updated 5/14/2004 10:29:37 AM ET 2004-05-14T14:29:37

Guests:  Jeffrey Addicott, Mark Cohen, Rick Francona, Jeff Stein, Micah Halpern, James Kimbler, Laura Morgan

DAN ABRAMS, HOST:  Coming up, Defense Secretary Donald Rumsfeld takes a surprise trip to Iraq to visit the infamous prison where the Iraqi prison abuse took place. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Secretary Rumsfeld says Pentagon lawyers told him not to release the rest of the abuse photos and video.  But is it really a legal issue? 

Army Private Lynndie England says she was ordered to pose in these shots.  But in the unreleased video, England is allegedly having what appears to be consensual sex with fellow soldiers.  How will that come into play at her trial?  Will she say she was ordered to do that as well?

And in the wake of the abuse scandal, the CIA accused of using coercive interrogation methods against high-level al Qaeda members.  But when it comes to them, shouldn‘t interrogators be allowed to use tougher techniques? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, Defense Secretary Donald Rumsfeld says the new Iraq abuse photos will not be released before he figures out if it makes any legal sense.  The defense secretary surprised U.S. troops in Baghdad today.  The stop only lasting a few hours, but it was not without a tour of the infamous Abu Ghraib prison where he promised justice for those responsible for the alleged abuse. 

NBC‘s Carl Rochelle has the story from the Iraq capital.

(BEGIN VIDEOTAPE)

CARL ROCHELLE, NBC NEWS CORRESPONDENT (voice-over):  Defense Secretary Donald Rumsfeld in to Baghdad and out in a little over seven hours.  He met with the leadership here.  That‘s Ambassador Paul Bremer, the head of the coalition authority and also head of the military operations Lieutenant General Ricardo Sanchez and on to the Abu Ghraib prison where he met with some of the people who are there.  Four hundred to 600 U.S. troops offered them the complete tour of the prison and then on to a town hall meeting that he held with General Richard Myers, the chairman of the Joint Chiefs of Staff who was also along on this trip, along with some top Pentagon attorneys. 

One of the points that they made while they were here in both Abu Ghraib and at this town hall meeting was that they would find those who were responsible for the abuses at the prison.  They would be punished.  It would not be tolerated and measures would be in place to make sure that this didn‘t happen again. 

DONALD RUMSFELD, SECRETARY OF DEFENSE:  And with six or seven investigations underway and a country that has values and a military justice system that has values, we know that those involved, whoever they are, will be brought to justice. 

ROCHELLE:  The chairman and the secretary also answered a question about armored Humvees.  More are on the way, they said, 200 to 225 being late every month they would be heading in this direction. 

(on camera):  Troop level 138,000 now he said, a big number.  There will be that many here until 2005. 

I‘m Carl Rochelle, NBC News, Baghdad.

(END VIDEOTAPE)

ABRAMS:  Thanks Carl.  And on the flight over to Baghdad, the defense secretary spoke with reporters and explained why the new photos of abuse and even video of sex between soldiers apparently in front of prisoners will not be released. 

(BEGIN VIDEO CLIP)

RUMSFELD:  There‘s the Geneva Convention issue about the images that do involve detainees.  As a result, we‘ve decided that it‘s important that the appropriate people in the government be aware of what‘s on those discs.  There are images in these discs that are of U.S. military personnel and have nothing to do with detainees.  One would think that those would bring into play privacy issues.  Certainly, the prosecution and investigations that are taking place have to have access to that type of information. 

(END VIDEO CLIP)

ABRAMS:  All right, so those are the three issues.  Let‘s figure out if any of those really make sense, meaning if any of those mandate that these new photos not be released.  I‘m joined now by retired Lieutenant Colonel Jeffrey Addicott, a former JAG attorney and Captain Mark Cohen, a - - who is also a retired former JAG attorney as well.  And I should point out that Colonel Addicott is looking so sporty because he is going to a dinner where the president is going to be present, and so based on his lovely attire, I will start with you. 

Thanks for coming back on the program.  Let‘s get the easiest issue to me out of the way—the issue of privacy.  The secretary of defense saying that there are some soldiers on there who may not have been involved—look, you take those pictures out or you, you know obscure the faces on those pictures, that one seems to me to be an easy issue to deal with. 

LT. COL. JEFFREY ADDICOTT (RET.), FORMER JAG ATTORNEY:  I agree, that‘s an easy issue and I think he should have mentioned first a fourth issue, and that is the concept of command influence.  In the military, as you know, the chain of command cannot poison the well against the defendant.  If the military releases these photos we‘ve got some real command influence problems.

ABRAMS:  He did—to be fair, he did mention that and I will get to that one.  We‘ll talk about that one in a minute.  But let me just make sure that Captain Cohen agrees that the privacy issue is sort of a non-issue. 

CAPT. MARK COHEN (RET.), FORMER JAG ATTORNEY:  Yes, I don‘t think it‘s much of an issue.  I think that if these pictures do come public that the military judge in the trial of these soldiers who are going to be accused of the maltreatment, he has the discretion to make sure that the jury—court members do not see those pictures and I don‘t think it‘s an issue. 

