updated 6/29/2004 10:46:44 AM ET 2004-06-29T14:46:44

Guests:  Barry McCaffrey, Ruth Wedgwood, John Yoo, Richard Fallon, Dean Johnson, Paula Canny, Dana Priest

DAN ABRAMS, HOST:  Coming up, the U.S. surprises the world and transfers power to Iraq early. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Trying to catch militants and terrorists off guard, the U.S. turns over sovereignty to the Iraqis two days ahead of schedule.  What does it mean for Saddam Hussein still in American custody? 

Plus, terrorists in Iraq threaten to behead another American, this time, a U.S. Marine. 

And the Supreme Court deals the administration a major blow, ruling that even suspected terrorists must be able to have lawyers and challenge their detention in some sort of court.

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  We‘re also going to get the latest on the Scott Peterson case.  There are new photos of police evidence that were released today. 

But first up on the docket tonight, it took the world by surprise and yes, it is official. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT:  Earlier today, 15 months after the liberation of Iraq, and two days ahead of schedule, the world witnessed the arrival of a free and sovereign Iraqi government. 

(END VIDEO CLIP)

ABRAMS:  And as one of its first sovereign acts, Iraq‘s interim Prime Minister, Iyad Allawi, says his government wants to take custody of Saddam Hussein in the next few days.  While Saddam could be charged by an Iraqi judge this week, the U.S. plans to retain physical custody of Saddam and keep him locked up in a U.S.-controlled jail at least for now. 

(BEGIN VIDEO CLIP)

AMB. ADAM ERELI, STATE DEPT. SPOKESMAN:  It‘s a little bit premature to give you a lot of details, because frankly, they haven‘t been worked out. 

(END VIDEO CLIP)

ABRAMS:  But other details have been worked out, including a coalition order that provides immunity from Iraqi law for coalition soldiers and contractors. 

(BEGIN VIDEO CLIP)

COLIN POWELL, SECRETARY OF STATE:  Number 17, as it‘s called, which will grant those kinds of immunities.  It‘s anticipated that such immunities were going to be required. 

(END VIDEO CLIP)

ABRAMS:  Now, this coalition order is supposed to stay in effect until an elected Iraqi government takes power, no later than January 2006, but what happens if Iraq‘s new sovereign government decides to take Saddam or his cronies physically into custody or tries to arrest and charge coalition troops with crimes?  What happens? 

I‘m joined now by MSNBC military analyst and retired U.S. Army General Barry McCaffrey and by Ruth Wedgwood, international law professor at Johns Hopkins University. 

All right, General McCaffrey, first let me ask you about this taking Saddam into custody issue.  I mean it sounds like they‘re talking about two different issues.  One is physical custody and the other is legal custody.

GEN. BARRY MCCAFFREY, (RET.), U.S. ARMY:  Well I think we‘re just playing out a political fiction.  It would be a disaster if we handed him over and he either escaped or was murdered, so we‘re going to retain custody of him until we see a police force, a prison system, a system of justice and it‘s hard to tell when that will be. 

ABRAMS:  Professor Wedgwood, would that become a legal problem in Iraq? 

RUTH WEDGWOOD, INTERNATIONAL LAW PROFESSOR:  I think Barry is right. 

The Iraqi authorities are not going to want to take any chance like that.  It‘s important to them to be the retaining power, but we can be their subcontractor.  It‘s also the case that the U.S. can, if it feels that Saddam has committed war crimes against our troops, have a separate and independent basis for holding him, but I think our function here is to serve as jailer. 

ABRAMS:  So, General, you don‘t think it‘s a concern then that now they have sovereignty, now they‘ve got their government, that they‘re going to say all right look, you know thank you, we‘re not asking the troops to leave, but we are saying that we want Saddam Hussein. 

MCCAFFREY:  Well we‘re on unchartered ground, Dan.  There‘s no question.  We deliberately have accepted political ambiguity.  There is no real status of forces agreement.  It is not clear to what extent we‘ll exercise unilateral military or political authority, so there are deep waters ahead of us.  There‘s a lot of goodwill I think on the part of this interim government.  We‘ve got $18 billion they want.  They know they can‘t maintain security.  We‘ve got a great ambassador, John Negroponte.  We‘ve got six difficult, dangerous months ahead of us. 

ABRAMS:  Professor, let me ask you about Saddam‘s legal team.  He‘s supposed to have a 20-person legal team appointed by his wife, one of his attorneys today demanded his release and I quote—“International law dictates that in such a situation the occupation authority must release all prisoners of war including Mr. President Saddam and let them choose to leave to any country they wish to go to under the protections of the occupying power and the United Nations.”

Release Saddam? 

