updated 5/20/2004 9:57:37 AM ET 2004-05-20T13:57:37

Guests: Alan Dershowitz, Gerry Spence, Viet Dinh, David Horowitz, Flavia Colgan

DAN ABRAMS, HOST:  Coming up, the first U.S. soldier to be court-martialed for the Iraqi prisoner abuse gets a year in jail and thrown out of the Army. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Twenty-four-year-old Reservist Jeremy Sivits cuts a plea deal, agreeing to testify against his fellow soldiers at Abu Ghraib prison.  We‘ll talk to Harvard Law Professor Alan Dershowitz about the defense the rest of the soldiers may use. 

Former New York Mayor Rudolph Giuliani testifies before the 9/11 commission and recounts exactly what he saw at ground zero that day. 

And hecklers and protesters have been disrupting some recent congressional hearings.  Should they be prosecuted or is it just classic freedom of speech? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, the Army punished one of its own today in the first court-martial of a soldier linked to the Iraq prison abuse scandal.  And with military investigators still trying to determine the scope of the abuse (UNINTELLIGIBLE) trial Specialist Jeremy Sivits is just the start.  So we start in Baghdad with a report from NBC‘s Campbell Brown. 

(BEGIN VIDEOTAPE)

CAMPBELL BROWN, NBC NEWS CORRESPONDENT (voice-over):  The 24-year-old specialist, Jeremy Sivits, was a mechanic at the prison, outranked by the other soldiers charged with abuse.  In a tearful retelling of that night at Abu Ghraib Sivits described how Staff Sergeant Ivan “Chip” Frederick invited him to help escort some detainees to the cell, how he then watched Frederick pick up one detainee and punch him in the chest so hard, the prisoner couldn‘t breathe.  A medic had to be called in to help.

He described Sergeant Javal Davis and Private First Class Lynndie England putting detainees in a pile and stomping on their fingers and toes, how he took a photograph of Corporal Charles Graner with one detainee in a headlock, Graner‘s fist in his face.  And how he later watched Graner punch a prisoner in the head so hard, Graner complained that he thought he had hurt his wrist. 

At one point Sivits got so emotional, he had to stop to regain his composure.  He pled guilty to lesser charges, taking pictures of the abuse and doing nothing to stop it.  In exchange he‘s expected to testify against the others.  Earlier in the day, Graner, Davis and Frederick were arraigned, the charges against them far more serious.  The three men chose to defer entering pleas today, their lawyers arguing prosecutors are preventing them from talking to detainees from Abu Ghraib who could be defense witnesses at trial.

The judge seemed sympathetic to the defense and warned prosecutors they will have to make a strong case to continue denying defense access.  Sivits faces up to a year in prison.  His family back home in Pennsylvania gathered with friends for a candlelight vigil.  His father, a veteran, and his mother both clearly in pain over what has happened.

DANIEL SIVITS, JEREMY SIVITS‘ FATHER:  Jeremy is always (UNINTELLIGIBLE) in my heart and in my mind, and him and I will walk proudly from here on in. 

BROWN (on camera):  The three soldiers arraigned today are due back in court on June 21.  That‘s when the judge is expected to set a date for their trials.

Campbell Brown, NBC News, Baghdad.

(END VIDEOTAPE)

ABRAMS:  Attorneys for those three soldiers say they plan to ask for a change of venue meaning they want to move the case and there is another likely court-martial coming up in this case and here too, the defense could ask for a change of venue, even though the soldier to be tried isn‘t being held in Baghdad, but in Fort Bragg, North Carolina. 

NBC‘s Martin Savidge has that story. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

MARTIN SAVIDGE, NBC NEWS CORRESPONDENT (voice-over):  The same week the first court martial begins over the Iraqi prisoner abuse scandal...

(MUSIC)

SAVIDGE:  ... just outside Fort Bragg, North Carolina, family and comrades honored fallen soldiers from the base killed in the war. 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

SAVIDGE:  It was a painful reminder of the price of duty and might only magnify the mistakes of those accused of failing it.  PFC. Lynndie England is one of them and Fort Bragg is where she will stand trial.  Five months pregnant, she was moved from Iraq to this base just as the abuse scandal broke. 

GIORGIO RA‘SHADD, PFC ENGLAND‘S ATTORNEY:  She is sad.  She‘s depressed.  She‘s isolated.  She‘s alone.  She feels like the chain of command led her down and that led to her being in photos that may have let other soldiers down emotionally. 

SAVIDGE:  According to her attorney, England has become a poster child for the Iraqi prisoner abuse scandal and he is worried she may have a difficult time getting a fair proceeding because of the base‘s strict military attitude.  He is thinking of requesting a change of venue, but...

RA‘SHADD:  I haven‘t discussed that with military counsel here yet.

CAPT. CRAIG MARKS, U.S. ARMY RETIRED:  I would argue that she won‘t get a fair shake because she is being made an example and that‘s the worst think you can be in the Army. 

SAVIDGE:  As a former Green Beret, retired Captain Craig Marks knows the Fort Bragg mentality well.  He says just what kind of soldier sits on England‘s trial could influence the court-martial‘s outcome. 