ABRAMS:  All right.  So that‘s a non-issue as a legal matter.  All right, let‘s talk about the issue that Colonel Addicott just brought up and that is this issue of command influence.  All right, look, Colonel Addicott we‘re going to get arguments from defense attorneys where they are going to say the “jury pool”—quote—unquote—and I put that in quotes only because the jury pool for this kind of case is different than your ordinary jury pool, but the jury pool has already been polluted by what the defense secretary has said.  Releasing more photos is not going to be a winning argument for a defense attorney in this kind of proceeding. 

ADDICOTT:  Yes but Dan, you‘ve got to remember, who poisoned the well?  It wasn‘t the military that released these photos.  It was—they came through private parties to the news media, so...

ABRAMS:  But they will say the comments made, right, by the defense secretary and by General Myers already—put aside the release of the photos...

ADDICOTT:  Yes.

ABRAMS:  ... they are going to argue it has already polluted the jury pool.  It‘s not going to be a winning argument. 

ADDICOTT:  I don‘t think it‘ll be a winning argument because in the comments that I have heard they are very careful to talk about you know due process and justice being service and the rights of the accused.  So they haven‘t crossed that point in my mind. 

ABRAMS:  All right and Captain Cohen, again to you on the same issue, the idea that that‘s the reason—again, just solely that reason as to not release the new photos, the idea that that will be perceived as command influence.  Look, that just seems to me to be another losing argument that a defense attorney could make. 

COHEN:  Well I don‘t buy the argument that to release these photographs would constitute unlawful command influence.  Number one, command influence is when a senior officer tells a junior officer or tries to suggest to a junior officer to vote a certain way.  I think that in this case, you have to remember that military juries tend to be experienced officers...

ABRAMS:  Yes.

COHEN:  ... many with masters degrees.  They are going to be able to separate the wheat from the shaft.  I might also suggest that there may be defense attorneys who would make the argument that go ahead and release all of these photographs because the more outrageous they are, the less easy it is to believe that higher ups didn‘t know what was going on here.  So, I can see a defense argument in favor of releasing all these photographs. 

ABRAMS:  A fair point.  All right, issue three, the Geneva Convention and Colonel Addicott, this one seems to me to be the strongest argument of the three because it does seem to be a technical violation of the Geneva Convention to release these.  But on the other hand, look, we released photos of Saddam Hussein getting, you know, looking at his teeth, et cetera.  There have been other photos of Iraq soldiers released.  And the goal of releasing them would not be to humiliate the prisoners, so it might not even be such a big deal Geneva Convention violation, is it? 

ADDICOTT:  Well, strictly speaking, that term Geneva Convention violation rolls off the tongue very easily, but it only applies to international arm conflict.  These individuals are not POWs.  They‘re detainees.  They‘re engaged in terrorism...

ABRAMS:  But wait a second...

ADDICOTT:  ... therefore, strictly speaking, the spirit may apply but not the letter of the Geneva Convention. 

ABRAMS:  The bottom line is though the defense secretary has said, made it very clear that when it comes to the detainees in Iraq that the Geneva Conventions apply.  I mean we‘re applying them regardless of whether we have to...

ADDICOTT:  Yes.

ABRAMS:  ... or we don‘t, but they apply...

ADDICOTT:  And given that, then you must—the Geneva Conventions clearly say that you may not humiliate these individuals and you cannot take photographs of them and put them out in the media. 

ABRAMS:  Captain Cohen, but it just—it seems to me that when the goal is not to humiliate, meaning the reason that these photos would be released would not be to humiliate them, therefore would it still be a violation of the Geneva Convention?

COHEN:  I have a somewhat different view than Lieutenant Colonel Addicott.  What the Geneva Convention says is you cannot degrade or humiliate them.  In this case, the degradation or humiliation has already taken place and now we‘re simply talking about whether or not we ought to publicize pictures of it.  And so I don‘t think that to release these pictures would be a violation of the Geneva Convention. 

ABRAMS:  Even the issue of public curiosity? 

COHEN:  The acts have already taken place and I think that there is nothing that is going to prevent us—the pictures are going to come out in any event at some point and to the rest of the world it simply looks...

ABRAMS:  Yes.

COHEN:  ... like we‘re covering it up if we don‘t release them.

ABRAMS:  All right, look, I‘m going to do my “Closing Argument” on this later.  I don‘t think the legal arguments are the issue here.  I think that there are other reasons not to release these, but they‘re not because of the legalities here.  I‘ll talk about that later in the program.  Colonel Addicott and Captain Cohen are going to stay with us. 

Coming up, the CIA facing criticism for its secret interrogation of high-level al Qaeda members that may have included holding a prisoner under water, for example.  But isn‘t that different? Shouldn‘t tough methods be used with al Qaeda leaders to gain crucial information that might prevent further terrorism? 