WEDGWOOD:  Well, again, there are two options.  One is that we are entitled to try people who have committed war crimes against us.  Try them reasonably promptly, but to try them, so part of the parcel of that is having them in custody.  And secondly, if the new Iraqi authorities ask us to serve as their agents, whatever Saddam‘s lawyers say is a claim under Iraqi law, but there‘s nothing that requires that somebody be released on instantaneous bail.  The French and the Spanish, for example, have been keeping suspects in terrorism cases in custody for as long as three and four years. 

ABRAMS:  What about the other soldiers and contractors, any new issues going to arise out of the fact that now the Iraqis have sovereignty? 

WEDGWOOD:  Well, it‘s customary actually when you have friendly troops sent to a friendly country to have what is called a status of forces agreement and typically, the sending country remains the responsible authority for disciplining anybody who acts out of line.  That‘s been typical of NATO.  It‘s been typical of U.N. peacekeeping troops.  The new international criminal court is by far the exception to that old fashioned rule.  So I don‘t think the Iraqi authorities are likely to have too much trouble with that one. 

ABRAMS:  General, any concern that the U.S. prison guards who are accused of the abuse at Abu Ghraib could suddenly become subject to Iraqi law?  I mean this is—I think some people don‘t understand what it means to be tried by a military tribunal in Iraq.  It doesn‘t mean to be tried by an Iraqi court. 

MCCAFFREY:  Oh, yes.  I‘m confident we will retain uniform code of military justice authority over all deployed U.S. forces.  However, it is not unlikely that in the coming year or longer, that we‘ll run into repeated instances in which the Iraqis may have searched sovereign jurisdiction, customs duties on supplies coming into Iraq to be used in the construction of the new economy.  You know, it‘s hard to say.  As Ruth mentions, we normally have a pretty well defined status of forces agreement.  We‘re going to have to work that out on the fly in some very difficult months ahead. 

ABRAMS:  General, is this going to change anything militarily for our troops, the fact that there‘s this perception now that the Iraqis are in control?  I mean would you expect that things might get worse before they get better? 

MCCAFFREY:  Well, I do, to be honest.  You know there is no national police that‘s effective.  There is no army.  They‘ve got three or 4,000 troops.  We‘ve got a brilliant young officer, Lieutenant Dave Petraeus, who is trying to build such a force.  We need a year to five to construct that.  So we have no option.  We‘ve got a three star general, Tom Metz, who is supposed to run the coalition war fighting effort.  He‘s got to maintain open supply roads from Kuwait up to these military forces.  He‘s got to maintain control of the capital.  We can‘t have overt civil war breaking out.  In those cases, there‘s going to have to be unilateral coalition military action. 

ABRAMS:  All right.  General McCaffrey and Professor Wedgwood, thank you very much.  Appreciate it. 

Coming up, Iraqi terrorists hold a U.S. Marine and threaten to behead him if the U.S. doesn‘t release all its prisoners in Iraq. 

And up next, a major blow to the administration‘s war on terror.  The Supreme Court rules suspected terrorists have a right to an attorney and to their day in court. 

And the latest in the Scott Peterson case.  The court releases new photos of evidence. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, some big rulings from the U.S. Supreme Court as it relates to the war on terror.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  It was a much anticipated ruling from the nation‘s highest court.  At issue—can the government hold suspected terrorists without giving them lawyers or any access to the courts?  On the whole, I believe that these rulings were a setback for the administration, but the administration did prevail in one regard.  A 5-4 majority found the government could hold even an American citizen captured in Afghanistan and held for allegedly aiding the Taliban before September 11 as an enemy combatant, meaning neither a prisoner of war nor a criminal defendant entitled to the protections of either. 

That means the administration can hold Yaser Hamdi and presumably any American citizen it deems to be a terrorist threat for an indefinite amount of time without abiding by the Geneva Convention and without guaranteeing him a trial, at least it seems someone who was captured abroad.  The government lost and what seems to me a more important issue, eight justices agreed that Hamdi should be able to have his day in court to challenge his detention and treatment, something the Bush administration fought vigorously against.

The opinion reads—quote—“We hold that a citizen detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the government‘s factual assertions before a neutral decisionmaker.”

The court went further.  In another case, five justices agreed that even non-citizens held at Guantanamo Bay have the same right to challenge their detention.  Now the court declined to rule on the merits.  Another case, U.S. citizen held as an enemy combatant, the government has been holding Jose Padilla at a Navy brig in South Carolina for more than two years.  They say Padilla was planning a biological attack on the U.S. using a dirty bomb.  The court ruled Padilla must refile a lawsuit challenging his detention in the proper lower court. 

Joining me now to discuss today‘s ruling is Harvard Law School Professor Richard Fallon and U.C. Berkeley Law Professor John Yoo, who served as a deputy assistant attorney general in the office of legal counsel at the Justice Department.  Thank you both very much for joining us.  Appreciate it.

