to hit other or even O.J. tried to punish her.  She had a fight with her dad.  I mean that‘s a normal teenage thing.  The reason it‘s a media event is because O.J. is O.J. and...

ABRAMS:  No question. 

GALANTER:  ... that‘s the same reason...

(CROSSTALK)

ABRAMS:  I‘ve got to wrap it up...

EPISCOPO:  I agree.  That‘s an unfair shot.  It really is an unfair shot...

ABRAMS:  It‘s an unfair shot...

EPISCOPO:  Come on.

ABRAMS:  ... when is the last time your daughter called 911 on you, Joe? 

EPISCOPO:  But, my daughter has been upset and she‘s said things...

ABRAMS:  Did she call 911?

EPISCOPO:  Well, she didn‘t call 911, of course not. 

ABRAMS:  All right.  What do you mean of course not...

GALANTER:  Dan...

ABRAMS:  If the answer is of course not, then you can‘t say...

GALANTER:  Dan...

ABRAMS:  ... that it‘s a cheap shot on my part to play that tape. 

Anyway, all right...

GALANTER:  Dan, it‘s—listen, I disagree with Joe.  I don‘t think it‘s a cheap shot on your part, but the media in general...

ABRAMS:  All right...

GALANTER:  ... plays that tape because it is O.J. Simpson.  The fact that Sydney was upset with her dad and she had a fight, that‘s a normal every day occurrence. 

ABRAMS:  (UNINTELLIGIBLE) you get the final word on that.  All right, actually we‘re going to thank all of you.  Yale, Dean and Joe, thanks a lot.  Because we‘ve got...

(CROSSTALK)

ABRAMS:  ... a breaking story to report to you coming up.  An American lawyer, no less, has been detained in connection with the Madrid bombing, allegedly connected to al Qaeda.  This is a very serious story.  It‘s coming up in a moment. 

(COMMERCIAL BREAK)

ABRAMS:  Got some news we want to report to you.  An American lawyer detained in connection with the Madrid bombings.  NBC‘s Justice Department Pete Williams joins us now with the details.  Hey Pete.

PETE WILLIAMS, JUSTICE DEPARTMENT CORRESPONDENT:  I guess the best way to say this is that he is being detained in connection with an investigation of the bombing, Dan.  They identify the lawyer as Brandon Mayfield who is now in custody on a federal material witness warrant.  That‘s a method that‘s used to hold people who investigators believe may have information.  No charges have been filed against him and we‘re told he is being questioned now.

But officials confirm that Spanish investigators claim that they Mayfield‘s fingerprints on what they call materials associated with one of the unexploded bombs delivered on a Madrid train in March.  Something first reported tonight on the Web site of “Newsweek” Magazine.  Investigators believe that Mayfield, who is an immigration lawyer, may have done some legal work for a member of what has come to be known as the “Portland 7” (ph).  That‘s a group of men who were charged with plotting to travel to Afghanistan after 9/11 and help al Qaeda and fight with the Taliban, but only one of them actually made and authorities believe that he died there.

Now, neither the Justice Department north FBI has any comment on this case tonight because it is technically under seal as is the case usually with these material witness warrants.  But a former colleague says that because Mayfield did so much legal work, so much immigration work, it‘s not out of the realm of possibility that his fingerprints would be found on some kind of document.  But that doesn‘t necessarily connect him with anything.  But in any event, Dan, Mayfield is the first American to be in any way picked up in connection with the Madrid bombings.  Officials tonight say he has been under surveillance for several days, but we don‘t know how long that lasted Dan. 

ABRAMS:  All right.  Pete Williams, thanks very much. 

WILLIAMS:  You bet.

ABRAMS:  We‘re going to follow this tomorrow, probably do something on it tomorrow night on the program as well. 

Stick around.  My “Closing Argument” and your letters coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why making excuses are deflecting blame in connection with Iraqi prisoner abuse scandal does not help our military or our country.  It‘s my “Closing Argument”, coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument” --  why making excuses for deflecting blame in connection with the Iraqi prisoner abuse scandal does not help our military or our country.  Various media apologists blame placing buts after the description of the horrors at Abu Ghraib.  It was terrible but, what about the four Americans burned in Fallujah.  It was terrible, but the investigation wasn‘t tainted and moved quickly.  It was terrible, but these troop just needed better training and were under immense psychological pressure.  It was terrible, but they have done worse to our troops.  It was terrible, but it‘s being blown out of proportion. 

The apologists claiming that somehow souvenir photo of smiling troop standing over naked and humiliated prisoners needs some context.  This is about numerous incidents of American soldiers behaving in the words of Secretary Rumsfeld un-American.  It needs no context.  We are supposed to be better, more democratic and more humane than—quote—“them,” they meaning the terrorists and other international barbarians out there.  We are trying to create a democratic and peaceful nation in the heart of the Middle East.  We must show we are different.  Comparisons to—quote—

“them” mean nothing. 

