updated 5/13/2004 11:56:48 AM ET 2004-05-13T15:56:48

Guests: Bill Nelson, John Ensign, Kevin Burns, Tim Susanin, Giorgio Ra‘Shadd, Jed Babbin, Sebastian Junger

DAN ABRAMS, HOST:  Coming up, we talk to two U.S. senators who have just seen new, even more disturbing photos and videos of American servicemen abusing Iraqi prisoners. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  What I have seen is disgusting and it is disappointing. 

ABRAMS (voice-over):  The new photos said to be far worse than these.  Now many senators saying they should not be made public.  They would interfere with the criminal prosecutions.  But would it be better for the nation to get them out sooner, rather than later? 

And the terrorists who beheaded Nick Berg claim his death was revenge for the abuse of Iraqis.  But is that just an excuse? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, in a top-secret room in the capital today, members of Congress getting their first look at more photos, even videos of U.S. troops, some of them involved the abuse of Iraqi prisoners at the Abu Ghraib prison in Baghdad.  Over 1,000 new images in all, senators of both parties appalled by what they saw.  Several lawmakers saying some of the photos included sexual intercourse, military dogs snarling at frightened Iraqi prisoners, and even Iraqi women exposing their breasts seemingly upon command. 

Senator Ron Wyden, the Democrat from Oregon, said take the worst case and multiply it several times over.  Most of them agree that these new photographs should not be released in order to protect the pending criminal investigations and trials and to avoid inflaming the situation more. 

I‘m joined now by two U.S. senators who have just viewed the additional photos and videos, Senator Bill Nelson, Democrat from Florida, he sits on the Senate Armed Services Committee and Nevada Republican Senator John Ensign, also a member of the Senate Armed Services Committee.  Gentlemen, thank you very much for coming on the program.  Appreciate it.

So, Senator Nelson, let me start with you.  Can you characterize as best you can the photos that you‘ve seen? 

SEN. BILL NELSON (D), FLORIDA:  A lot of repetition, by the way, with photos that you have already seen in the newspapers.  But additional ones, particularly the videos that were quite disgusting, and you just can‘t believe that this is reflective of American soldiers.  There was one scene where it was that cellblock.  You could count, oh, probably seven or eight soldiers there.  And I‘ll tell you, if there were that many in that scene that you‘ve already seen in the newspaper of the clump of people tied together naked, that many Army privates involved, then it‘s got to be up the chain of command that somebody has been directing this.  So I think we‘ve got to get to the bottom of it and we‘ve got to get it behind us. 

ABRAMS:  Before—Senator Ensign, before I get to sort of what we do now, did the videos also involve abuse? 

SEN. JOHN ENSIGN ®, NEVADA:  The graphic nature of all of the images that we saw were very disturbing today.  I mean we saw things that Senator Nelson said were some of the same things you‘ve seen.  But we also saw much worse.  We saw things that were frankly, very difficult to tell whether they were inside the prison.  But the violence that was committed against some of these people, whether they were Iraqi prisoners, you know, it‘s impossible to tell based on the context.  But certainly they were very violent acts perpetrated against these people, and because they‘re not in context, it‘s impossible to tell, you know, who did the actions to them.  But they were much more disturbing than anything that has been shown to date in the media. 

ABRAMS:  All right.  Senator Ensign, so what happens now?  I mean do you think that these new images should be all made public now, put it out there, get it behind us, or hold them—hold off? 

ENSIGN:  Well, if you could get them out without jeopardizing the investigation and the trial from a fighting the war standpoint, it would probably be the best thing that we could do.  But we do not want to compromise the prosecution of the cases.  That would be the worst-case scenario.  You know, in the short run we think it would be best for the country to get all the photos, get it out, get it done with.  But if that, in the long run, compromises prosecuting who is guilty in this case, that would be the worst-case scenario.  So there are certain rights that have to be protected under the Privacy Act and we have to respect that.  But at the same time, these photos are probably going to be leaked, and, you know, instead of dribbling it out, it would be best, I believe, for it to all come out as soon as possible. 

ABRAMS:  And we‘ll talk about the legal issues in our next segment with a couple of lawyers.  But let me just follow up very quickly on the issue that you just said, and that is about—that it would be best for the nation.  I mean isn‘t there an argument to be made that if it‘s the best thing for the nation, that that may actually trump, in terms of importance, how we should act now and say criminal investigations are very important, but in this particular case it‘s so important to the nation that we‘re going to have to take a chance that it may impact in a small way, in one way or another, some of these criminal prosecutions? 

ENSIGN:  Well, let me clarify what I said.  It would be best in the short term for the nation.  But in the long term, if we end up compromising the investigations and the trials and we end up losing the trials, then that would be worse for our country in the long run.  And the difference between us and those people who beheaded the American is that we follow up.  We find out who did what to whom and we prosecute them. 

ABRAMS:  ... I know that.

ENSIGN:  We hold them accountable.  We respect the rule of law.  And that‘s what I‘m saying in the long run, though...

(CROSSTALK)

ENSIGN:  ... if we release these photos and that compromises our ability to prosecute, that actually will hurt or war effort worse than the short term...