All right, Professor Yoo, do you agree with my analysis that on the whole, this is a setback for the administration because now enemy combatants have access to the courts? 

JOHN YOO, U.C. BERKELEY LAW PROFESSOR:  No, I don‘t think so.  I think the Hamdi case, the government won much of the basic legal arguments it‘s been making throughout the war on terrorism, that we are in a war, that enemy combatants can be captured and detained in that war, that U.S.  citizens can fall in to that class of enemy combatants.  Remember that the plaintiffs in this case wanted Mr. Hamdi tried as a criminal defendant and the Supreme Court made clear that even citizens were enemy combatants can be detained without a criminal process at all. 

But the court left a lot of the details in that case up to future decisions.  We don‘t know, for example, when the right to a lawyer attaches or not, what that lawyer is supposed to do.  Who that neutral decisionmaker you refer to is going to be.  Could it be a military officer, for example?  Does it have to be another judge?

ABRAMS:  Yes.

YOO:  I think on the Guantanamo Bay case, you‘re quite right.  That is a setback to the government.  But again, even in the Guantanamo Bay case, the court really left all the important questions unanswered.  For example, do the detainees at Guantanamo Bay have a right to a lawyer?  That‘s actually unanswered.  What kind of process does the military have to provide them in order to give them any kind of meaningful right to a hearing that can then be reviewed by a federal judge. 

ABRAMS:  Professor Fallon, you know it seems to me that on the whole though, you know, Professor Yoo, you know is not misstating what happened, but I think on the whole it‘s pretty fair to say that the administration wouldn‘t be happy with the outcome based on what they were asking for from the beginning. 

RICHARD FALLON, HARVARD LAW PROFESSOR:  I would very much agree with that.  I think the administration was basically taking the position that fighting a war in too serious a matter for the courts to have any role, and the Supreme Court of the United States today said well, yes, that‘s true on the battlefield, but it‘s not true when you take people from the battlefield and put them in an American-controlled territory, such as Guantanamo, and it‘s certainly not true with respect to American citizens.  So on the most basic point, I think the administration today did get a big setback.  I agree with John Yoo, however, that when you get to the point of figuring out the details, the court today actually left a lot of questions open. 

ABRAMS:  What about the issue of do the people at Guantanamo have the right to a lawyer?  Do you agree with Professor Yoo that that is unclear? 

FALLON:  I think how much access they have to a lawyer is unclear, but I think simply by holding that they have the right to seek the writ of habeas corpus, it‘s implicit that lawyers have to be able to act on their behalf and at some point I expect courts will order that they‘re entitled to have interaction with their lawyers. 

ABRAMS:  Let me read another quote from the Hamdi decision.  The court said, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation‘s citizens.”

You know Professor Yoo, it seems to me that if the government had gotten its act together at Guantanamo Bay a lot earlier and started establishing some sort of tribunal down at Guantanamo Bay, and established something that said, you can come here to us, we will determine somehow objectively that you ought to be here, that they wouldn‘t be in the position that they‘re in right now. 

YOO:  Well of course the government thought it was doing that, just not in the process of a hearing by having multiple layers of review trying to figure out who exactly these people were, and what their role in the al Qaeda or Taliban networks were.  But of course right now what the government should do and I think it‘s been moving to do that even before the case came out was to create some kind of process that will reexamine and reevaluate the factual evidence that led the government...

ABRAMS:  Why didn‘t they do it earlier, though?  I mean you say that it‘s levels of review.  All you‘re saying is that like you know someone with a higher rank comes in and looks at the same guy and says OK you know he‘s staying, but I mean, but why didn‘t they just enact something formally that said look, you know, even if it‘s the military doing the examination, sure, someone might say that‘s not a neutral observer, but at least it would have given the appearance of giving a hearing to these people. 

YOO:  Again, I think the government just did not feel that a hearing was the right way to do it.  I think in the end, both the government and what you‘re talking about trying to reach the same goal, which is not to keep people in Guantanamo Bay who don‘t belong there.  The government doesn‘t have an interest in wasting money and keeping innocent people in Guantanamo Bay either.  The question is really what is going to be the format of the kind of review process you want to have and now the Supreme Court has stepped in and said you have to have some kind hearing.  Of course, we have no idea what that‘s going to be. 

ABRAMS:  Professor Fallon, what happens now?  I mean as a practical matter, are we going to now see, you know, hundreds of lawsuits filed by the various people held at Guantanamo Bay saying, I want—either I want a lawyer initially and, more importantly, I want access to the U.S. courts.

FALLON:  Yes, I think that‘s exactly what will happen, and I think there will be two kinds of claims made.  One kind of claim will be that they are entitled to be released.  The other kind of claim may have to do with the conditions of detention, and what‘s going to happen when those claims come before the court is a question that the Supreme Court left wide open.  It didn‘t say anything whatsoever about what a court is supposed to do when those lawyers actually come in, making those complaints. 

