updated 9/13/2004 10:41:56 AM ET 2004-09-13T14:41:56

Guests:  Beth Karas, Dean Johnson, Emmett Tyrrell, Lucy Dalglish, Jonathan Turley, Viet Dinh, Ron Grover

DAN ABRAMS, HOST:  Coming up, memos that have led to questions about President Bush‘s National Guard service may be fakes.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  CBS says the documents they aired are legitimate, but some experts say they appear to be forgeries produced by Microsoft Word software rather than a typewriter from the 70‘s. 

Plus, we look back at week 15 in the Scott Peterson case from inside the courtroom.  It included testimony from Peterson‘s father. 

And on the eve of the third anniversary of the 9/11 attacks, what exactly is the administration‘s record when it comes to capturing suspected terrorists at home?  They say changes in the law have meant big time arrests, but do the facts back that up? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, Scott Peterson‘s own father testifying against him this week.  This in a short but very busy week in the trial -- 25 witnesses on the stand.  The prosecution covering a lot of ground from DNA evidence to testimony from other women resembling Laci who were in the same park Scott says she was headed to Christmas Eve, 2002. 

MSNBC‘s Jennifer London has a wrap-up of week 15. 

(BEGIN VIDEOTAPE) 

UNIDENTIFIED MALE:  I can‘t talk guys.  I‘m sorry.

JENNIFER LONDON, MSNBC CORRESPONDENT (voice-over):  A tired looking Lee Peterson left the courthouse on Thursday after being called as a witness for the prosecution.  His first words on the stand “I‘m proud to say Scott is my son.”

The prosecution called the defendant‘s dad in an effort to advance their theory that Peterson bought his fishing boat in secret because he planned to use it to dispose of his wife‘s body.  Lee Peterson testified that Scott never told him he bought a boat, but legal experts say the prosecution‘s plan may have backfired. 

ROBERT TALBOT, LAW PROF., UNIVERSITY OF SAN FRANCISCO:  The other statement that Scott had bought another boat and never said anything about it, it took away everything the prosecution had gained.

LONDON:  In other testimony, the jury learned that the hair tangled in the pliers found on Peterson‘s boat was consistent with Laci‘s hair.  The prosecution says that places her on the boat that Peterson took to the Berkley marina the day she vanished.  And the jury heard from a number of witnesses who say they were out walking their dog near the Peterson home that same day. 

Some of the witnesses were pregnant at the time.  Some even looked like Laci.  The prosecution wants to downplay the defense‘s claim that eyewitnesses saw Laci walking her dog on Christmas Eve. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Now the prosecution is in a position to take all those eyewitnesses, say to the jury, yes, you know, all of these people saw a woman a pregnant woman, or a woman or somebody walking a dog, but whatever they saw, it wasn‘t Laci Peterson. 

LONDON (on camera):  When testimony resumes on Monday, we are expecting to hear more about how investigators used GPS tracking devices to follow Scott Peterson in the days and weeks after Laci disappeared.  This while search teams were still looking for her. 

In Redwood City, California, Jennifer London, MSNBC. 

(END VIDEOTAPE)

ABRAMS:  Thanks Jennifer. 

“My Take”—I‘ve said this before—the prosecution continuing on the defensive this week, trying to preempt, you know a lot of it.  They‘re just trying to avoid potential pitfalls, arguing things the defense may argue. 

Let‘s bring in our team who has been in the courtroom all week.  Edie Lambert from NBC affiliate KCRA, Court TV correspondent and former prosecutor Beth Karas and former San Mateo County prosecutor Dean Johnson. 

Beth, give us a sense inside the courtroom at the courthouse there.  I mean we talk about it from a distance.  I come there—sometimes I come home.  Are the people there saying that these prosecutors are simply not doing what they need to do to get a conviction in this case? 