ABRAMS:  Understood.

ENSIGN:  ... benefit that we get from releasing the photos. 

ABRAMS:  Senator Nelson, what do you think?  Do you think it‘s time to release this? 

NELSON:  Yes.  What‘s in the interest of our country is to stabilize Iraq, and the quicker we can get there, the better.  And you may as well get this behind us.  You know already you‘ve already seen a lot of them that are leaked.  They don‘t know how many of these C.D.s are out there floating around.  So, the likelihood is they‘re going to leak.  My attitude is get them out, let‘s get it over with.  Let‘s move on.  Let‘s prosecute, hold responsible and accountable the people that should, and let‘s get about the business of stabilizing Iraq. 

ABRAMS:  And even if it means at times potentially impacting some of the prosecutions? 

NELSON:  You‘re talking legally now, and I‘m not going to go there. 

ABRAMS:  Yes.

NELSON:  You talk to the prosecutors about that. 

ABRAMS:  Understood and we will do that.  You know, because I‘ve got to tell you, I‘m not 100 percent sure that it would have such an impact.  This is a balancing act.  Senators Bill Nelson and John Ensign, thank you so much for taking the time. 

ENSIGN:  Thank you. 

NELSON:  Thanks.

ABRAMS:  Coming up, is it really true that release of the photos would impact the criminal prosecutions, and should that be the test, or should the question be what is best for the nation?  Our legal military panel is up next. 

And a woman has become a symbol of the scandal speaks out.  Lynndie England says she was just following orders when she posed in the pictures.  She says her supervisors told her she was doing a good job.  We‘ll hear from her and her lawyer coming up. 

And did al Qaeda terrorists use the pictures of the Iraqi prisoner abuse as an excuse to kill American civilian Nick Berg? 

Your e-mails, abramsreport@msnbc.com.  I‘ll respond at the end of the show. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, should the administration release the new photos of Iraqi prison abuse?  A big battle is brewing. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. JOHN WARNER ®, VIRGINIA:  Also, the United States we‘re a nation of rule of law, and it‘s extremely important that we handle these situations consistent with the rule of law.  And by releasing the pictures in the context of the trials in exercising the rule of law and accountability, then I think the United States can‘t be criticized. 

(END VIDEO CLIP)

ABRAMS:  Senator John Warner today, the chair of the Senate Armed Services Committee, after viewing the new photos of Iraqi prisoners at Baghdad‘s Abu Ghraib prison saying he does not think they should be released.  As a legal matter, so we brought our legal panel.  Joining us now, former JAG attorney, Tim Susanin.  He doesn‘t think the administration should be releasing the photos to the public because of the potential impact on the cases, and Kevin Burns, also a former JAG attorney and former U.S. Attorney.  He thinks that the photos should be released. 

All right.  Let me start with you, Mr. Burns.  Why do you think that it‘s OK?  I mean they‘re saying as a legal matter you can‘t release them because it‘s going to impact the criminal cases. 

LT. KEVIN BURNS (RET.), U.S. NAVY JAG:  Well first, let me correct the idea that I was a former U.S. Attorney.  I was an assistant U.S. Attorney, as was Mr. Suzanne.  And—but the reality of the release of the photos is I don‘t think the release is in any way going to impact this trial.  The defense, as I understand it, is a defense predicated on following orders and whether or not the chain of command was implicated in this. 

These service members have already basically, by a large number of international leaders and our national leaders been sort of judged.  So I don‘t think there‘s any additional prejudicial impact that they can face by the release of photographs.  The legal issue would be whether the photographs that are released relate to the issues or relate to the actions that they took.  So I‘m not sure that that‘s really an issue that‘s going to have impact one way or the other. 

If I were defending these service members, the release of the photographs might actually help me for a couple of reasons.  If I was voir diring a jury pool I don‘t want them seeing inflammatory photographs in the middle of a trial.  I would rather have them know to some extent in this particular case what happened and ask them right then and there whether or not that affected their judgment, sort of weeding out those who would be most offended by the photographs themselves and not (UNINTELLIGIBLE) issues. 

ABRAMS:  All right.

BURNS:  So I don‘t think there‘s much to be gained by not—by releasing them at this point. 

ABRAMS:  Yes, Tim, is this just an excuse that they‘re using? 

LT. TIM SUSANIN (RET.), U.S. NAVY JAG:  I don‘t think so Dan.  And I think my friend and former colleague Kevin makes a good point and I think it‘s a close call.  However, I‘d come down the other way.  I‘d play it a little more cautiously and not release them.  And I think that‘s coming from both the prosecutor‘s mindset, as well a defense lawyer.  I think if these pictures continue to trickle out drop by drop over the next several weeks there‘s potential there for tainting the jury pool.  We heard General Kimmitt yesterday...

ABRAMS:  ...isn‘t it a trial by officers? 

SUSANIN:  It is.  It is.  And we heard General Kimmitt say yesterday or two days ago at his press conference that other than the seven or eight involved, the other 135,000 soldiers serving over there are outraged by what happened in the pictures. 