ABRAMS:  Are you disappointed by that, the fact that they haven‘t sort of set any rules or is that the job of the legislature and not the courts? 

FALLON:  I think this was a very cautious Supreme Court today that laid down some very basic rules, but went out of its way not to go a single step further than it had to. 

ABRAMS:  And very quickly, Professor Yoo, does this mean now it‘s in the legislature‘s hands or the president is going of to have to establish a system? 

YOO:  Well the default will be that the president will work it out with the trial courts case by case, but I think what you suggest is completely right.  This is a place where Congress really can and should step in, and set out some procedures about how this habeas corpus process is going to work rather than leave it up to the random district court judge who happens to get the first case. 

ABRAMS:  And finally, very quickly on this Padilla case, Professor Yoo, the court sort of doing it on a jurisdictional issue saying you should have gone to a different lower court in essence.  Do these rulings tell you necessarily that the court is saying that a U.S. citizen captured on U.S.  soil entitled to a hearing and lawyer? 

YOO:  I think that‘s right.  I think the Supreme Court definitely said

·         set out the kind of process Padilla should get.  I think one thing Dick said is quite  right.  The court did not tell us the substantive standards in a lot of these cases and so we don‘t know whether the court in the future might draw a distinction between Hamdi and Padilla, Hamdi being captured in Afghanistan, Padilla being captured in the United States.  Right now it doesn‘t seem that makes a difference from these opinions, but we don‘t know what the Supreme Court is going to do two or three years from now when this case eventually gets there again.

ABRAMS:  Very quickly Professor Yoo, do you think the administration is surprised based on your experience there as to the court‘s rulings in general? 

YOO:  I think the administration is probably surprised, but at the same time, you‘ve seen signs that they‘ve been preparing for it, there have been a lot of floating of proposals for review processes already.  Hamdi and Padilla were given lawyers already by discretion, so I think the administration was preparing for the worst, but you know, of course, no one ever wants to lose a case like this either. 

ABRAMS:  Yes.  All right.  Professor Fallon and Professor Yoo, thanks very much for coming on the program.  Appreciate it.

YOO:  Thank you.

FALLON:  Thank you.

ABRAMS:  Coming up, terrorists holding yet another American hostage, threatening to kill him if their supposed demands aren‘t met, but this time their hostage is not a civilian.  He‘s a U.S. Marine. 

And the Scott Peterson trial for the past week both the prosecution and defense have been talking about police evidence, now we have newly released photos of that evidence.  Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Iraqi terrorists holding a U.S. Marine threaten to behead him if the U.S. doesn‘t release all its prisoners in Iraq.  First the headlines. 

(NEWS BREAK)

ABRAMS:  We are back.  Day 16 in the Scott Peterson case and for the first time the court releasing photos of what prosecutors say is the murder scene.  Also today, Detective Al Brocchini back on the stand for a fourth day of testimony.  Before we talk about what happened in court today, the just-released evidence photos, pictures of the Petersons‘ home, the boat, the mop and that crumpled rug we‘ve heard so much about in this case. 

Prosecutors believe Peterson killed his wife in their Modesto home, dragged her body across the floor, which caused this rug to crumple up against the doorway.  Peterson told police his dog and cat must have been playing on it and that he cleaned up the scene using this mop and bucket.  Peterson said his wife was mopping the floor the morning she went missing. 

Prosecutors don‘t buy it.  The Petersons‘ maid testifying she mopped the floor just the day before and used this two-day fishing license.  Peterson took his 14-foot aluminum fishing boat, seen here in Peterson‘s warehouse, to the San Francisco bay.  Prosecutors say that he used it to transport his wife‘s body, then weighed it down with concrete anchors, anchors they say Peterson made in his warehouse specifically for that purpose.  And that he dumped her body near—do we have that—here—the small, uninhabited island in the San Francisco bay. 

In opening statements prosecutors said an expert will testify the bodies washed up exactly where the tides would have taken them if they were dumped off of Brooks Island.  Now remember, Peterson places himself near the island Christmas Eve.  He says he was fishing for sturgeon.  Before we have our legal panel weigh in on it, let‘s go to the courthouse to find out what happened today.  MSNBC‘s Jennifer London is there. 

So Jennifer, the judge began the day by scolding the Modesto P.D.

JENNIFER LONDON, MSNBC CORRESPONDENT:  He did, Dan.  He came out this morning reminding everyone that there is a gag order in this case and he warned the Modesto Police Department there will be trouble if it is ignored again.  This coming in response to a sergeant last Friday speaking out about the case. 