Plus, Army Private Lynndie England says she was forced to pose in the photos essentially.  She was ordered to do it, but what about the unreleased video that allegedly shows her having sex with fellow soldiers?  Was she ordered to do that as well? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, secret CIA interrogation methods for top al Qaeda leaders coming under fire, but isn‘t it different?  Isn‘t this different from the Iraqi abuse scandal?  Can‘t they use harsher techniques with the al Qaeda thugs?  It‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  For days now Congress and the Defense Department have been focused on the alleged abuse of detainees at Abu Ghraib prison, but now a report in “The New York Times” alleges abuse of detainees by another department.  The report claims the CIA may be using tough interrogation tactics to gain information from a group of high-level al Qaeda detainees.  The claim—that interrogators have used severe tactics like water boarding where interrogators hold the detainee under water to make him think he‘s drowning. 

Apparently, they stage mock executions.  Some detainees have allegedly been blindfolded, you know beaten maybe a little bit, soaked with water and some have said that they have been denied food at times.  Tactics allegedly authorized by the U.S. government for interrogation include simulating torture, but are supposed to stop short of serious injury.  For example, interrogators can attack a prisoner‘s pride but they cannot humiliate him by, say, photographing him naked.  The U.S. has a number of high-level al Qaeda detainees in custody, Ramzi Binalshibh, Abu Zubaydah, Khalid Sheikh Mohammed.

But you know isn‘t this different?  Shouldn‘t we feel comfortable turning a blind eye, effectively to what‘s happening to this select group of leaders responsible for the deaths of so many Americans?  Joining me now to discuss is former Army intelligence officer and “Congressional Quarterly” editor Jeff Stein, MSNBC military analyst and retired Air Force Lieutenant Colonel Rick Francona and syndicated columnist and Israeli terrorism expert Micah Halpern who has devoted a chapter of his book “What You Need To Know About Terror” to the legal issues behind interrogation techniques in Israel.

All right, Colonel Francona, let me start with you.  What do you think of the methods that are being used?  What do you think about this “New York Times” report and shouldn‘t the CIA be given a little extra leeway when it comes to taking these guys in some foreign country and saying you know what, there are going to be a select few al Qaeda leaders where the rules are going to be bent a little bit.

LT. COL. RICK FRANCONA, FMR. CIA OPERATIVE:  Yes, well and the bending of the rules that you are talking about really doesn‘t go to the extreme.  It doesn‘t really cross a lot of these lines.  Now, I think the military rules are very, very strict.  The CIA‘s rules that we‘re operating under for these select group of prisoners have been relaxed a little bit.  They really don‘t cross the line in torture.  A lot of these things are tools that the military would like to have.  I‘ll give you an example.  The Army drummed an officer out of the Army for doing a mock execution or threatening a prisoner with a gun.  I think these are tools that are very, very useful to the CIA interrogators. 

ABRAMS:  Mr. Stein, do you agree? 

JEFF STEIN, FMR. ARMY INTELLIGENCE:  Yes, I have to go along with that.  I respect Rick Francona a lot, first of all.  Coercive techniques are one thing and also I think it‘s important to differentiate whether you need short-term intelligence or long-term.  If you are looking for long-term intelligence like to penetrate the top leadership of al Qaeda, you don‘t need the torture and it may be infective if not backfire on you.  If you need short-term intelligence like say you know a nuclear bomb is set to go off in mid Manhattan, you might want to be much harder.  But generally, coercion is not torture.

ABRAMS:  Mr. Halpern, this is an issue that Israelis deal with all the time.  They interrogate a lot of Palestinians in an effort to try and find out where the next suicide bombing is going to occur and they have dealt with this a lot in the law.  What is permissible under Israeli law and do the people doing the interrogating, you know, often cross that line a little bit? 

MICAH HALPERN, ISRAELI TERRORISM EXPERT:  Well, the whole game is a game of mind play.  It‘s a game of power.  There is no question about that.  So the question is where are the limits and (UNINTELLIGIBLE) Israel is right now on the cutting edge of that and the Supreme Court is monitoring it, which is dramatically different than what is going on in the United States obviously.  So what happens, I would parallel it to maybe a search warrant.  That is searching someone‘s property is illegal, you can‘t do that unless you have proper cause and you show it before a court and the court then decides within reason what can be searched. 

And that is what precisely what goes on in Israel on these issues.  If there is a ticking bomb or a ticking clock and they have components which they know—they know the who, they know the when, but don‘t know the where, then they‘ll ask that question.  Can they use excessive methods?  If the answer is yes, they will.  But not just to fill their data bank, certainly not.  Not just to get new information about other people.  That they can‘t do, either. 

ABRAMS:  You know, Colonel Francona, does it make me a bad person, does it make me someone who doesn‘t believe in human rights when I say when it comes to a select group of al Qaeda leaders, people who were the master minds behind 9/11, like Khalid Sheikh Mohammed, like Ramzi Binalshibh, that I‘m kind of willing to turn my back and say you know what, I don‘t want to hear about it.  I don‘t want to know about it.  Do whatever they think is effective to get information from these guys.