ABRAMS:  Right.

SUSANIN:  There‘s a subliminal suggestion there that a decision has already been made by other service members as to the conduct committed by those who were charged.  We have our first court-martial up next week.  In most cases evidence is not released at the preliminary hearing stage, at a grand jury stage, and I think the prosecutor would hate to give the defense an issue on appeal by handing them a, you know a prejudicial jury pool issue. 

ABRAMS:  Mr. Burns, since both of you view it as kind of a close call on this issue, if it‘s kind of a close call, it says to me there‘s not going to be a—it‘s not a major mistake to release these photos.  As a matter of—and I‘m going to ask you to sort of step into a sort of more military perspective here—is it a mistake as a matter of public policy, do you think, to release the photos, get them all out there now? 

BURNS:  Well I don‘t think so.  If the idea is to show that the military is not sort of a closed and secretive society and is sort of fair about this, the release of these photographs—they‘re going to come out.  I mean, one of the things in the military that‘s different than the civilian world is if there‘s an Article 32 investigation, then that evidence is disclosed, at least to the defense, and is public.  I think that in reality, even from the military point of view, it‘s probably a better idea to release these photographs to show that you know they‘re being up front. 

They‘re being—they‘re coming forward.  They don‘t condone this sort of thing, and the fact that they‘re letting the public know that this is what there is that‘s out there.  Otherwise, there seems to be this—if the jury comes back, whatever way the jury comes back, if the photos aren‘t released, there will be an argument raised later by our opponents and by even people within the country that the military was hiding this and didn‘t really want it to come out.  I think it‘s best for the military to come out and say, you know, this is what we‘re doing. 

ABRAMS:  I think if they were never going to come out, if I could be convinced that these photos were going to forever remained sealed, I‘d say keep them sealed.  It‘s a bad idea to make them public.  If we know they‘re going to be made public, at least in the context of trials, then it just seems to me as a matter of public policy it‘s a better thing just get them all over with, so there‘s no later on trickling that‘s going on and on and on. 

SUSANIN:  Well I think that‘s right, Dan, from that context.  And there are other dynamics here, political even crisis management both on the side of the White House and the Pentagon, and I think you‘re right.  I think rule number one in that situation is always get ahead of the story.  Get the bad news out and deal with it.  Bring closure and put it behind you. 

ABRAMS:  What about this privacy issue that a number of them have been citing?  Any right to privacy?  A number of the senators are talking about privacy issues. 

SUSANIN:  There are a lot of concerns, competing concerns going on here, and, you know, I put this one at the low end of the list.  It could be, at least with regard to some of the consensual acts that we‘ve been hearing about that there is no right to privacy if the individuals involved knew that they were being photographed or even had a role in that. 

ABRAMS:  Mr. Burns, any privacy issues here? 

BURNS:  The only privacy issue would be for the person‘s photograph. 

The prisoners, I suppose, would have a right to privacy because it‘s their sort of privacy and their integrity that‘s been invaded.  But certainly the soldiers who took the pictures and the people who received them don‘t have any privacy interests.  So I think that‘s kinds of a red herring, frankly. 

SUSANIN:  ...issue here were the subject of the photographs, Iraqis who were subject to the Geneva Convention and, therefore, we do have to respect their humanity. 

ABRAMS:  Right.

SUSANIN:  Are they military combatants or terrorists to whom the Geneva Convention doesn‘t apply? 

ABRAMS:  Yes.  They‘ve said that they will apply the Geneva Convention regardless.  But all right Tim Susanin and Kevin Burns, thanks a lot for coming on.

BURNS:  Thank...

ABRAMS:  Appreciate it.

SUSANIN:  Thanks Dan.

BURNS:  Thank you very much.

ABRAMS:  Coming up, Lynndie England, the woman who‘s become the symbol of the Iraqi prisoner abuse scandal, speaking out, defending her actions, saying I was just following orders.  We‘ll hear what she had to say and talk to her lawyer up next. 

Plus, the terrorists say they decapitated Nick Berg to avenge Iraqi abuses by American servicemen.  But is that just an excuse?  Did these photos really have any impact on what happened?  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  Her face has been linked with the alleged abuse at Abu Ghraib prison, PFC Lynndie England now speaking out for the first time since the photos were made public.  England is the woman seen smiling and pointing at naked Iraqi prisoners.  But in an interview at Station KCNC in Denver, she said she was just following orders. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Told to stand there, give a thumbs-up, smile. 

Stand behind all the naked Iraqis in a pyramid.  Take a picture. 

To us, we were doing our job, which meant we were doing what we were told and the outcome was what they wanted.  They‘d come back and they‘d look at the pictures and they‘d state, well, that‘s a good tactic.  Keep it up. 

(END VIDEO CLIP)

ABRAMS:  Her attorney Giorgio Ra‘Shadd says his client was told what to do by higher-ranking intelligence officials.  He says they even instructed her to smile.  He says his client is now worried she‘ll be used as a scapegoat.