Now in terms of the testimony today, Allen Brocchini back on the stand for the fourth day.  Mark Geragos really focusing on what the police did not do.  Witnesses the police did not follow up with who claimed to have seen Laci Peterson the day she disappeared.  We also heard about a tip coming from the police department in the nearby town of Tracy.  Police saying they are looking for a suspect who is wanted in an attempted kidnapping earlier in December. 

They describe that suspect as being a person of Pacific Islander descent.  Then we heard about a break-in at the Peterson‘s home on January 19.  A woman admits to have breaking into the house, she stole a couple of items and then she told Detective Brocchini that around the time Laci disappeared she was talking with some of her friends, one of them is described as a Pacific Islander. 

The importance here, Dan, remember, the defense has said that someone saw a pregnant woman being pushed into a van by a male on Christmas Eve.  This male is described as not being black but having dark skin, perhaps a Pacific Islander?  The testimony did not get that far. 

Now Dan, while at times it did get tense inside the courtroom, the families of both Scott Peterson and Laci Peterson, things are getting tense outside the courtroom as well.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  If you can‘t dazzle them with brilliance you baffle them with bull.

UNIDENTIFIED FEMALE:  People need to realize he‘s not getting off because he has a good attorney.  He‘s getting off because he‘s innocent. 

(END VIDEO CLIP)

LONDON:  Both of the family members very supportive of each side.  We see them every day at the courthouse.  Dan, Detective Brocchini is still on the stand.  We understand he is being cross-examined still by Mark Geragos.  They are talking about the tip that came into the Modesto police line from Amber Frey.

ABRAMS:  All right.  Jennifer London, thanks very much.  Appreciate it.

All right, so I want to get this straight before I go to my panel.  So basically, you have this woman, Kim McGregor, who breaks into the Peterson home like a month later and as it turns out, she says that there—that somebody—her boyfriend had two Hawaiian roommates and suggesting, well, maybe the fact that this woman who broke into the house a month after the murders had an ex-boyfriend who had Hawaiian roommates, maybe they‘re the ones really responsible. 

I mean—let me bring in my guests here—Dean Johnson and Paula Canny.  All right, Dean, this just seems to me like the ultimate long shot.  I mean the defense has been doing well up to this point.  Everyone has been saying that the prosecution case may be falling apart, but this just seems to me to be so—such a long shot argument. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Oh, yes.  This is one of the many red herrings that Mark Geragos has laid out.  This is the most elaborate one.  But now we‘re supposed to believe that this woman who lived somewhere around the Petersons was obsessed with Scott Peterson, even though she had never met Scott Peterson before Laci went missing, that she met with a couple of Pacific Islanders who were perfect strangers to her and said oh, you know what, I‘d like to become Laci Peterson and replace Laci in Scott‘s life, so would you go out and abduct her and these people abduct her, possibly to somewhere in Alameda County, which is nearby and that they later kill her and dump her in the water.  He‘s really stretching it and at the end of this case, we‘re going of to have to wonder whether he can come up with that other reasonable explanation. 

ABRAMS:  Yes...

JOHNSON:  There are all kinds of wild stories, but he‘s certainly not generating a reasonable explanation at this point. 

ABRAMS:  ... and Paula Canny, it seems to me when things are going so well for the defense, as they have been, you know, the prosecution case in many ways seemingly falling apart, to throw out this seemingly absurd theory, really just undermines it seems to me the credibility of the defense. 

PAULA CANNY, CRIMINAL DEFENSE ATTORNEY:  Well, I actually disagree with what Dean had just said.  The point of what Geragos‘ cross-examination is isn‘t to necessarily raise this other theory.  It‘s to demonstrate the absolute ineptitude of the Modesto Police Department.  The judge has specifically said several times to the jury, that the focus here is the reasonableness of Detective Brocchini‘s behavior.  And so Geragos is cross examining Brocchini to demonstrate every time that he got yet another lead about the van or some other—what they did just before the break, was the witnesses that had seen Laci on Christmas Eve walking that dog, that Detective Brocchini never followed up...

ABRAMS:  Right, but that‘s a separate issue...

CANNY:  ... and interviewed them. 

ABRAMS:  That‘s a separate issue.  I‘m focusing specifically on this woman who breaks into the house a month afterwards...

CANNY:  Right.

ABRAMS:  ... who had had contact with two people of supposedly Hawaiian descent because her ex-boyfriend apparently had two Hawaiian roommates and suggesting...

CANNY:  Right.

ABRAMS:  ... that maybe those are the people who actually abducted Laci Peterson.  I mean, that seems to me to be one of those arguments that‘s just going to hurt their credibility because it sounds so absurd. 

CANNY:  But I don‘t think that that‘s the argument that Mark‘s making.  I think that that may be the argument that media analysts are making.  What he‘s hammering home to that jury is just how poorly this case was investigated...

ABRAMS:  But this is not this case. 

JOHNSON:  Clearly the argument that Geragos is making, he‘s trying to connect up...