BETH KARAS, COURT TV CORRESPONDENT:  You know there‘s a real division among the people who are observing the trial from inside the courtroom—legal analysts, members of the media, members of the public, there is a real true division.  For example, the lineup of witnesses over the past few days who walked in the park, were pregnant, had a dog, the men and women, people are saying should have been left for a rebuttal case.  Not so. 

It is responsive to issues raised by Mark Geragos, the defense attorney, on cross-examination of Detective Al Brocchini and if the prosecution didn‘t put this stuff in there now to respond to it, they may have been precluded later.  Sure, Geragos may bring up witnesses who claim to have sighted Laci after Scott went fishing, but he may choose not to if they hadn‘t put the stuff in now. 

If he never raised in it his case, they couldn‘t have rebutted it, so they had to put the stuff on now otherwise Judge Delucchi would have said you had your chance and I‘m not going to let you put it on in rebuttal.  So, you know I think that it was...

ABRAMS:  So wait Beth, just so we understand this clearly, you‘re saying that if the prosecutors hadn‘t put on any of these witnesses now, these other people, and the defense—you are saying if the defense didn‘t mention it, you mean, meaning if they didn‘t present it as part of their case...

KARAS:  Right.

ABRAMS:  ... they wouldn‘t be able to do it.  Right.

KARAS:  Right and there was no guarantee Geragos would have.  He could have as a strategic measure said I‘m not going to put their witnesses on.  I‘ve got plenty to argue now with the cross-examination of Al Brocchini...

ABRAMS:  Yes.

KARAS:  ... they would have lost their shot.  They couldn‘t have rebutted it.  It would have been precluded. 

ABRAMS:  Dean—they don‘t call you Dean for nothing.  You‘re sort of the dean of the legal analysts out there.  Dean, what do you make of that?  I mean bottom line what are people saying looking back now 15 weeks into this trial about how things are going? 

JOHNSON:  Well you know I hate to disagree with Beth, but I think this is a mistake that the prosecution is making.  You get a rebuttal case as a prosecutor for a reason, to answer what the defense does raise.  Right now the prosecution is trying to answer every possible argument that the defense could raise. 

Their stories, the prosecution‘s story is getting lost in this.  I think much better strategy to wait and see what the defense actually raises, what salient points do they make.  Then you can come back in rebuttal and knock down those points. 

ABRAMS:  Yes.

JOHNSON:  I think they are making a strategic error here.

ABRAMS:  When I sit in the courtroom, I often sit next to Edie Lambert and she always seems to be able to observe things in the jury.  She says to me, did you see that juror, did you see that one say, looking this way and that way?  And I‘m always looking too late, and I‘m like where, she said oh, you missed it.  So Edie, what are the jurors—I mean what are we getting in terms of a sense from these jurors 15 week in?

EDIE LAMBERT, KCRA CORRESPONDENT:  I had a little bit of a hard time reading the jury this week and I think in part because we saw such a scramble of witnesses and so many different kinds of things.  I did see them taking very careful notes through a lot of the testimony.  And I did see them really, I felt, locking in with Lee Peterson, Scott Peterson‘s father. 

An unusual situation, as you notice, a father called by the prosecution to testify against his own son.  I was I think maybe looking for some emotion with the jurors.  Didn‘t necessarily see that, but I did see them paying very careful attention.  Not necessarily taking notes, but just watching carefully. 

ABRAMS:  You know, Beth, if you look back at this case so far, if Scott Peterson is innocent, he did everything wrong.  Everything he could have done, every—it seems almost every choice he made, maybe except for talking to Amber Frey more, he made wrong. 

One of them—the idea that he‘s trying to sell his house.  He talks to one person about possibly selling it with the furniture in it.  This is Terri Western, the longtime friend of the family, real estate agent.  Terri Western talks about a conversation she had with Peterson.  Rick Distaso says what happened?  Scott was there that morning visibly upset, sat there next to him while I was going through e-mails.  I said Scott are you OK and he said no.  I need to talk to you about selling the house.  I can‘t have Laci come back here. 