FRANCONA:  No, it doesn‘t.  But I think Jeff makes a key point there.  It‘s not always that effective.  If you are going to use physical coercion against someone you‘re interrogating and you say tell me something, he is going to tell you something.  He‘s going to tell you whatever he thinks it‘s going to take to make you stop doing what you are doing to him.  What you have got is information that you don‘t know is reliable, it‘s going to have to be corroborated.  It‘s just not that effective.  And we‘re talking about people we have had in custody for a long period of time.  Strategically briefings are best conducted using, as the Israeli guest said, mind games.  And you can break down a prisoner psychologically and get much better information rather than physical...

ABRAMS:  Mr. Halpern, is that primarily how they do it in Israel in terms of getting the best information from these terrorists or terrorists to be? 

HALPERN:  Well certainly.  There is the good cop-bad cop.  There‘s gaining a certain amount of confidence.  But there are other things.  Don‘t ever underestimate the power of a cigarette to a chain smoker let‘s say for instance.  Someone who smokes three packs a day, when you blow cigarette smoke in their face and give them and offer them a cigarette, you might get some very good intelligence.  There are a lot of other things. 

There are games that say, a terrorist wakes up after blowing off both his legs and his arm in a hospital and he‘s surrounded by people who are dressed like they are in heaven, so they actually make believe that they‘re in heaven.  He wakes up.  He spills a tremendous amount of information.  That‘s very effective.  It is a mind game.  But the joke is on him because afterwards and I know this, afterwards they actually then turn to speaking in Hebrew and the terrorist freaks out.  He says what‘s going on?  Says oh yes, all Israelis and Jews go to heaven.

ABRAMS:  Mr. Stein, final thought...

STEIN:  Yes.

ABRAMS:  ... on this issue—generally I mean look, “The Times” article today seemed to be suggesting that the CIA is sort of under fire for this.  Based on what you saw in that article about the methods that they are using with regard to these top al Qaeda leaders, are you troubled? 

STEIN:  I think it‘s just—I think somebody is watching too much war movies.  The thing is, there have been many studies of this that show just asking a prisoner is almost as effective as torturing them.  We found that in Vietnam.  And you‘d be surprised.  You know there are a lot of assumptions here that the al Qaeda roundups that they don‘t want to talk.  Often they want to talk.  We have high-ranking North Vietnamese officers just walk in my door in Vietnam and start...

ABRAMS:  But this is different.  I mean these guys have been trained in depth as to just dealing with this very issue.  I mean this is part of their fundamental teachings.  It‘s teaching how to deal with interrogation.  I‘m not suggesting that the, you know the North Vietnamese had never been trained to that, but I‘d be surprised if they were trained to this degree.  You tell me.

STEIN:  Well you know another good study to look at is how U.S. POWs in Hanoi reacted to torture.  Very few of them gave up information and very little, I don‘t know of any of them that gave up important strategic information.

ABRAMS:  But you know look, I‘m going to assume that the CIA officials who are there are, you know, know all of this information and they are doing what whatever they can, using the best techniques possible to get the information.  All right, look, you know I understand.  Jeff Stein, Rick Francona, Micah Halpern, thanks a lot for coming on.  Appreciate it.

FRANCONA:  Thank you.

ABRAMS:  A very important issue. 

HALPERN:  My pleasure.

ABRAMS:  Coming up, she says she was ordered to pose in the prison abuse photos.  But what defense will Army Private Lynndie England have for video which allegedly shows her having sex with fellow soldiers and how will the video be used in her trial? 

(COMMERCIAL BREAK)

ABRAMS:  Well more information coming out about PFC Lynndie England, the woman whose face seems to be at the center of this abuse scandal at the Abu Ghraib prison.  We first saw PFC England in this photo, smiling and pointing at the genitals of a hooded Iraqi soldier.  Days later, a new photo showed her holding a leash attached to the neck of a naked Iraqi prisoner.  But now, we learn that England also appears in sexually explicit photos and videos, at least according to some lawmakers. 

They were taken at the prison, which were shown to members of Congress yesterday.  England allegedly seen having sex with numerous partners in the photos and films, even, allegedly shown engaging in graphic sex acts with other soldiers in front of Iraqi prisoners.  Now England will face a court-martial on the charges that she conspired to maltreat prisoners and assault them.  Yesterday she spoke to Denver station KCNC-TV claiming she was just following orders. 

(BEGIN VIDEO CLIP)

PFC LYNNDIE ENGLAND, U.S. ARMY:  Told to stand there, give a thumbs up, smile.  Stand behind all the naked Iraqis in the 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:  But do these new sexually related photos and videos undermine her defense?  On top of allegedly detaining and humiliating the prisoners, was she ordered to have sex in front of them too?  How will this come into play in her trial?

Joining me once again, former JAG attorney and retired Air Force Captain Mark Cohen and retired Lieutenant Colonel from the Army‘s Judge Advocate General Corps we‘ve got Jeffrey Addicott with us as well. 