Lynndie England‘s attorney, Giorgio Ra‘Shadd, joins me now from Fort Bragg, North Carolina.  Thanks a lot for taking the time.  Appreciate it. 

GIORGIO RA‘SHADD, PFC ENGLAND‘S ATTY.:  You‘re welcome. 

ABRAMS:  So the defense at this point is essentially, look, she was told to do this.  She was just following the orders? 

RA‘SHADD:  Well, actually, we don‘t have a defense yet because we‘ve been denied discovery.  And as you know, in any criminal defense, every defendant has the right to full and complete disclosure of discovery prior to an Article 32 hearing and prior to a court-martial proceeding.  Now in this instance, not only have we been denied complete discovery, but apparently the full Congress has, too, and that‘s disconcerting. 

ABRAMS:  All right.  But, look, that‘s sort of a technical defense.  I‘m not saying it‘s irrelevant.  But in terms of the public perception of your client, you know, it seems that her defense publicly is that I was told to do it. 

RA‘SHADD:  Well, you know, I definitely don‘t want you to have the impression that there‘s a technical defense, because, you know, constitutional rights and due process are never technical. 

ABRAMS:  Well, sometimes they can be, actually...

(CROSSTALK)

ABRAMS:  ... but...

RA‘SHADD:  Well, actually, no...

ABRAMS:  All right...

RA‘SHADD:  It‘s the foundation of a free...

ABRAMS:  Right.

RA‘SHADD:  ... of our free country.  So that‘s not a technicality. 

ABRAMS:  All right.

RA‘SHADD:  It‘s what makes us great. 

ABRAMS:  Look, some—but—look, I don‘t want to get into an argument with you about this.  We can talk about this off camera.  But I view sometimes constitutional defenses can end up being technicalities in my view.  But let‘s talk about this case. 

RA‘SHADD:  Well, let me...

(CROSSTALK)

RA‘SHADD:  ... address what you just said. 

ABRAMS:  I don‘t want to argue about constitutional technicalities.  Let‘s talk about this case.  I don‘t want to talk about broad constitutional issues. 

OK—oh, so—OK he‘s going to leave.  OK.  Let‘s watch Mr. Ra‘Shadd get up and leave, because apparently he wants to talk about broad constitutional issues as opposed to talking about his client.  OK.  What can you do?  I mean look, you know the guy‘s in a tough position.  You know it‘s a tough, tough case to defend.  But I‘m just trying to talk about the specifics of the case and not broad constitutional issues.  All right.  Giorgio Ra‘Shadd, goodbye. 

Coming up, the terrorists who beheaded Nick Berg claim his death was revenge for the abuse of Iraqis.  But is that just an excuse? 

Send us an e-mail abramsreport@msnbc.com.  I‘ll read them on the show. 

You might even have some comments about Mr. Ra‘Shadd walking away.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Welcome back.  The body of 26-year-old American civilian Nick Berg has arrived back in the United States.  A brutal videotape released Tuesday showed masked men beheading him and this tape was so hard to watch, I have to tell you, ladies and gentlemen.  You know, you see them holding a severed head up to the camera.  In a statement they claim his death was revenge for the abuse of Iraqi detainees at Abu Ghraib prison.  The question—was that just an excuse?  More on that in a moment. 

But first, as Stanley says, he was in the hands of U.S. authorities just days before he was supposed to come home.  But officials say that just wasn‘t the case. 

NBC‘s Michelle Franzen has more. 

(BEGIN VIDEOTAPE)

MICHELLE FRANZEN, NBC NEWS CORRESPONDENT (voice-over):  The family of Nick Berg made plans to recover his murdered body at Dover Air Force Base Wednesday after receiving a special waiver from the U.S. government.  The 26-year-old was beheaded in Iraq by militants said to be connected to al Qaeda.  The group videotaped his execution and said his death was revenge for the abuse to Iraqi prisoners.  The family is preparing for his burial and private memorial service.  But their grief is also turning to anger. 

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE) ever again for my family.

FRANZEN:  Berg‘s brother and sister disputed published statements by the U.S. government that Berg was not in U.S. custody days prior to his disappearance in early April. 

DAN SENOR, U.S. COALITION SPOKESPERSON:  But he was at no time under the jurisdiction or within the detention of coalition forces. 

FRANZEN:  The family said he was supposed to catch a flight home at the end of March but was picked up by Iraqi police and turned over to the U.S.

BRUCE HAUSER, FAMILY FRIEND:  If Nick was ever in the custody of the U.S. government, then I believe the U.S. government should have helped Nick get out of the country. 

FRANZEN:  The news of Berg‘s murder shocked the suburb community just west of Philadelphia, especially those who knew him. 

RYAN COMSTOCK, BERG‘S FRIEND:  Yes, that‘s—I mean it‘s one thing to know that he was killed, but then to see how they did it and made it so public and it just makes it humiliating...

FRANZEN:  Meanwhile, President Bush expressed his condolences to the Berg family and said there was no justification for the execution. 

GEORGE W. BUSH, PRESIDENT:  Nicholas Berg was an innocent civilian who was in Iraq to help build a free Iraq. 