ABRAMS:  Yes.

JOHNSON:  ... this woman with the murder of Laci Peterson.  He says oh, so she met with two Pacific Islanders.  Well, Detective Brocchini, isn‘t it true that when you went to the house in Tracy, California, that you had already gotten a tip that there were Pacific Islanders involved in an abduction.  He‘s throwing out yet another red herring.  This is really going to hurt him in the long run. 

Paula is quite correct.  Geragos is doing a great job of attacking Detective Brocchini and pointing out how inept and incomplete this investigation is, but he needs to do the same thing that the prosecution needs to do...

ABRAMS:  Yes.

JOHNSON:  ... which is they need to stay focused on the goal. 

CANNY:  Yes, but the thing about this is I think that this is a short week.  I think because Monday being a court holiday, I think that they‘re going to break Thursday, Friday...

ABRAMS:  They don‘t have court...

CANNY:  ... so I think Geragos—yes, they never have court on Friday, but I think Geragos is going to keep this detective on the stand, so that the jury just remembers how just miserable he‘d done.  The other thing that‘s so interesting is that remember, now, we have these witnesses that the detective didn‘t interview or follow up on and Geragos did a great job getting in the fact that the woman who was an older woman, who recently died of a heart attack, who specifically said to Brocchini, I saw a woman walking a golden retriever on Christmas Eve at about 10:00 a.m., that she‘s actually died, but he got that evidence in before the jury, so the whole jury hears that this sweet old lady who just passed away unexpectedly would have come to testify about seeing a woman walking the dog. 

ABRAMS:  Yes.

CANNY:  The other thing that is pretty interesting and I‘m sure

Geragos will get do it, is what about the dog?  It‘s Mark—it‘s not Mark

·         it‘s Scott Peterson that has the dog.  I have a dog.  If somebody killed me, my dog isn‘t going to hang with that person. 

    

ABRAMS:  Oh, come on...

CANNY:  So McKenzie—I‘m serious...

ABRAMS:  Come on...

(CROSSTALK)

ABRAMS:  Come on...

(CROSSTALK)

ABRAMS:  I love these dog...

(CROSSTALK)

ABRAMS:  I love these dog psychologist arguments about what the ordinary...

CANNY:  I‘m not a dog psychologist...

ABRAMS:  ... dog would or wouldn‘t do.  I mean those things have always been to me so unpersuasive.  The same way in the Simpson case, they tried to base a lot it on, you know times the dog was barking, you know dog is barking ferociously, OK at least there is a legitimate argument you can make.  If someone‘s owner is being killed, the dog is going to go crazy, but the idea that they‘re going to get into the psychology of the dog to say that the person is going to become distant and this and that.  I mean you know it‘s not like it happened immediately.  Talking about—the allegation is that Peterson kills her in the morning and returns home in the afternoon and you‘re saying the dog would have still been holding a grudge? 

CANNY:  Oh absolutely.  I absolutely am saying the dog went with Scott. 

ABRAMS:  All right.  Dean, do you want a final word on the day‘s testimony? 

JOHNSON:  Yes, let‘s just remember about witnesses like Vivian Mitchell, she did pass away but Mark Geragos had the opportunity to put her on at the preliminary hearing, he decided not to do so. 

ABRAMS:  Yes, I‘ll tell you why. 

JOHNSON:  Now she‘s gone...

ABRAMS:  I‘ll tell you why...

(CROSSTALK)

ABRAMS:  Because she came—she and her husband came on my show a while back...

JOHNSON:  Yes.

ABRAMS:  ...and they had a lot of problems with the timing of their testimony...

JOHNSON:  Yes...

ABRAMS:  ...with regard to what they saw and what games were on TV, et cetera. 

JOHNSON:  And that‘s exactly the point.  Geragos said in his opening statement he was going to make this an eyewitness case.  He‘s not going to make this an eyewitness case.  The eyewitnesses that are around are ridiculous.  They‘re going to be thoroughly impeached and that‘s why she wasn‘t put on and he may have asked a question about Vivian Mitchell, but that‘s going to be long since forgotten by the time...

ABRAMS:  Yes.

JOHNSON:  ... we get to the end of this case. 

CANNY:  Oh...

(CROSSTALK)

CANNY:  ...all the jury...

ABRAMS:  I‘ve got to wrap it up.  I‘m sorry.  Paula Canny...

CANNY:  OK.

ABRAMS:  ...and Dean Johnson, thanks a lot for coming on the program.

CANNY:  Thank you.

JOHNSON:  Thanks Dan.

ABRAMS:  Coming up, late word that an American soldier may have been killed by terrorists in Iraq.  We‘re going to have the latest on that and the latest on that Marine now being held here—this is the picture—his captors say that they‘re going to behead him if they don‘t get what they want.