All right, Captain Cohen, how will this come into play in her trial?

COHEN:  You know I don‘t think it‘s going to come into play at all because I think that the military judge is not going to allow the members of the court-martial to see pictures of her having consensual sex unless the prosecution can articulate why that is relevant to the maltreatment...

ABRAMS:  How about going to disprove the idea that she was ordered to do all of this?  I mean if she‘s having—allegedly having sex in front of prisoners, the prosecutors could say look, this clearly wasn‘t all ordered.  I mean, I guess her defense could be she was ordered to do that as well. 

COHEN:  I suppose she could assert that.  It seems unlikely that she was ordered to have sex with fellow American soldiers.  But I think that the prejudicial value of the pictures of her having sex with other soldiers is so high, if the government is not going to charge her with those types of violations, if they‘re simply going to charge her with the maltreatment of prisoners, my guess would be that the jurors will never actually see the photos of her having consensual sex. 

ABRAMS:  Colonel Addicott.

ADDICOTT:  Well, this puts her defense council in a box because if she opens the door by introducing her good moral character, then the government can produce these photos.  I happen to think it‘s probably relevant also in the case in chief, but...

ABRAMS:  How?  Tell us how.

ADDICOTT:  Well, again, it‘s a matter of relevancy.  If your defense is I was only following orders, my first reaction of course is well, who gave you the orders?  Let‘s prosecute them also.  But that remains to be seen.  But if that‘s her defense, then I think these pictures are probative and I think that the prejudicial impact does not outweigh the probative value, in my opinion, if I was the military judge.

ABRAMS:  And what would be the probative value, again, of these sexually related tapes?  Would it go to the issue I was just talking about? 

ADDICOTT:  Yes, I think it goes to the issue—again, if she opens the door that I was only following orders, then I think we clearly, if I‘m speaking from the prosecutor‘s point of view, we clearly have the opportunity to present rebuttal evidence, which will essentially destroy the defense case. 

ABRAMS:  Yes and do you disagree with that Captain Cohen?

COHEN:  Yes, I do somewhat disagree with that.  I mean right now she is charged with conspiring to maltreat prisoners and with assault consummated by a battery and photographs of her having consensual sex with soldiers have nothing to do whatsoever with those two charges.  I don‘t think a military judge is going to let jurors see them unless the prosecution can articulate some kind of theory to determine that they are relevant.

ABRAMS:  Is it against the law, Captain Cohen, to have sex in a military—I mean what other specific laws when it comes to sex...

(CROSSTALK)

ABRAMS:  ... in the context of a military operation? 

COHEN:  Sure, there are a number of provisions of the uniform code of

military justice.  Adultery is a crime.  Sodomy is a crime.  Indecent

exposure could be a crime.  Maybe even just dereliction of duty if there‘s

·         if she is supposed to be guarding prisoners and she‘s engaging in these consensual sex acts, so those are all charges that could be brought against her that the government has chosen not to do that...

ABRAMS:  Right.  So far, yes.

COHEN:  ... at this time.  If I was a prosecutor, I would like to add those charges because that would make those pictures of her having consensual sex highly relevant. 

ABRAMS:  And maybe they will.  All right, Captain Cohen, Colonel Addicott, have a good dinner.  Thanks for...

ADDICOTT:  Thank you.

COHEN:  Thank you.

ABRAMS:  ... taking the time, even all dressed up to come on the show. 

Appreciate it.

ADDICOTT:  Thank you.

COHEN:  Thank you.

ABRAMS:  Coming up, going after a deadbeat dad with seven children.  A judge tells him—get this—if you have an eighth, you‘re going to jail.  We‘ll talk to the judge. 

And later, my “Closing Argument”—why the Pentagon‘s decision not to release the rest of the prison abuse photos is the right one even if their legal arguments are shaky. 

And don‘t forget your take on the show, e-mails abramsreport@msnbc.com.  I will respond at the end of the show.  Please include your name and where you‘re writing from.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We are back.  Pay up or zip up.  That‘s what one Ohio judge told a dead-beat dad who owed $40,000 in child support.  Akron resident Sean Talty fathered seven children with five different women, refused to pay apparently for two years.  That landed him in court on felony charges.  But the judge in the case didn‘t immediately sentence him to jail time.  Instead, he told Talty to—quote—to take—quote—“reasonable efforts not to get anyone pregnant for five years.”  If not, then he would go to jail.  Judge James Kimbler made that ruling two years ago.  Talty appealed and lost.  The appeals court finding the ruling within constitutional bounds.  So now it is before Ohio‘s highest court.  The State Supreme Court is determining whether the ruling violated the man‘s constitutional rights to procreate. 

I‘m joined now by Ohio‘s Common Pleas judge, James Kimbler.  Judge Kimbler, thank you very much for coming on the program. 

HON. JAMES KIMBLER, OHIO COMMON PLEAS COURT:  Thank you for having me. 

ABRAMS:  All right, so you know the argument on the other side.  They say that this is setting a dangerous precedent, that this is going to—could lead people down the road of trying to stop all sorts of people from procreating but in your opinion, you specifically dealt with that issue.  Tell us about it. 