MARKS:  I think embarrassment is not tolerated.  Now Special Forces, we certainly, we‘re free thinkers.  We would get out there, operate independently, do things that maybe the regular Army wouldn‘t approve of from time to time, but I think it‘s the embarrassment factor that‘s going to really play in this. 

SAVIDGE:  Embarrassment is the last thing Fort Bragg is known for as home to the famed 82nd Airborne and U.S. Special Forces Operations Command, a base where they don‘t just take anyone and they definitely don‘t take excuses.  A place where England‘s defense, she was just following orders, might not pass muster. 

Martin Savidge, NBC News, Fayetteville, North Carolina.

(END VIDEOTAPE)

ABRAMS:  The bottom line, defending any suspect is going to be a difficult job.  Now imagine you‘re one of them and you‘re saying to yourself in a perfect world who would I want to be a part of my defense team?  My next guest would certainly be on anyone‘s short list, a man who once wrote an article entitled “Military Justice is to Justice as Military Music is to Music” and his latest books is “America on Trial: Inside the Legal Battles That Transformed Our Nation”.  It offers insights into many of the highest profile cases from the Salem witch trials to Roe v. Wade to O.J. Simpson. 

Harvard Law Professor Alan Dershowitz joins us now.  Alan, it‘s great to have you back on the program.

ALAN DERSHOWITZ, AUTHOR, “AMERICA ON TRIAL”:  Thanks Dan.  It‘s nice to be back.

ABRAMS:  All right, before we talk about your book, let me ask you a couple of questions about defending these soldiers.  What is the key, do you think, to defending many of these people seen in the photos? 

DERSHOWITZ:  Well I think it‘s going to be very hard because the head general recently said—quote—“the most important thing is that these people are convicted.  So the command influence has already been heard.  The general command wants these people to be convicted.  That‘s why they made the deal with this guy.  They want him to testify against them.  And they hope that the buck will stop there at these young, inexperienced people who never should have been in a position of authority to make any discretionary decisions about how to soften up people. 

(CROSSTALK)

ABRAMS:  That‘s a legal argument they can make, right, to say which is we should have this dismissed based on command influence.  It sounds like you think that won‘t be a winning argument. 

DERSHOWITZ:  Of course it won‘t be a winning argument...

ABRAMS:  Yes.

DERSHOWITZ:  ... unless it gets to the military court of appeals, which is a civilian court and which is very sensitive to command influence.  You know the other myth that operates is that listening to superior orders is not a defense.  It‘s not a defense when you kill somebody but it very well might be a defense when you have humiliated somebody.  Humiliation is a standard form of interrogation both in the civilian and in the military.  And if your superior officer tells you to humiliate somebody, to strip them naked, to give them women‘s underwear, that‘s probably a command that you are obligated to obey especially when you have been told that the Geneva Conventions don‘t necessarily apply. 

You know you don‘t have to bring a lawyer with you when you go into the Army, you are supposed to use common sense.  So I think there are defenses available.  Whether they will work within the chain of military command, within the military courts is very speculative.  But it may very well win.  You know we had a case previously where torture and murder was used, the My Lai massacre with Lieutenant Calley, I write about it in “America on Trial”, he ended up serving about as much time...

ABRAMS:  Yes.

DERSHOWITZ:  ... for mass murder as this guy who pleaded guilty to taking a photograph of humiliation.  So you know there are different standards of justice for different times and places. 

ABRAMS:  And I guess it will also depend on exactly what they are accused of doing, right?  I mean for example, I assume there is a difference between someone who placed a pair of underwear on someone‘s head versus someone who was you know holding someone on a leash and dragging them around and hitting them. 

DERSHOWITZ:  Well I think the hitting them is a big one. 

ABRAMS:  Yes.

DERSHOWITZ:  I think dragging, you know putting him on a leash and humiliating him is one thing.  I mean once you start hitting people very hard, stepping on their fingers, you have gotten beyond the line where every officer should know that you at least need to have written authorization.  Now you know if one of these people were asked to interrogate Sheikh, you know, Khalid Mohammed or if they had caught some other high-ranking, high-value detainee and they had an authorization from the commander-in-chief, that would be different.  But this was so foolish and your previous guest talked about embarrassment.  This is embarrassment all over because it was inefficient.  It didn‘t work.  These were low-value detainees.  There were no discretion—there were no standards.  And in the end it was entirely predictable. 

ABRAMS:  You know one of the lawyers for one of these defendants told me that his defense is going to be effectively you are in a war zone; you‘ve got to do what you‘ve got to do.  We‘re going to claim that everything you see in those photos is actually and should be considered lawful.  It seemed to me that is not a particularly strong defense. 

DERSHOWITZ:  It would work in front of a civilian jury...

ABRAMS:  Really?

DERSHOWITZ:  It will not work in front of a military tribunal. 