FRANZEN:  But in addition to comforting words from the government, the Bergs are also now searching for answers. 

In West Whiteland, Pennsylvania, Michelle Franzen, NBC News.

(END VIDEOTAPE)

ABRAMS:  Did the photos actually have any impact, the photos of Abu Ghraib actually have any impact on the terrorists as they claimed, or is this just an excuse, as I claimed last night? 

Joining me now is terrorism expert and MSNBC analyst Steve Emerson, journalist Sebastian Junger who is a contributing editor to “Vanity Fair” and has tracked terrorism in the Middle East, and former deputy undersecretary defense in the first Bush administration Jed Babbin.

All right, Steve, let me start with you.  Do you believe these terrorists when they say, oh, this was revenge for the Abu Ghraib prison? 

STEVE EMERSON, TERRORISM EXPERT:  No more of a legitimate excuse than when they claimed that the 1993 World Trade Center bombing was revenge for attacks perpetrated by the United States.  Look, the reality is, Dan, that they don‘t need an excuse.  That they hate the United States.  That they have killed before we went into Iraq.  They have killed way before the United States was involved in the Middle East to the extent it is today, and the litany of complaints go back to the crusades for Islamic militants. 

In fact, the language that they use in executing him clearly invoked the same terminology that bin Laden has, which is we don‘t need an excuse.  You are Christians, crusaders and we hate you and we‘re going to kill you and that‘s it.  And this only gives them a moral equivalence in the minds of, you know, the public debate.  But that‘s the only thing that they‘re trying to exploit.  It has no bearing whatsoever in terms of the motivation. 

ABRAMS:  Mr. Babbin, they‘re trying to use this as a recruiting tool, right? 

JED BABBIN, FMR. DEPUTY UNDERSECY. OF DEFENSE:  Of course.  This is what they do to appeal to some of the other twisted minds over there.  I just don‘t understand how people can be made to feel brave by slaughtering an innocent man, someone standing there masked, not even willing to reveal himself.  I don‘t know how that strikes a chord of bravery or heroism with anybody.  These people are the worst sort of barbaric thugs and we need to quite frankly get back to business, hunting these folks down and capturing or killing them. 

ABRAMS:  See Mr. Junger, I mean based on my studying of al Qaeda, and I have to admit a lot of it has been under the tutelage of Mr. Emerson, you know what I‘ve come to learn about al Qaeda is that they will always look for the issue of the day.  If it‘s the Palestinians, they‘ll mention the Palestinians.  If it‘s Iraq, they‘ll mention Iraq.  If it‘s Abu Ghraib, then they‘ll adopt that as their cause (UNINTELLIGIBLE).

SEBASTIAN JUNGER, CONTRIB. EDITOR, “VANITY FAIR”:  I think you‘re absolutely right.  But it should be pointed out that every war is, among other things, a massive PR effort, and every country in the world will use recent events to explain why they‘re fighting a war.  The unbelievable killing, the awful killing of four contractors in Fallujah was quite rightly used by the U.S. to explain to an occasionally doubtful public why we‘re in there in the first place.  So, I absolutely agree with you, but I think that tactic is quite widespread. 

ABRAMS:  But this seems to me to be just a lie.  I mean it just seems to me that they are claiming that this is why we did it, and that just seems to me to be a lie, that they would have killed him anyway and found some other excuse. 

JUNGER:  Oh, absolutely.  I absolutely agree with you.  Keep in mind, they‘re thinking strategically.  The population of Iraq is not undergoing a massive uprising against the U.S. occupation.  It‘s (UNINTELLIGIBLE) clear to the insurgents that they have popular backing.  They will grasp at anything they can to give legitimacy to their cause. 

ABRAMS:  All right, let‘s talk about who al- Zarqawi is.  And this is the man who, you know these Web sites, these radical Web sites have claimed is responsible, is actually the one who used the knife.  Let‘s take a look at a graphic we built of who this guy is.  Born in Jordan.  Believed to have been appointed by al Qaeda to arrange terrorist attacks in Europe, believed to have ordered the bombings in Morocco and Turkey last year.  Believed to have masterminded the murder of U.S. administrator Laurence Foley in Jordan in October 2002.  He has, you know, taken responsibility for more than 25 terror attacks in Iraq since the fall of Saddam.  The U.S.  offering a $10-million reward for his capture. 

You know, Steve, I thought that al Qaeda was reluctant to accept responsibility for much of what they do, and it seems like this guy Zarqawi is out there taking credit right and left. 

EMERSON:  Well, you‘re actually right.  He‘s a prot’g’ of bin Laden.  There are some tactical differences over, it‘s sort of like the difference between troxikes (ph) and limonites (ph), but the fact is he is definitely somebody that wants to aggregate and collect support.  He knows that he needs to claim credit in order to elicit that type of support. 