KIMBLER:  Well, customarily under Ohio law and law of other states, we have always recognized the fact that people who are committed—convicted of criminal acts do not have the same level of constitutional protection that those who are not convicted of criminal acts have.  For example, every time we put somebody in prison, we‘re depriving them of—in a very fundamental way of their freedom and yet nobody would ever argue that we could not put somebody in prison as a means of punishment.  In this case, I decided that even though Mr. Talty has a right to procreate, that right to procreate is subject to reasonable limitation if he is on probation for not paying child support. 

ABRAMS:  Just so I understand this correctly, your opinion does not say if you have another child, you go to jail.  It says if you do not use reasonable efforts not to have a child, you go to jail, correct? 

KIMBLER:  That is correct.  If he was on supervision and had another child, he would certainly have the right to have a hearing to show that he did make reasonable efforts to avoid conception.  He would have the right to produce evidence.  He‘s have the right to an attorney.  So it‘s not like if somebody automatically became pregnant from him he would then go to jail. 

ABRAMS:  Give us a little more background on this guy and why you felt it was necessary to use this sort of draconian measure. 

KIMBLER:  Well, Mr. Talty was—is a guy who has had several children, illegitimately.  He was ordered to pay support from the Marion County court system.  He did not do so I believe on two of those children.  But he was also a guy who was working, he was a hard worker, and he was kind of like a borderline case.  I mean like, I could have justified putting him in jail.  I could justify giving him supervision. 

I wanted to make sure if I gave him supervision, however, that one of the orders that I put on him or one of the conditions I put on him was that he would pay child support that he was ordered to pay.  I did not think he would be able to fulfill that condition if he had more children while he was on supervision in my probation department.  So therefore, I felt that it was reasonable in this situation to allow him to keep his freedom, but to have the condition that he make reasonable efforts to avoid conception. 

ABRAMS:  But you also said, did you not, that one of the reasons you didn‘t want to put him away was if you put away, your opinion said look, that‘s effectively going to stop him from procreating, but he‘s not going to be able to make any money to pay these people back. 

KIMBLER:  That‘s right.  I mean the thing that you have to keep in mind here is in nonsupport cases there is another party and that is the children who are not receiving the support.  In order to protect their rights, as well as the rights of the defendants, you have to make sure you find a sentence that allows him to pay support if he can pay that support because if you put him in prison, he may not be able to get anybody else pregnant, but they are not going to be able to get support.  And the needs of the children are needs that the justice system can legitimately in my opinion take into account. 

ABRAMS:  All right, Judge Kimbler, thanks a lot for coming on the program.  We appreciate it. 

KIMBLER:  Thank you, Dan. 

ABRAMS:  There are many on the other side of this issue that think the judge is setting a dangerous precedent.  One of them is my next guest, Laura Morgan, a family law attorney and former head of the American Bar Association‘s Committee on Child Support.  Ms. Morgan, thank you very much for coming on the program. 

LAURA MORGAN, FAMILY LAW ATTORNEY:  Good evening. 

ABRAMS:  All right, so what‘s the matter with the judge‘s ruling? 

MORGAN:  Well, I first want to make it clear that I have a lot of common ground with Judge Kimbler.  I‘ve worked and spent a good part of my professional life devoting to enforcement of child support.  Judge Kimbler is absolutely right that we need to protect our children and make sure that they get as much child support as possible from those who can pay.  I have basically three problems, three concerns with this type of order.  The first is that I don‘t think that this kind of condition on probation is necessarily connected, reasonable related to the and that it seeks to accomplish. 

ABRAMS:  Wait.  How...

(CROSSTALK)

ABRAMS:  ... I mean just common sense wise, let‘s go through this one first, how is it that it‘s not reasonable connected if the issue is he‘s having all these kids out there, he‘s not paying them, if he doesn‘t have any more kids, then that seems reasonable related, no? 

MORGAN:  Well, for criminal nonsupport, there necessarily has to be a finding that this person can afford to pay, but just hasn‘t.  So necessarily, the judge found that Mr. Talty can pay the support that he was ordered to pay, but hasn‘t. 

ABRAMS:  Right.

MORGAN:  Therefore, whether he has more children or doesn‘t have more children doesn‘t make him pay for the children he already has.  He can pay.  There are other means to make him pay for those children that he already has. 

ABRAMS:  All right, let‘s go to issue two. 

MORGAN:  OK.  The second thing is that I find this kind of order just unbelievably intrusive.  We have a situation where the condition of probation is that he must take reasonable measures to avoid becoming a father again.  Well, who is going to decide what a reasonable measure is... 

ABRAMS:  That‘s why there would be a hearing.  There would be a hearing and the, you know the person moving forward would say look, he either used protection or he asked about protection or he did something to try and prevent...

MORGAN:  Exactly.  Just think of the kind of inquiry that a judge would have to get into.  Is the judge going to have to decide well, a condom wasn‘t necessarily a reasonable means, but the woman he was with using a diaphragm...