Because to admit that would be to admit something that the Army is not prepared to acknowledge.  Now they‘re now saying we distance ourselves from this.  Of course, they knew about this, Rumsfeld knew about it, I knew about it because it was in “The New York Times”.  It was in “The Wall Street Journal”.  It was in the Red Cross report.  Were it not for the photographs, there wouldn‘t be such an enormous focus of attention on this.  It is the embarrassment, the fact that these photographs have come out. 

Just having these things verbally described didn‘t cause any real reaction.  It‘s seeing them and knowing that our enemies are seeing and they‘ve become part of the propaganda war that has become the major issue here. 

ABRAMS:  When you say everyone knew about it, you mean since January?

DERSHOWITZ:  No, before that.  Everybody knew... 

ARAMS:  Apart from the Red Cross for a moment...

DERSHOWITZ:  Well, before the Red Cross, there were articles in many, many newspapers—I quote them in a previous book “Why Terrorism Works”—indicating that we were engaging in very, very rough interrogation techniques of the kind that were clearly violative of a literal interpretation of the Geneva Conventions.  That was well documented and well known before this.  The details of what exactly we were doing didn‘t really begin to emerge until January. 

ABRAMS:  Let‘s talk about your book, Alan.  What—you list—your book has a whole host of trials.  I mean...

DERSHOWITZ:  Right.

ABRAMS:  ... you know it‘s hard to sort of make a comparison.  You talk about some trials from you know centuries ago and some Supreme Court cases, other cases that are relatively recent.  Which of the cases that are mentioned in your book that you discuss in your book do you think had the biggest impact on society of the day... 

DERSHOWITZ:  Well, you know, I start with the Salem witch trials...

ABRAMS:  Right.

DERSHOWITZ:  ... which is the 17th Century version of some of the terrorist trials we are having now.  It‘s no coincidence that I start with Salem witches and I end with the detainees in Guantanamo because today‘s terrorism is yesterday‘s witchcraft.  The big difference is of course, terrorism exist, witchcraft didn‘t, but the people who were persecuting the witches believed as strongly as we believe that terrorists are endangering us that the witches endangered them.  And we hopefully learned some lessons from that.  The trial of the Boston massacre killers by John Adams was a very important trial.  John Peter Zenger, very important trial.  These were all trials that had enormous influence.

The Aaron Burr trial, the first treason trial we ever had in America established so much of the law of treason that still exists in the United States.  The most surprising cases for me were the Rosenberg case where I thought the Rosenbergs were innocent and came away believing that Julius Rosenberg was guilty and Ethel was innocent and they knew she was innocent and they essentially tortured him into revealing all the other spies by threatening to kill an innocent wife unless he provided the information.  And being the Communist that he was, he refused to provide the information and they killed her.  They went forward with it and the lawyer for the Rosenbergs was cooperating with the FBI...

ABRAMS:  Yes.

DERSHOWITZ:  ... and playing both sides against the middle. 

(CROSSTALK)

DERSHOWITZ:  That was shocking to me. 

ABRAMS:  That‘s fascinating.  I remember studying a lost about that.  There‘s also a case in here, by the way, called the Abrams case, which you‘ll have to read the book...

(CROSSTALK)

ABRAMS:  ... to see.  Alan Dershowitz, thank you very much for coming on the program. 

DERSHOWITZ:  Thank you.  My pleasure. 

ABRAMS:  Coming up, we‘ve seen what military interrogators are not supposed to do, so what is allowed when soldiers are pressured to get information?  We‘ll have a report from a usually top secret site where they teach interrogation techniques.

Also, does the attorney/client privilege allow a lawyer to help a client who happens to be a terrorist pass messages? 

And when protesters disrupt a public hearing, should they be shown the street or prosecuted?

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, former New York Mayor Rudy Giuliani tells the 9/11 commission what it was like for him on 9/11, what he saw and even how he felt.  That‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  From Afghanistan to Guantanamo Bay, the Iraqi prisoner abuse scandal has forced the military and the Defense Department to scrutinize its policy when it comes to interrogations everywhere.  Last time—last week “The New York Times” reported that some in the CIA are using tough interrogation tactics to try to gain information from a group of high-level al Qaeda detainees. 

It said interrogators have used severe tactics like holding detainees under water to make them think they‘re drowning, staging mock executions, some detainees have been blindfolded, beaten up, they said, soaked with water and then starved.  So exactly what is legal when it comes to interrogating terrorists or prisoners of war? 

NBC‘s Kerry Sanders got a rare look inside the Army base in Arizona where are military personnel are trained on legal and proper methods of interrogations and he joins me now.  Hey Kerry.

KERRY SANDERS, NBC NEWS CORRESPONDENT:  Well Dan, it is not, of course, in legal warfare.  They don‘t have to sit there and actually memorize the Geneva Convention, but what they have to do is understand the rules of the Geneva Convention.  And something else they learn at school, there is a definite line between the military police and the military interrogator. 

(BEGIN VIDEOTAPE)

SANDERS (voice-over):  Fort Huachuca, Arizona, a normally top secret Army base...

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

SANDERS:  ... where military interrogators learn the proper way to question prisoners. 

UNIDENTIFIED MALE:  Who else...

SANDERS:  It‘s a 16-week training program where interrogators learn what they can and cannot do. 