And number three, I would say, Dan, that I would also put the notion that al Qaeda is more of a frame of mind than an issue of a card-carrying membership organization.  It‘s a global Jihadist movement.  You‘ve got wannabes.  You‘ve got people attaching themselves without being made members, and it‘s not like the mafia members (UNINTELLIGIBLE) close society.  Anyone can kill in the name of Allah right now, claim they‘re a part of this global Jihad movement and they‘re inducted automatically into the—quote—“al Qaeda organization” or the movement itself and that‘s exactly what Zarqawi has done. 

ABRAMS:  Is this guy—I mean is this guy someone who‘s having regular contact, do you think, in one way or another through intermediaries with bin Laden or just sort of following the—whatever the text is that he was taught before? 

EMERSON:  Well, Zarqawi is more of an independent player as far as we know and there isn‘t that much evidence that he‘s in direct contact with bin Laden.  But certainly he has an incredible network and there are a lot of people who will see this video and hear about it in the Arab world and they‘ll volunteer, unfortunately and it‘ll only expand his network of future killings and decapitations of Americans.  And I think this is just like the Danny Pearl killing.  In fact, the video is horrifically similar to the killing of Daniel Pearl way before the United States went into Iraq showing that there aren‘t excuses needed by these guys to carry out such type of horrific executions. 

ABRAMS:  Mr. Babbin, do you think—I mean, it‘s clear this is al Qaeda-related.  Is it fair to say that this is al Qaeda operating in Iraq and therefore, it‘s just separate from the fighting that‘s going on in Iraq? 

BABBIN:   Well, I think there‘s two questions there, Dan, and they‘re both very good.  But I think I‘ll have to answer both of them.  Number one, I think it is part of the fighting that is going on in Iraq.  We know that Zarqawi has been operating in Iraq since the fall of 2002, quite frankly, planning the insurgency that we are now going up against all through Iraq.  The second thing is it is an al Qaeda operation, and there are probably al Qaeda cells all over Iraq that are now active because we threw out Saddam.  The insurgency that is going on there is not just al Qaeda, it‘s Sadr—

Muqtada al-Sadr.  It‘s the Mujahadeen (ph) (UNINTELLIGIBLE), which is another Iranian funded group...

ABRAMS:  Do you think they‘re working together, though?  Do you think...

(CROSSTALK)

ABRAMS:  Yes, go ahead.

BABBIN:  I think there‘s a loose partnership there.  I don‘t think that they‘re collaborating on specific operations.  But I think that you know it‘s kind of like the mafia families we always refer to.  They‘re, you know one guy‘s turf is another guy‘s non-turf, and I think they are cooperating and probably even sharing arms and information. 

ABRAMS:  Mr. Junger, do you agree? 

JUNGER:  Yes, I do, absolutely.  I think they all share a common goal, which is to give the United States a bloody nose.  And so given that they have the same goal, they can operate independently, but while sort of gauging each other‘s operations.  I imagine bin Laden, watching Iraq, thinking, OK, maybe let‘s—if we can carry out another attack in Western Europe similar to Spain, let‘s wait until it‘s a really chaotic moment in Iraq and then we‘ll do that.  That doesn‘t mean that the terrorists are all in direct communication every day.  But they‘re certainly playing off each other. 

ABRAMS:  So it‘s fair to say, you know, you watch the horrible videotape of Nick Berg and it‘s fair to say, then, that this is what we‘re there for?  We‘re there to fight these guys? 

BABBIN:  Well, Dan, if I can...

ABRAMS:  Let me ask Mr. Junger that question...

BABBIN:  I‘m sorry...

ABRAMS:  ... I‘ll let you—go ahead. 

JUNGER:  Yes, it is fair to say that.  I mean the reasons for going into Iraq are—well, many have been proposed.  One of the problems with this is that it‘s sort of self-creating.  I mean we‘re in a situation now where there are over 100,000 Westerners, American soldiers, contractors, journalists, relief workers in Iraq.  They are a much easier target than they would be if they were safe at home in the United States.  That target of opportunity is going to create attacks, and that further justifies our action.  I‘m not saying we shouldn‘t be there, but it is a little bit self-perpetuating. 

ABRAMS:  I‘m sorry Mr. Babbin.  You wanted to get in.

BABBIN:  Yes, I‘m sorry.  I didn‘t mean to interrupt, but the basic bottom line is these people will kill us wherever they can find us.  Bin Laden made that very clear in 1998.  And, you know, watching the film of Nick Berg‘s beheading to me is like reliving 9/11 all over again.  These people want to do this to each and every one of us.  So it‘s up to us to hunt them down and stop them.  Kill them before they kill us. 

ABRAMS:  Steve Emerson, again, final—same question to you, which is the connection.  Is it fair to watch that videotape of Nick Berg and say this is why we‘re there?  We‘re there to stop people like them and that‘s who we‘re fighting there? 

EMERSON:  Dan, you raise a good question and I must tell you in the last few months I have become a little bit less sure of ultimately the rationale.  I know that, you know, we‘re fighting a good war.  We liberated them from a mad man and certainly that‘s something that was done in Bosnia, for that matter.  But on the other hand, I‘m not so sure that ultimately—and I must tell you quite honestly I‘m not so sure the price is worth it at this point.  If the Iraqi people perceive us as the occupier or—and if the Islamic clergy consistently refers to us as the crusaders, then nothing we do can ever transition them to a democratic culture, which is what we really wanted to see. 