(COMMERCIAL BREAK)

ABRAMS:  According to an Arab language news network, a U.S. soldier taken prisoner in Iraq late last April may have been killed by his captors.  Officials at the Pentagon have seen a tape, which may show Specialist Keith Matthew Maupin being executed by gunmen.  Right now the Pentagon says they can‘t tell from anything specifically on the tape and that Maupin‘s status remains captured.

Another U.S. soldier, this time a Marine, is also missing on Sunday.  He turned up on video with a sword held over his head.  The latest American to be taken hostage in Iraq, Corporal Wassef Ali Hassoun.  The group holding him calls itself the Iraqi Reaction, says they‘ll behead Corporal Hassoun unless the U.S. releases all prisoners its holding in Iraq.

Hassoun‘s family is Lebanese.  Many of them now live in West Jordan, Utah where they are praying for his release.  He‘s not the only hostage being held in Iraq tonight.  Three Turkish workers have also been paraded on television, as has a Pakistani contractor.  All were apparently taken by different groups, though neither Pakistan nor Turkey have troops in Iraq. 

The U.S. says it‘s searching for Corporal Hassoun and the other hostages.  So far the military only confirmed that Hassoun has been missing since June 21, though his family says he is the man in the video.  I‘m joined now by Dana Priest, intelligence reporter for “The Washington Post”. 

Thanks very much for joining us.  Appreciate it.  All right, so why is the government reluctant to say that this is the person who has been kidnapped? 

DANA PRIEST, “THE WASHINGTON POST” REPORTER:  Well, a couple of things today.  That videotape that you referred to actually shows both Keith Maupin, they think, an image of a soldier they think is perhaps Keith Maupin at the beginning of the video that Al-Jazeera showed, actually Al-Jazeera did not show him being executed, but there is a soldier who is being executed. 

The camera is of his back head, and so you cannot see his face.  That‘s why they cannot positively identify him as that soldier, but other government officials say they are fairly certain that it is him.  Secondly, the group—and so the second half of the video showed the Marine corporal who we have seen on Al-Jazeera under threat of beheading.  The intelligence officials and others say that the group that‘s holding them, which they call the Islamic Resistance—Retribution, excuse me, is really a home-grown Iraqi gang, not necessarily connected at all to al Qaeda or even Zarqawi, but a homegrown Iraqi gang who is obviously very anti-American and is using classic terrorist tactics to terrorize countries and supporters. 

ABRAMS:  But why won‘t they say kidnapped, though?  They‘re just saying he‘s missing, and then you see this videotape, his family saying that‘s him.  Is there some concern about the circumstances surrounding how and when he went missing? 

PRIEST:  Well, a couple things.  We heard General Mark Kimmitt today say that he was perhaps on unauthorized leave. 

ABRAMS:  I should say captured.  I apologize for interrupting you.  I just made a mistake in the way I phrased that question.  He has now officially been described I‘m told in our most recent filed as captured, so I apologize...

PRIEST:  That‘s OK.  You know the point is the military is very conservative when they talk about prisoners of war or people who have been captured or kidnapped or gone missing or whatever.  Until they get 100 percent proof, given what the families are going through, given what this means to other soldiers and given what it means to the soldiers who are going to try to find out who conducted these operations, they are very inherently conservative.  That is why today when they found this second part of the video, and they cannot be 100 percent certain that it is Keith Maupin, even though they think it probably is, they are not going to go to that extreme yet. 

ABRAMS:  Do the officials that you speak to believe the account given by this terrorist group that basically they lured the corporal out and then kidnapped him? 

PRIEST:  You know, that again is something that they not only won‘t comment on, but they‘re not going to take the word of any terrorist group that kidnaps any of their people.  That‘s something that‘s yet to be seen.  You did get a hint that this was a little bit unusual circumstance when Brigadier General Mark Kimmitt, the spokesman over in Iraq, said that he was on an unauthorized absence, suggesting that he left somehow on his own.  He could have just been outside his unit‘s operating area in an unauthorized way when he was kidnapped.  So it‘s unclear though. 

ABRAMS:  Very quickly, intelligence is your beat.  How is the intelligence in Iraq in general?  I mean do U.S. officials have a pretty good sense on the whole of where these various terrorist groups work out of, who lives where, whose family lives where, et cetera? 

PRIEST:  No.  If they did, they wouldn‘t be there anymore.  As you saw from the strikes in the last several days, they are trying to zero in on Zarqawi.  He‘s the number one high value target right now, because they think that as far as they can tell in terms of organization of an insurgency, he‘s probably the main leader, but as the group that is taking responsible for these two other one Marine, one soldier, those are not connected to Zarqawi.  There are other players in this counterinsurgency—or in this insurgency that they don‘t totally understand and they don‘t know how vast their network extends into the Iraqi population.  That is why it‘s so hard for them to do anything about it. 