Why can‘t we expect the military investigation to move quickly and efficiently?  “The Wall Street Journal” for one seems to think the fact that the investigation into the abuse did not transform into a cover-up is some cause for celebration.  Why were they expecting so little from our senior military officials?  As for the pressure the troops are under, so many veterans have written into this show saying, to blame it on the pressure is an insult to those who endured similar hardship without transforming into criminals.  Now I am not talking about the administration.  The president, the secretary of defense, secretary of state have all recognized the severity of the situation.  No buts, no, you have to put it into context.  What I‘m talking about is coming from a handful of media apologists. 

This nation needs to swallow the nasty tasting medicine in one gulp.  Taking small taste as the apologists seem to be suggesting will only prolong a sickness that must be cured quickly. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  More reaction on the alleged Iraqi prisoner abuse.  Last night we discussed the “just following orders defense” and although military law says it‘s not a legitimate defense, it has worked in the past. 

From Colorado Springs, Colorado, retired U.S. Army veteran Theresa Giarratano.  “There doesn‘t seem to be any ownership of responsibility for these actions, only finger pointing.  Just following orders?  Their facial expressions and the appearance of having a good time in those pictures gives one the impression no one was twisting their arms.”

And Frances B. in West End, New Jersey.  “Those responsible for this mess are claiming they didn‘t like what they did, but they were ordered to.  That might excuse what might hold water—I‘m sorry.  I read that wrong.  That might excuse—that excuse might hold water if they didn‘t take souvenir pictures of themselves doing it.”

From Portland, Oregon, R.A. Bench.  “It disgusts me that people are making excuses such as the soldiers didn‘t have enough training and the soldiers are frustrated by what they have seen done by their comrades.  An eye for an eye is their way.  That is the way of the Muslim extremist, not the way of an  American.  The fact that those cultures condone torture and mutilation is what separates the American soldier from the Iraqi insurgents.”

Yet, some of you seem to be the apologists I‘m referring to in my “Closing Argument”.  Ron Bossert from Tigard, Oregon.  “The pictures reminded me of some drunken fraternity parties in my past.  The action was improper, but destroying our military in retaliation for some old fashion humiliation is a little overt the top.”

You know, Rush Limbaugh made some similar comments today, comparing it to a fraternity ritual.  I must say, I can‘t believe I even have to distinguish between a soldier with the authority of the U.S. government behind it responsible for prisoners and college students who voluntarily subjected themselves to fraternity pranks.  Need I say more on that one? 

From Arlington, Texas, Dennis Shorter has not seen enough evidence yet.  “I did not see whips, racks, thumb screws, et cetera in those photos.  The big question is did we get information important enough to pay the price for getting it?”  Wow! Come on Dennis.

My “Closing Argument” last night—why it makes no sense that many major insurers have been denying life insurance to anyone who has or will travel to Israel.  I pointed out that the number of murders in New York, Los Angeles, and Chicago, from just the first six months of 2003, far surpassed the number of civilians killed by terror attacks in Israel in the past four years. 

Paul Slauerack (ph) from Fort Lauderdale, Florida.  “You missed the point of the insurance company‘s action relevant to travel to Israel.  Sure there‘s more violence in a single city, such as NYC, L.A., Detroit, Newark, et cetera than there is in all of Israel.  In the USA this violence is for the most part, confined to the high-risk population.  In Israel, a respectable U.S. citizen with no high-risk behavior is a high profile target and a high risk.

Actually, Paul, if you don‘t travel to the high risk areas in Israel, it is safe to say—quote—“respectable U.S. citizen” would still be far safer walking in Tel Aviv than walking in New York. 

Matthew Pryce in (UNINTELLIGIBLE) New York.  “I feel that you made a pretty bad analogy.  You compared the 667 deaths in Israel to the numbers piled up in Chicago, New York and Los Angeles.  This is a ridiculous comparison.  Israel has roughly 6.5 million people whereas New York City itself more than doubles this amount.  Love the show, but come on.”

All right, Matthew, how about this?  Chicago alone.  Population just under three million.  Just from January 2001 to June 2003, over 1,600 murdered.  Israel, population, around 6.8 million, more than double Chicago‘s.  Six hundred and sixty-seven killed in terror attacks in almost four years.  And even include Israel‘s murder rate of about 230 a year.  For the past two and a half years of 2001 to June 2003, you still have 1,242 dead, making the country of Israel far safer than the city of Chicago. 

Thanks for watching.  See you tomorrow. 

END   

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