ABRAMS:  All right, Steve Emerson, Sebastian Junger, and Jed Babbin, thank you very much.  Appreciate it. 

Coming up, Kobe Bryant pleads not guilty to rape allegations in Colorado, then jets back to Los Angeles for a playoff game, and once again has one of his best games.  And it‘s not the first time.  We‘ll talk to a man that‘s been tracking Bryant‘s performance, surprising performance on the court, after rushing back from court.

ANNOUNCER:  Are you a fan of THE ABRAMS REPORT with Dan Abrams?  Then let us know.  And if you will be in the Los Angeles area this Saturday and Sunday, May 15 and 16, MSNBC wants to interview you on camera about your favorite moment from the show.  Tell us your story at abramsreport.msnbc.com now.

(COMMERCIAL BREAK)

ABRAMS:  In the Kobe Bryant rape case, sometimes we forget that immediately after the hours and hours of court hearings, he‘s back on the basketball court.  Sometimes minutes after he arrives back in L.A.  Now it‘s happening in the middle of the playoffs.  Even more striking, he often seems to play his best games after court.  Last night he scored a post season best of 42 points.  In the Lakers win over the San Antonio Spurs, Bryant says playing can be therapeutic. 

(BEGIN VIDEO CLIP)

KOBE BRYANT, LOS ANGELES LAKERS:  It‘s very draining.  But, you know, it just feels good to step out on that basketball court, you know.  I‘ve been playing this game since I was 3.  It feels so good to get out there and play and get up and down and compete. 

(END VIDEO CLIP)

ABRAMS:  Last night marked the fourth game Bryant‘s played after a day of legal proceedings and it seems to be raising his averages across the board.  Joining me now with some insight Joe Concha, a regular contributor for Nbcsports.com.  All right, Joe, so he plays well after going to court? 

JOE CONCHA, NBCSPORTS.COM:  It‘s amazing.  He‘s done this four times where he‘s been in court by day and then had to fly back to L.A. by night.  The first time this happened he actually missed the first quarter of a game and he only hits the game-winning shot.  Three other games after that he scores 31 points, 36 points, 42 points.  Some people can‘t handle pressure or that kind of scrutiny off the court.  Kobe Bryant actually thrives on it. 

ABRAMS:  Is that the issue, he seems to be thriving on the pressure? 

CONCHA:  Yes, no question about it.  I mean there‘s an old sports clich’ that says you should play every game as if it‘s your last.  In Kobe Bryant‘s case, at least last night, that potentially could have been his last game in Los Angeles as a Laker and his second to last as a professional athlete.  So he comes to have this appreciation it seems, this sense of urgency, that I need to play well because if I‘m found guilty at a trial this summer, I may never play basketball again, and he‘s been doing this since he‘s been 3 years old. 

ABRAMS:  The fan response, is he getting support?  Are the fans coming to his defense or is he still getting booed at some games?

CONCHA:  He‘s a rock star pretty much everywhere he goes.  I mean the Lakers are like The Beatles of the NBA, so that‘s not surprising.  But last night, when he comes home from court, the reception even seems to be more generous.  And when he scores 42 points that certainly helps as well.  So I think at this point he has such a good public image and not a lot of people believe he‘s guilty.  That they‘re actually saying you know what, I think you‘re a victim maybe in this case and we‘re going to support you every step of the way. 

ABRAMS:  (UNINTELLIGIBLE) and other athletes who‘ve had—been involved in controversial cases, issues, have they sort of done this well also? 

CONCHA:  No.  This has never really been seen before.  I mean if you remember John Rocker, he was a pitcher for the Atlanta Braves.  Back in the ‘90‘s, he was as dominant a reliever as you‘re going to find.  He makes some homophobic, some racist comments about New Yorkers that take the seven train out to Shea Stadium and what happens?  There‘s a “Sports Illustrated” article about it.  He‘s vilified by the press.  He‘s hated by fans and he was never the same pitcher after that.  Now here we are three years later and John Rocker is actually out of baseball. 

ABRAMS:  Ray Lewis, he was charged with a crime.  What happened?  Was

·         he wasn‘t playing, though, while he was facing trial, correct? 

CONCHA:  No, he was not, but then the following season he was as dominant a middle linebacker as there was.  But football is more an emotional game.  Baseball is something and basketball, for that matter, is something where maybe your head is being used more.  And if there is scrutiny off the field or off the court it could affect your play, like it did Rocker or in Bryant‘s case, you could actually thrive on it. 

ABRAMS:  Joe Concha, thanks a lot for coming in.  Appreciate it.

CONCHA:  Thank you, Dan. 