UNIDENTIFIED MALE:  You emphasize.  You find what means something to them, love, hate, whatever it is, you push their buttons. 

UNIDENTIFIED MALE:  We are very, very precise.  We make it easy as we can on the soldier so there is no nuance the he or she has to deal with in terms of what‘s right and wrong.  We lay it out for them. 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE) if you talk to me, I can make sure that when this war is over, you will be one of the first ones back. 

SANDERS:  One hundred ninety-two hours just spent studying the Geneva Convention, the law of land warfare.

UNIDENTIFIED MALE:  What‘s one of them?

SANDERS:  Military interrogators learn it‘s legal to psychologically instill fear in prisoners, but illegal to physically threaten them.  For example, hooking them up to electrical wires.

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

SANDERS:  It‘s legal to question prisoners at any time of day or night but illegal to use sleep deprivation.  It is legal to attack a prisoner‘s pride and ego, but illegal, humiliation.  For example, taking pictures of them naked. 

(on camera):  And the student soldiers here at Fort Huachuca learn something else, that anywhere between three and five percent of those they are interrogating will never give up any information. 

(voice-over):  At Abu Ghraib it is not yet clear what role military interrogators played in abuses.  An investigation is expected to be completed in the coming weeks. 

(on camera):  When you saw those pictures, what was your reaction? 

UNIDENTIFIED MALE:  I was shocked. 

SANDERS (voice-over):  This 30-year-old reservist doesn‘t want his name used because when he is finished training, he will be deployed to the war zone. 

UNIDENTIFIED MALE:  You cannot follow an illegal order.  It‘s up to you to understand if it‘s legal and if you carry it out, you are guilty, you‘re guilty just as guilty as the person who gave the order. 

UNIDENTIFIED MALE:  It was more to resist...

SANDERS:  Robert Baer was an interrogator with the CIA.

UNIDENTIFIED MALE:  I understand from the military that it doesn‘t have enough interrogators and it is certainly up until 9/11 had no one that was familiar or had done interrogations under duress. 

SANDERS:  This year, fort Huachuca will turn out 539 military interrogators, with most expected to go to Iraq and Afghanistan armed with a very different philosophy than seen at Abu Ghraib. 

UNIDENTIFIED MALE:  You get more flies with honey than with vinegar.  You treat somebody well you‘re going to end up getting some positive results. 

UNIDENTIFIED FEMALE:  And apparently he was talking...

SANDERS:  In the next two years, the Pentagon hopes to double the number of interrogation graduates.

UNIDENTIFIED MALE:  And that would be really good.

SANDERS:  Kerry Sanders, NBC News, Fort Huachuca, Arizona.

(END VIDEOTAPE)

SANDERS:  Now, Dan, something else that they learn in the school there, military interrogators are told that the military police will be watching their work.  They won‘t necessarily have a microphone in there listening to what is going on, but they will be watching, either for instance in Guantanamo Bay, they have cameras set up on every interrogation room and it‘s the military police responsibility to make sure that the military interrogators are not stepping over the line during the interrogations, physically threatening somebody.  But in this case, in Abu Ghraib, part of the investigation is how that line between the military police and the military investigators got blurred. 

ABRAMS:  Kerry, very quickly, you know you pointed out that they are allowed to attack their pride and ego, but not humiliate.  I mean is there any sort of line that they‘re taught as to where that line is to be drawn? 

SANDERS:  Well, Dan, you know the legal world, that line is never quite precise.  Humiliation though in this case, according to the experts is pretty clear.  For instance, those photographs, but attacking the pride and ego they say is successful to suggest that, look, you lost the war.  Your entire side is done.  Just give up; you are on the losing side.  That‘s attacking the pride and ego, going towards their sense of nationalism.  But posing them for photographs to later humiliate them, they say, is clearly over the line. 

ABRAMS:  Kerry Sanders, a very interesting report.  Thanks a lot. 

SANDERS:  Thank you.

ABRAMS:  Up next, he became the face and voice of New York and even America‘s resilience in the wake of the 9/11 attack, but what was that day really like for former New York Mayor Rudy Giuliani?  We‘ll hear...

(COMMERCIAL BREAK)

ABRAMS:  Today day two for the 9/11 commission in New York, hearing from New York City Mayor Rudy Giuliani and Homeland Security Director Tom Ridge.  To many it was Giuliani who put a heroic face on a very dark day.  Before answering the commission‘s questions, he walked the panel through what he saw and felt on September 11.  He began his remarks by describing having breakfast with friends and then being told of the attack and rushing downtown. 

(BEGIN VIDEO CLIP)

RUDOLPH GIULIANI, FMR. NEW YORK CITY MAYOR:  As we got very, very close to the World Trade Center, one of my police officers said to me and all of us keep looking up, keep looking up, because things were falling down around us and I imagine that was for our own safety.  But when I looked up, at that point, I realized that I saw a man - it wasn‘t debris, that I saw a man hurling himself out of the 102nd, 103rd, 104th floor.  And I stopped—probably for two seconds but it seems like a minute or two—and I was in shock.  I saw people running.  I saw people fleeing which is exactly what we wanted them to do.  I wanted to get them out of the area, but I didn‘t see people knocking each other over.  I didn‘t see people in chaos.  I didn‘t see people in panic.  I didn‘t see people hurting each other, which you also would expect might happen.  And I actually saw acts of people helping each other. 