ABRAMS:  I don‘t know, it seems to me...

(CROSSTALK)

ABRAMS:  ... that‘s kind of an easy one.  I mean...

MORGAN:  The kind of questions that would have to go into that hearing are, as I said, incredibly intrusive.

ABRAMS:  All right, number three. 

MORGAN:  There are a number of cases that have held in the civil context that that kind of court inquiry is highly inappropriate. 

ABRAMS:  Look, but there have also been cases in other states where they have upheld similar type of probation measures as well. 

MORGAN:  That‘s true. 

ABRAMS:  Right.

MORGAN:  There is a decision from the Supreme Court of Wisconsin...

ABRAMS:  Wisconsin, yes...

MORGAN:  ... State v. Oakley...

ABRAMS:  All right, I want to let you get your third one out and I‘m almost...

MORGAN:  ... similar.

ABRAMS:  I‘m almost out of time.  I want to get you—let you—quickly get your third point out.  Go ahead.

MORGAN:  Sure.  Following up on the intrusiveness of it, just think about the kind of questions that a probation officer would have to be asking him.  He would have to say, did you have sex with anyone?  Was it protected?  Was it unprotected? 

ABRAMS:  What‘s the big deal? 

MORGAN:  Would he—that‘s why I find it intrusive. 

ABRAMS:  No, but I‘m saying so what?  So the probation officer has to ask him a couple of embarrassing questions...

MORGAN:  Well, how would the probation officer have to follow up on that?  Supposing he said oh yes, I did take reasonable measures.  Would the probation officer be under any kind of duty to find out whether he...

ABRAMS:  It‘s the same issue probation officers face all the time.  That‘s the same issue probation officers deal with every day.  People tell them, they either have to believe them or not and so it happens. 

MORGAN:  Well this probation—condition, however, we‘re faced with the—with him actually having unprotected sex...

ABRAMS:  All right.

MORGAN:  ... not taking reasonable measures, not using a condom...

ABRAMS:  Got it.

MORGAN:  ... no pregnancy results and yet...

ABRAMS:  All right.

MORGAN:  ... he is in violation of his probation...

ABRAMS:  Got it.

MORGAN:  ... and can be put into jail. 

ABRAMS:  Laura Morgan...

MORGAN:  ... like it‘s accomplishing what it wants to accomplish. 

ABRAMS:  Got to wrap it up...

(CROSSTALK)

ABRAMS:  Thank you so much for taking the time to come on the program. 

I appreciate it.

MORGAN:  It was my pleasure. 

ABRAMS:  Coming up, why not releasing the rest of the Iraqi prisoner abuse photos is the right thing to do, but not for the legal reasons offered by the administration. 

Plus, our mailbox was filled with letters from you about the soldier‘s attorney who walked out in the middle of my interview with him last night many—has many of you blaming me as him.  “Your Rebuttal” is coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why the administration‘s legal justifications for not releasing the new Iraqi abuse photos are not particularly convincing and yet, the decision not to release them is probably the right one.  Today while heading to Iraq, Secretary Rumsfeld and General Myers offered essentially three legal explanations for why the administration will not release the new abuse photos. 

Number one, that the release could hinder the prosecution of those responsible.  That it could be perceived as command influence by the most senior officials. 

Two, that it would violate the privacy of some soldiers seen in the photos who may have done nothing wrong. 

Three, that it would violate the Geneva Convention‘s mandate that prisoners not be subjected to humiliation and public curiosity.

Well, none of these are frivolous arguments.  They are all hyper technical ones that probably should take a back seat to the broader question of what‘s best for the country. 

Number one, it‘s true that some defense attorneys for the accused will likely argue that the highest-level officials have already polluted the—quote—“jury pool” and that the release of more photos would give them one more piece of ammunition.  But those are almost certainly losing arguments that will not have any practical impact on the trials. 

Number two, the privacy of the other soldiers in the photos could be easily be protected by blurring their faces or even not releasing a select few photos. 

Number three is I find it the best of the arguments—it‘s likely a violation of the Geneva Convention to release humiliating photos and Secretary Rumsfeld has said that we are adhering to the Geneva Convention when it comes to Iraq, but you know this sudden adherence to the Geneva Convention is a bit disingenuous.  One could certainly argue that showing the picture of Saddam Hussein after his capture was likely a violation, as well as other photos of captured Iraqi soldiers.

Furthermore, the release of the photos would not be in an effort to humiliate the prisoners, but why are they relying on these weak legal arguments?  Why is it inevitable, as everyone says, that these photos will be leaked?  Why can‘t the administration just echo the words of Republican Senator John Warner and say that we fear that the release might incite anger against our forces and why not argue that now that the world knows of the abuse there‘s no real reason to release more of the same.  Unpersuasive legal arguments may only undermine our case in the court of world opinion. 