ABRAMS:  Coming up, they‘ve been called diploma mills.  So-called schools where you can send a check and get a degree.  Now many high-level officials accused of having graduated from some of these places, and apparently it‘s costing the taxpayers money.  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK) 

ABRAMS:  Coming up, you respond to my “Closing Argument” where I said that the terrorists are lying when they said they beheaded Nick Berg to avenge the abused Iraqis. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the phony degree controversy separating what really matters from a little bit of school snobbery.  It was a story plastered all over the nightly news programs last night.  According to congressional investigators, at least 28 high-level government employees have degrees from bogus colleges or unaccredited schools.  It sounds shocking.  Three are supervisors with security clearance and the office that oversees nuclear weapons safety.  Two are high-ranking Pentagon officials, including a deputy undersecretary of defense. 

And while there‘s some serious concerns here, let‘s make sure investigators keep their eye on the ball and don‘t overstate the dangers.  Some of these—quote—“schools” are what are called diploma mills or what I call Captain Crunch schools.  You send in money.  They send you a degree.  No work required.  Those should be shut down and any federal employee who cited a degree from the school that required no work should be punished.  Not necessarily because he or she can‘t do the job, but because that‘s essentially fraud. 

Second, an even bigger problem, taxpayers are apparently footing the bill.  If a single taxpayer dollar went towards a phony degree, there should be hell to pay.  Federal workers are only suppose to get government tuition for training at accredited schools.  Those that have violated the rules should be punished.  Again, not because they‘re necessarily unqualified, but because they may have cheated the system. 

But I would also hope that people who didn‘t use taxpayer dollars, who did course work at some less than stellar schools, don‘t necessarily find themselves out of a job because their schools turn out to be of questionable caliber.  There are a lot of so-called accredited schools that provide underwhelming educations.  Some members of Congress characterizing this as a possible threat to national security.  And if someone is unqualified for a sensitive job that is a potential threat that must be remedied. 

But when it comes to national security, I‘m far more concerned about what these employers are doing to monitor our borders and ports than I am about what graduate school they attended.  I‘d rather know they took a mail-in course in Arabic than a full time course in Aramaic.  I spent seven years at a college and graduate school with fancy names.  I know how much degrees from great schools can matter, but some of the smartest people I ever met went to schools you probably never heard of.  Fraud should be punished.  But absent fraud, the questions should stay focused on whether these people can effectively do their jobs. 

All right I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I said that the videotape, beheading of American business owner Nick Berg should not be viewed as a response to the Iraqi prisoner abuse at Abu Ghraib prison as the terrorists claim.  To believe they would not have killed him otherwise, I said, is to ignore reality.  Terrorists and al Qaeda in particular are constantly searching for excuses to kill.

From San Diego, California, Kim Gerhardt.  “I agreed with your “Closing Argument” about giving the terrorists too much credit.  The terrorists will always find a way to point out how horrible we are.  It‘s ridiculous to think if we‘re just a little nicer they will be appeased.”  Agreed.

Bob Stewart from Seattle, Washington.  “The slaughter of Nick Berg is not a response to recent events, but rather just another challenge to American resolve.  I am grateful that you can see this situation for what it clearly is and that you have the courage to defy the popular media view.”

But Phyllis Edwards from Okeene (ph), Oklahoma says, “The media‘s thirst for violence, evil and the almighty dollar drives it to say the virulent acts of the hooded thugs would have occurred even if the prison pictures had not been released.  The thugs have the news media in their corner.”

So, Phyllis, you think I was saying to it protect the media as opposed

·         based on my knowledge of al Qaeda?  Wow.  I guess when al Qaeda was killing in the name of U.S. troops in Saudi Arabia, then in the name of the Palestinians, then based on the war in Iraq, you believed them every time then as well?  You know I would argue that sort of attitude does more damage.  People who trust the—quote—“ thugs” are telling the truth when they try to rationalize their killings. 

And Bill Chennault comes at the media from a different angle.  “I believe the reason you and others in the media do not show the details of the Nick Berg video or even grisly stills taken from the video is because by doing so it would cause Americans to realize the media promotes only those stories that continue to sell news programs.”

You know, Bill, I hate to tell you, but I‘ll bet if we played the actual execution, our ratings would probably skyrocket.  You know recent polls said that 67 percent of American would watch a televised execution.  But it‘s just too gory.  And the majority of people out there would be furious at us for showing it. 

From Deerfield Beach, Florida, Jeff Gilman provide something of a defense for the abuse photos.  “Let me remind you of a statement made by Eliot Ness, he says, referring to his fight with Al Capone and the Chicago mob.  To beat them we will have to come down to their level.  Maybe we need to do the same in Iraq.”

Well maybe or maybe we need to continue to convince the world that we‘re not at that level.

On to a lighter note, some e-mails about the “Your Rebuttal” segment.  Barbara Thunell from Canoga Park, California.  “Your Rebuttal segment at the end always seems so rushed.  It‘s the most interesting part of the show.  Can‘t you make it a little longer?”  OK.  Is that better? 

From Phoenix, Arizona, Keith Rogers.  “When you read the rebuttals then you rebut the rebuttals, are they still rebuttal?  Is this because you want to be right all the time or is it that you just get to have the last word?”

Fair point, Keith.  I‘ll call my comments surrebuttal as we do in the law, but it is a point well taken. 

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

Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching. 

See you tomorrow.

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