ABRAMS:  Dana Priest, thanks very much for taking the time. 

Appreciate it.

PRIEST:  Sure.

ABRAMS:  Coming up, the Michael Jackson case and why the judge has gone overboard with the secrecy.  It‘s my “Closing Argument”. 

And Ben Matlock was known as one of the best attorneys on television.  Who knew there was an intrepid reporter named Dan Abrams helping him to fight for justice while I was still in college.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why the judge in the Michael Jackson case is getting one aspect of the law very wrong.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—enough is enough with the precedented secrecy in the Michael Jackson case.  It is the typical overreaction you might see from a rookie judge.  I would have expected more from someone as respected and experienced as Judge Rodney Melville.  Not only has the judge sealed search warrants that are generally public and even most of the legal arguments and papers, he‘s sealed much of the indictment, even the name of alleged co-conspirators. 

We really don‘t know what Michael Jackson is accused of doing.  Surrounding covering, discussing and analyzing the case with accurate information, people will cover, discuss and analyze the case with leaks and maybe even some inaccurate information.  How does that help protect the defendant‘s right to a fair trial?  Whether the judge likes it or not, people will continue to discuss this case on the Internet and in the media.  I‘ve covered just about every high profile case in the past 10 years and every time in every case, the lawyers in the court have been able to find jurors who know very little about the evidence. 

Even in the O.J. Simpson civil case, after the criminal case, and all the attention it garnered, there were plenty of people who had not followed it closely.  That‘s what jury selection is for, to assess who has developed opinions about the case.  A federal appeals court in New York said it best in February. 

Quote—“The mere fact that the suit has been the subject of intense media coverage is not sufficient to justify closure.”  Not my words, theirs.  On Friday, Judge Melville had the temerity to scold the media attorney Theodore Boutrous, saying—quote—“You need to not mislead the public and press that I am doing something against the law.”

But that is exactly what the judge is doing, acting in violation of every Supreme Court decision on this issue.  Quote—“The First Amendment right of access cannot be overcome by the conclusionary assertion that publicity might deprive the defendant of the right to a fair trial.”

Another opinion—quote—“Pretrial publicity, even pervasive, adverse publicity does not inevitably lead to a unfair trial.  That‘s from Nebraska press.  That does not mean that everything has to be made public.  But as a legal matter, you have to do more than just say it‘s a high profile case and therefore, we want to change all the rules.  And yet, that‘s exactly what the judge has done. 

The defense wants everything sealed because it might make their client look bad.  The prosecution because they don‘t want to be accused of trying their case in the media or they‘re concerned about the quality of their case.  The judge is supposed to be looking out, not just for the defense or prosecution, but for the people of the state of California.  And in that regard, I think he‘s failed. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  A couple of weeks ago we received this message from Melody Steele from North Carolina.  “I wanted to send you a short message to express how much I enjoy your show.  I also wanted to relate to you that while watching a rerun of “Matlock” this week, I was amused that one of the characters featured was a reporter named Dan Abrams.  I could not help but notice that the actor was not nearly as insightful or attractive as you.”  Thank you Melody.

Now at first, I arrogantly assumed that someone was using my name to identify a legal reporter, stealing my identity.  But then we did a little research and I learned that it was I who was the Johnny come lately, or as was the case here, the Danny come lately.  In May, 1987, when I was still in college, there was an episode of “Matlock” with a reporter covering the courts with a familiar name. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Hey lieutenant. 

UNIDENTIFIED MALE:  Who are you? 

UNIDENTIFIED MALE:  Dan Abrams with “The Examiner”. 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE) later.

UNIDENTIFIED MALE:  Mr. Matlock, can I speak to you for a minute? 

UNIDENTIFIED MALE:  Sorry, I don‘t have a minute. 

UNIDENTIFIED MALE:  What about right now? 

UNIDENTIFIED MALE:  Right now I‘m on my way to the men‘s room. 

UNIDENTIFIED MALE:  This is very important.

UNIDENTIFIED MALE:  So is this.

UNIDENTIFIED MALE:  Mr. Matlock, everything they have on her is circumstantial.  You could drive a truck through their whole case. 

UNIDENTIFIED MALE:  Well, that may be true Mr.—what did you say your name is? 

UNIDENTIFIED MALE:  Abrams.  Dan Abrams.  Clearly there‘s been an injustice here. 

(END VIDEO CLIP)

ABRAMS:  Maybe they saw ahead that I would be fighting injustice, even after Ben Matlock was in reruns.  Thank you.  Melody, that was funny.  Thank you for pointing that out.  I appreciate it.

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

Coming up next, “HARDBALL” with Chris Matthews.  Filling in for Chris tonight is Andrea Mitchell. 

Thanks for watching.  And I will see you tomorrow. 

END

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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