(END VIDEO CLIP)

ABRAMS:  Coming up, an American attorney on trial for allegedly helping her terrorist client, but first this news update. 

(NEWS BREAK)

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  A landmark trial began today involving a defense attorney charged with helping her client relay messages to his followers and this is not just any client.  He is a known Islamic terrorist.  Defense attorney Lynne Stewart represents Sheik Omar Abdel-Rahman, also known as the “Blind Sheik” convicted in 1995 for encouraging the first attack on the World Trade Center and plots to destroy other New York landmarks. 

Prosecutors say Stewart violated special restrictions placed on her client that limited his communication from prison with the outside world.  They say she misled prison into believing she was talking to her client through a translator while they allege she was actually allowing the Sheik to dictate and receive letters through his translators.  They also claim she made statements on the Sheik‘s behalf to the media, which provided instructions to his followers. 

The indictment alleges—quote—“Stewart periodically interrupted the dictation with extraneous comments and stated explicitly that she would do so from time to time in order to keep the guards from realizing that she was not participating in the conversation.” 

This case has some defense attorneys crying foul.  Joining me to debate it is Georgetown University Law Professor Viet Dinh, who was until recently the assistant Attorney General for the Office of Legal Policy and famed defense attorney Gerry Spence. 

All right, Gerry, let me start with you.  I mean look, if she was doing what they are accusing her of doing, what‘s the problem with going after her? 

GERRY SPENCE, CRIMINAL DEFENSE ATTORNEY:  Well, you know the problem is that if we can simply somehow intimidate lawyers into—to the place where they are afraid, Dan, to take on these cases, that‘s the serious problem involved, the underlying problem here.  Then nobody gets defended and we‘re really back into a factious state.  Let me show you something.  The United States government in this case didn‘t know itself what was the crime. 

They charged her under one set of statutes.  The judge threw them out.  Then they came back and charged her with another set of statutes.  And they file—they are filing briefs in this case that I don‘t think anybody could understand.  I don‘t think the lawyers could understand it.  I know I can‘t understand it.  And, so, if you have got a situation where lawyers can‘t understand what their duty is, it‘s that complicated and the government is trying that hard to convict somebody, they have got a real problem. 

ABRAMS:  Gerry, the issue, as you know, the reason the first case was thrown out was on a definition of personnel and one statute versus another statute and you know that to me doesn‘t seem to be sort of the dispositive issue.  Do you think it is? 

SPENCE:  Well, you see, you are supposed to say—you know the law, Mr. Spence.  Well, yes, I do know the law and here is the law and the judge says no, that isn‘t the law.  The prosecutor says that‘s the law and somebody else says it isn‘t the law.  You know what we‘ve got here is a grandmother, Dan, who has been going out, a 62-year-old grandmother who has been going out making speeches to 100 universities around the country and to activist groups and that‘s the problem.  That‘s the concern of the United States government and Mr. Ashcroft. 

They don‘t like this little old grandmother out there talking about how they are intimidating American lawyers and that‘s for sure.  They certainly are.  They are putting a chill on that very proposition that, you know, if the lawyer can‘t fight for his client then the client has no defense. 

ABRAMS:  Let‘s let a man who used to work for Mr. Ashcroft respond. 

Go ahead Viet Dinh.

VIET DINH, FMR. ASST. ATTORNEY GENERAL:  It‘s fairly straightforward to me.  If my client tells me to go tell a hit man to go “Kill Bill”, the fact that I did that and I‘m a lawyer doesn‘t mean that I am somehow absolved of my crime of helping to “Kill Bill.”  The fact that I‘m a lawyer in no way insulates me from prosecution.  A law degree is not a get out of jail free card.  If the facts are as alleged and if the government proves the case, then I think this case is exactly that hypothetical. 

ABRAMS:  It seems to me the easier case for them to prove—the question of whether she was intentionally interrupting in this effort to sort of hide the fact that the “Blind Sheik” was giving information to the translator, by the way, who‘s also charged here, you know the fact that she held this press conference and says that that the Sheik is—quote—and this is a—quote—“I‘m withdrawing my support for the cessation of the operations”, talking about you know withdrawing his support from some ceasefire, that seems to be a pretty straightforward violation of the rules, right? 

DINH:  It‘s not only a violation of the rule, but is a tantamount to an invitation for the terrorist network to reactivate itself.  It is basically saying I am breaking my commitment to non-violence and thereby calling for supporters in the Islamic group, which is a designated terrorist organization, to go out and commit more crimes.  And the evidence or at least the allegation of this case is that that group indeed committed those acts in Luxor (ph), Egypt, killing the tourists at that holy site.  And so what we‘re talking about here, if the government can prove its case, is a straightforward passing of the order to go kill innocent civilians.  I think that the fact that she is a lawyer in no way absolves her of the alleged crime. 