Coming up, lots of e-mails about last night‘s on-air walkout by the attorney for PFC Lynndie England.  As many of you criticizing me as him.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your e-mails on my brief interview with the lawyer for Lynndie England.  He walked out in the middle of the interview and many of you had strong feelings about it.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”, and boy, did you fill up our inbox about my brief interview with Giorgio Ra‘Shadd, the attorney for PFC Lynndie England, one the soldiers accused of abusing Iraqi prisoners at Abu Ghraib prison.  Before he walked out I asked Mr. Ra‘Shadd if his defense was that PFC England was just following orders.  She had said that publicly.  He had said that publicly. 

Mr. Ra‘Shadd had a different agenda last night.  He said we don‘t have a defense yet because we‘ve been denied discovery, meaning that he‘s claiming that he had not yet received certain material that could be relevant to his defense.  In hope of moving to the substance of the defense that had been laid out by both him and his client previously, I commented that apart from the technical issues, it seems that her defense publicly is that I was told to do it.  Mr. Ra‘Shadd chimed in that—quote—

“constitutional rights and due process are never technical.”  I responded they can be, but instead of arguing broad constitutional issues I wanted to focus on the case we brought him here for. 

Apparently Mr. Ra‘Shadd wanted to have a broader discussion about the Constitution.  He took off his microphone and walked out in the middle of the interview.  Lots of mail. 

David Lough writes, “You were aggressive, ill-informed and arrogant.  You are through her lawyer attacking someone down low on the food chain now to be used as a scapegoat by an unbelievably corrupt administration.  I should know as a graduate of two Ivy League institutions that you don‘t know much.”

Well, first of all, even if I wanted to attack her defense I never got that opportunity because her lawyer didn‘t discuss the substance of her defense with me.  Furthermore, let me just say how impressed I am that you are a graduate of two Ivy League institutions. 

Tony Cannistra, “I admire the gentleman for getting up and leaving.  The fact that he is being stopped in a discovery is a far more important aspect of the case than anything that you could have possibly discussed.  These people with stripes on their sleeves are being set up to cover for the incompetence all the way to Bush‘s cabinet running this unnecessary war.”

OK, so now my questioning was, I guess, a political issue as well? 

From North Carolina, Ned Robertson.  “As a legal expert yourself you should know he will use all methods including the basic principles outlined in our Constitution.  He has no obligations to explain his defense to you or any other media outlet.”  

True, Ned, except that he did earlier in the day.  I guess before he came on the show the talking points changed. 

And Tanya McGregor, “What good defense attorney would publicly give a defense before seeing the evidence against his client, which brings me to the following question.  Why does it seem that criminal defense attorneys have so much more common sense than prosecutors?”  Really?

From Worchester, Massachusetts, Thomas Schueller.  “He was right to walk out on your interview.  How can you suggest that attempts to deny PFC England access to vital information for her defense amount to a mere technicality?”

Rohan Gavin writes, “I fully support Giorgio Ra‘Shadd‘s decision to walk out on the interview.  As Ra‘Shadd rightly stated, constitutional rights are the basis of our democracy and to dismiss the possible abuse of these constitutional rights as a technicality is outrageous.”

All right, I got a lot of e-mails echoing this sentiment.  Bottom line, the Constitution is no technicality, but many people walk free based on technical violations of certain constitutional rights.  Those are technicalities.  It does not mean that the concept, for example, of search and seizure is a technicality.  But people who are clearly guilty are sometimes set free based on certain technical violations of that doctrine.  In this case I‘m certain Mr. Ra‘Shadd will get his discovery.  His constitutional claims will ultimately I am certain be irrelevant.  If her defense hinges on broad constitutional claims of due process, I think she may be in even bigger trouble than I thought. 

Now many of you thought I was not the problem.  From Lockport, New York, Rich Housler, “I hope Ms. England has a plan B because it looks like plan A is a disaster.  Her lawyer had a chance to make her case in a national forum and look what happened.  He took his ball and went home and it was not your fault.”  Thanks Rich.

And Jay Hawley, New York, New York, “I commend you for sticking to the topic and not permitting Mr. Ra‘Shadd to use your program as a platform for another agenda.  His behavior clearly shows us that some lawyers are simply about their own egos.”

From Seattle, Washington, Suzy Smith with a suggestion for Mr.  Ra‘Shadd.  “If you‘re the attorney handling this case, you had better be savvy enough to think on your feet and be able to answer the questions thrown to you.  If you can‘t do it this early in the game, give up the case and give it to someone who can.”

And finally, Steve Honigman from Rochester, Illinois.  “I think that it was best that the lawyer stood up and walked off the show.  I think that if it had come down to an argument you would have made him look like an idiot.  So he made the right decision.” 

Thank you, Steve.  Let me just say that Mr. Ra‘Shadd is invited to come back on the program to discuss the issue at any time.  No hard feelings on my part.  And I invite him to come back to discuss the substance of PFC England‘s defense at any time. 

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

Coming up next, “HARDBALL” with Chris Matthews.  Chris talks with Senator Bill Nelson about the new Iraqi prisoner photos. 

Thanks for watching.  I‘ll see you tomorrow.

END   

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