(CROSSTALK)

DINH:  I have no—I have never seen Gerry Spence nor Lynne Stewart or any defense lawyer to be actually intimidated.  What they cannot do is to cross the line from zealous advocacy into illegal conduct. 

(CROSSTALK)

SPENCE:  Well, I agree with your guest “Kill Bill” idea.  Lawyers can‘t say go out and “Kill Bill” or help people go out and “Kill Bill” and everybody knows that.  But apparently the government has a different proposition here.  These people aren‘t supposed to talk to anybody, aren‘t supposed to get any telephone calls from anybody, aren‘t supposed to community to anybody, aren‘t supposed to get any mail from anybody, aren‘t supposed to have any visitors with anybody.  So you know, it puts the defense attorney in the position where all of a sudden he can‘t really defend his client or her client under the circumstances of this law, whatever the law is. 

So, I think Mr. Ashcroft has to back up and say, you know, what are we really doing here?  Are we really trying to intimidate lawyers from defending clients, defending people who are charged?  And you know if he can intimidate lawyers in this situation, he can intimidate lawyers in every situation.  And if the government doesn‘t know what its doing, how do they expect the defense attorney? 

ABRAMS:  I‘m going to let Professor Dinh respond and I just want to play this piece of sound from Lynne Stewart herself talking about the case.

(BEGIN VIDEO CLIP)

LYNNE STEWART, DEFENSE ATTORNEY:  I emphatically say I am not guilty and I repeat that, emphatically. 

(END VIDEO CLIP)

ABRAMS:  OK, I‘m sure that‘s not going to change Viet Dinh‘s response. 

Go ahead Professor...

DINH:  I think that Mr. Spence raises an interesting point regarding the lack of clarity in the law.  But here, the law is very clear.  It prohibits you from giving support to a terrorist with the intention of aiding terrorist acts.  And that‘s what the government is alleging here.  She is giving support to the “Blind Sheik” in order to give orders to go kill innocent civilians and commit terrorist acts...

SPENCE:  Listen to this...

(CROSSTALK)

DINH:  The government still has to...

SPENCE:  Listen to this, Dan. 

(CROSSTALK)

ABRAMS:  ... Gerry has his glasses on.  So, go ahead.

SPENCE:  I got—I‘m going to read you a couple of lines here from the United States government‘s brief.  It‘s ironic that Stewart by making her reapplied (UNINTELLIGIBLE) claim professes to have lack knowledge that the conduct at issue in counts four and five enabling an otherwise isolated terrorist leader to resume such activities could constitute the provision concealment disguisement of material support and resources of terrorist activity.  What the hell does that mean? 

I don‘t know what that means.  I don‘t think anybody knows what that means.  And yet the government is arguing to the court.  It is not clear law.  Nobody thinks it‘s a clear law.  Her lawyers have gotten—they have put this guy under indictment under one set of laws.  The judge says that isn‘t the law and they bring in another set of laws...

DINH:  Gerry, let me try this. 

(CROSSTALK)

DINH:  English is not my second—is only my second language but even I understood what you just very quickly read.  It says very simply...

SPENCE:  Well you‘re smarter than I am. 

DINH:  ... that it‘s inconceivable...

SPENCE:  You‘re quicker than I am.

DINH:  ... it is inconceivable that Lynne Stewart, an intelligent lawyer...

(LAUGHTER)

DINH:  ... cannot understand that when she stands out there saying the ceasefire is...

SPENCE:  The judge must be dumb too...

DINH:  ... that people are not going to go out and commit more terrorist acts...

ABRAMS:  All right.

DINH:  It‘s a simple common sense.

SPENCE:  The judge must be kind of a slow ball too because he didn‘t understand it and threw it out. 

(CROSSTALK)

SPENCE:  And now he‘s looking at the second one. 

ABRAMS:  Well, I don‘t know if the judge didn‘t understand it, the judge said it didn‘t apply based on the language in the first indictment.  All right...

SPENCE:  All right...

ABRAMS:  Right, that‘s not—Gerry, what I said isn‘t wrong, is it? 

DINH:  The judge...

ABRAMS:  All right, all right, I got to wrap it.  It‘s always great to have Gerry Spence.  And Viet Dinh, we‘ve been trying to get you on the show for a while.  I appreciate you coming on.  It‘s great to have both of you. 

DINH:  Take care. 

ABRAMS:  Coming up, protests.  They come.  They heckle.  They show up at congressional hearings.  The question, should they be prosecuted or is it just freedom of speech? 

And your e-mails on the governator‘s right to try to terminate his bobblehead. 

(COMMERCIAL BREAK)

ABRAMS:  You‘ve seen it again and again, protesters coming to important hearings, really just being there in an effort to disrupt them.  It happened in the hearings over the Abu Ghraib prison and then again today at the 9/11 commission.  The question we will ask, is it time to come down hard on them, prosecute them?  Well, here are a couple of examples.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I want to know why 300 firemen died. 

(CROSSTALK)

UNIDENTIFIED FEMALE:  Let‘s ask real questions.  Is that unfair? 

(CROSSTALK)

(END VIDEO CLIP)

ABRAMS:  We are told that none of the protesters were arrested.  So tonight we ask this question.  Should they have been?  Should protesters who come to disrupt congressional hearings be prosecuted more often?  I‘m joined now by David Horowitz, the president and founder of the Center for the Study of Popular Culture who believes more legal action should be taken and Democratic consultant and MSNBC analyst Flavia Colgan who thinks that it should not.

All right, Mr. Horowitz, what do you think they should do? 

DAVID HOROWITZ, PRES, CENTER FOR STUDY OF POP. CULTURE:  Well, I‘m sure they should draw a hard line.  As you pointed out in your commentary, this isn‘t speech.  This is a political action.  The group that organized this, Code Pink has ties to a terrorist state, Cuba.  It‘s got Baghdad operation whose sole purpose is to sabotage the American peace efforts in Baghdad.  It‘s headed by a pro-Saddam Iraqi...

ABRAMS:  But as you know, sort of whether they are good people or bad people isn‘t the issue, right?  The question is...

HOROWITZ:  No, no...

ABRAMS:  ... should they be able to come to a congressional hearing and voice their opinion?

HOROWITZ:  No, I‘m putting flesh on your statement and that is this is a political action.  It‘s not speech.  It‘s very bad in any context to have civil disorder like this.  There is a procedure for these hearings, you know.  You can see the chaos it caused.  We have terrorists lurking about.  This is a dangerous situation.  Fortunately, this didn‘t result in any terrorist act but it could. 

There has been, you know, there have been assassinations in the U.S.  congressional chamber before.  I think it‘s time to really assert, you know, to defend the civil space.  Let‘s have law and order, and order means that people do not get up at these hearings in an organized fashion and disrupt them.  This is very different from, you know, sometimes a spectator can get emotional...

ABRAMS:  All right...

HOROWITZ:  ... as in the 9/11 that may have happened, in the 9/11 hearings, but this is an organized political action and this group must be held responsible.

ABRAMS:  Now Flavia, let me read you a law, though, that says disruption of Congress is identified as the following.  Utter loud, threatening or abusive language or engage in disorderly or disruptive conduct at any place in the grounds or in any of the Capitol buildings with the intent to impede, disrupt or disturb the orderly conduct of a session of Congress or either House of Congress.

It seems to me, and look, the 9/11 commission in New York a different issue, but here when you are talking about hearings where Donald Rumsfeld is in front of a Senate committee, it seems to me that‘s a clear violation of the law. 

FLAVIA COLGAN, DEMOCRATIC CONSULTANT:  Well, David, first of all, I think his outrage is a little misguided.  I think there is plenty to be outraged about in those hearings.  And a 40 or 50-second disruption is not causing harm to our men and women.  I would posit that not knowing what your command structure is or not even knowing what interrogators were told is a lot more troubling. 

ABRAMS:  ... it‘s not a question of...

COLGAN:  ... families that were sitting in that hearing room this morning, which was basically a Rudy for Giuliani rally, and they were asking to hear about the two, you know two-way radios.  They wanted to know about the call center, and they reached out in a way emotional visceral way, which you know frankly, they are the reason the commission—the 9/11 commission even exists.

ABRAMS:  But again...

COLGAN:  And they were escorted out...

ABRAMS:  Let me say to you the same thing...

COLGAN:  ... they were escorted out...

ABRAMS:  ... the same thing I said to Mr. Horowitz, which is I understand the point of sort of either—it is sympathetic.  I mean there is a difference to me between families who are frustrated coming to the 9/11 commission and a sort of professional protest group coming to Congress, but should be there, Flavia?  I mean I guess...

COLGAN:  Well Dan...

ABRAMS:  ... as a legal matter you should be able to say either one of them should be able to speak up. 

COLGAN:  Well, Dan, as an American, I‘m enormously frustrated that I got to read the report of the prison abuses on the Internet before...

ABRAMS:  But that‘s not the answer to my question. 

COLGAN:  ... or Donald Rumsfeld did and I think that these people have

every right to voice their opinion.  They were escorted out.  They did not

·         I mean we would be having a very different conversation if these people were putting up a big fuss.  They had 30 or 40 seconds of civil disobedience, which is large part of the history of our country.  We are fighting a war and why should we undermine that which we‘re fighting for, which is to be a beacon of democracy?  And if we can‘t stand for 20 or 30 seconds of someone voicing their opinion and then peacefully leaving the commission, you know I don‘t know where we are as a nation...

ABRAMS:  Go ahead David.

COLGAN:  ... and I think that...

HOROWITZ:  But what is civil disobedience...

ABRAMS:  I don‘t want to talk about what we should focus on because this is what...

(CROSSTALK)

ABRAMS:  Go ahead David.

HOROWITZ:  Civil disobedience, you get punished for.  Martin Luther King went to jail—not that I want to associate these anti-American radicals with Martin Luther King.  The issue is one of civil order.  We have procedures in our country and people often forget them.  If you don‘t like the government, you vote for another one and change it.  You don‘t—for example, this group organized demonstrations in the streets while our soldiers were in Baghdad...

ABRAMS:  But that‘s OK, right...

(CROSSTALK)

ABRAMS:  The demonstrations, David, are OK, right...

(CROSSTALK)

ABRAMS:  ... you‘re OK with people holding protests...

HOROWITZ:  No, no, no.  Wait.  Let me finish.  They deliberately planned illegal demonstrations to block traffic, no permits as soon as our troops were in harm‘s way, which means that homeland security, ambulances, for example, would not be able to get through.  This is a principle here.  We have orderly procedures and if we don‘t defend them we‘re going to have a breakdown sooner or later and these people...

ABRAMS:  Flavia, final 10 seconds...

(CROSSTALK)

ABRAMS:  ... final 10 seconds Flavia.

COLGAN:  Well, this is where the blurry line comes in and I think that trying to say let‘s put these people in prison is really going to have a chilling affect on those in the courtroom, but also more importantly on those out of the courtroom to express their opinions.  And I think that that‘s a much more negative impact than 20 or 30 seconds of an outburst...

ABRAMS:  All right.

COLGAN:  ... which is then—which then these people leave very peacefully...

(CROSSTALK)

COLGAN:  ... and I think we should keep our focus on the most important issues. 

ABRAMS:  Flavia Colgan and David Horowitz, thanks a lot for coming on the program. 

When we come back, a lot of your lighter e-mails and my lighter responses. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, my “Closing Argument”—the shades of gray you find when trying to place blame for the Iraqi prisoner abuse. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—who would have thought when the first prison abuse photos were released that the whole scandal might come to be defined by shades of gray rather than black and white, particularly since you have those color photos?  Sure, it‘s black and white when it come to right and wrong.  But it may get grayer when the question is, who is to blame?  Everyone is pointing fingers.  Those who knew something was happening, but were not involved and yet did nothing to stop it generally seem to be saying they did not know exactly how bad it had become and they blame the soldiers who committed the act. 

OK, the soldiers seen in the pictures are pointing fingers at their superiors saying they were ordered to do it and were told there was even some logic behind it like trying to create pictures to scare future prisoners into talking.  Their superiors generally saying we certainly did not tell them to do that while some also claiming they‘d been encouraged to soften up prisoners.  The highest-level officials saying we had no idea this was happening, never would have condoned it.  There is some evidence the Pentagon seemed willing to accept tougher treatment of prisoners. 

So the bottom line question may become, how did get tougher in your questioning tactics turn into this?  It could end up that the Pentagon and the highest-level officials made it clear they needed more answers from the prison.  They‘re willing to tolerate some tougher treatment.  That some of the commanding officers conveyed the urgent need to use tough tactics to get intelligence without discussing the protections the prisoners must be afforded.  And that somehow the guards took—on the scene took that to mean they could use whatever means necessary to get information, including prisoners, you know humiliating them, et cetera and that it ultimately became a free for all. 

There will be plenty of blame to go around, but I fear the answers may not be entirely satisfying.  Not because we won‘t know why and how it happened but because the answers may involve blaming different people to different degrees on different issues and that may mean that even though the photos are clear, the answers may not be. 

I‘ve had my say.  Now it is time for “Your Rebuttal”.  Tonight we are just going to go over some of the lighter e-mails like the one about last night‘s segment, Arnold Schwarzenegger‘s attorney filing a lawsuit against the makers of Bosley bobbers for making a bobblehead doll of Governor Schwarzenegger.  Schwarzenegger‘s attorney claim the dolls violate the governor‘s right to his image. 

I jokingly asked Todd Bosley, one of the makers, if he was considering a Dan Abrams bobblehead doll.  While many of you wrote in saying you would actually buy one, Bruce Tone thinks it would be fitting for another reason.

Quote—“Since the heads of figures portrayed with bobblehead dolls are extremely large proportionally, it would be doubly fitting for one to be made of you.”  Ha, ha, ha. 

Ruth Rahenkamp from San Diego has joined the ever expanding ABRAMS REPORT grammar and diction police.  “Mr. Abrams, I‘m writing because I heard you say my bad.  Proper English for the basketball court, but nationwide TV, I think not.”  You‘re right, Ruth.  My bad. 

And finally (UNINTELLIGIBLE) Patricia of North Carolina asks, “The other day in the grocery store I picked up a jar of Emeril‘s spaghetti sauce, the label listed vodka as one of the ingredients.  It tasted just like every other sauce.  You definitely could not tell it had liquor in it.  Isn‘t there a law forbidding liquor to be sold in grocery stores?”

I had to think about this one because it‘s true.  You can‘t sell hard liquor store in almost any groceries stores and vodka sauce has vodka.  I think rather than provide legal analysis I believe I‘m going to have provide a culinary one.  My understanding is that before the vodka makes it into the sauce, the alcohol is burned out making it effectively nonalcoholic.  But I have to admit I was stumped, too, when I first read your note. 

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

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

I‘ll see you tomorrow.

END   

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