What did you respond?

Well I said Scott I understand.  However, now is not the time or place to discuss this.

Did he mention selling the house to you again?

Terri Western says no, he did not.

And you know, so Beth, so the people who believe in Scott Peterson say so what, he didn‘t want Laci to come back to that house.  It just seems that at the very least he made a lot of absolutely horrible choices. 

KARAS:  Well, you know, that‘s what the prosecution will argue.  Sure, when you look at individual pieces of evidence here, there can be an innocent interpretation or an interpretation consistent with his being not guilty.  However, when you look at all of this together, it‘s pretty powerful circumstantial evidence.  Whether or not it will convince a jury, and 12 of them, that he‘s guilty remains to be seen. 

(CROSSTALK)

KARAS:  But I do think it‘ll—it‘s the prosecution summation that will be critical...

ABRAMS:  And that‘s the problem, is that people keep saying, you know, what does this prove and what does that prove and the response has to be, you got five minutes?  Let me go through everything that they have and then let‘s discuss it. 

Beth Karas, Edie Lambert, Dean Johnson stick around.  Got more on the Scott Peterson case coming up in a minute. 

Plus a look at America‘s legal war on terror—the Justice Department says it‘s stopped hundred of terrorist suspects since 9/11.  We ask, is that true? 

And we‘ll tell you why Disney CEO Michael Eisner has decided to retire after two decades at the helm and some of it involves a lot of lawsuits (UNINTELLIGIBLE). 

Your e-mails, send them to abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  A big week in the Scott Peterson case and the prosecutors say they only have a couple of weeks left.  More on the Scott Peterson case coming up in a moment. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SCOTT PETERSON, ON TRIAL FOR MURDER:  Entirely too much speculation.  We need to talk about the facts.  And what we know is that I left here at right around 9:30 that morning.  Laci was still in the home.  The dog was returned to the yard by a neighbor with its leash on at 10:30.  Those are the only things we really know.

(END VIDEO CLIP)

ABRAMS:  Well, we‘ve learned a lot more since Scott Peterson did that interview. 

Edie Lambert, the prosecution has got what, like two weeks left, that‘s it the case is wrapping up.  And do we have any sense of how long the defense is going to go? 

LAMBERT:  Yes, the judge made it clear to the jury that the prosecution expects to wrap up by the end of September.  Then the defense plans to go two to three weeks and then we don‘t know, of course, how long the prosecutor will go for their rebuttal case.  But it looks like we could have perhaps this case going to the jury the end of October or beginning of November. 

ABRAMS:  Dean, you had said to me early on, I think we had agreed on this, that one of the most important witnesses is going to be someone who is an expert on tidal currents.  Are we still expecting that witness to testify, and why don‘t you tell us why that‘s so important? 

JOHNSON:  We absolutely expect that witness to testify.  What we expect the prosecution‘s hydrologist or tide expert will say is that he believes based on the flow of the tides and the currents in San Francisco Bay, he can look at where Laci and Conner‘s bodies were found.  He can trace the flow of the tides backwards and he will say that the only place that‘s consistent with the location of those two bodies if they were put in at the same time is Brook‘s Landing. 

In other words, those bodies were dumped in the bay at the precise spot where Scott Peterson went fishing on December the 24th.  I think that‘s going to be a very powerful piece of evidence.  It‘s what this jury is looking for.  They don‘t like Scott Peterson for what he did to Amber Frey and for selling the house and the car or trying to or trying to sell Conner‘s furniture.  They want to convict him of something. 

And they certainly want to convict whoever killed that beautiful young woman and her unborn child.  What they need is some sort of intellectual hook, some piece of solid evidence to connect the two up and to say that Scott Peterson and the person who killed those two people are one and the same.  If they get that...

ABRAMS:  Yes.

JOHNSON:  ... from the prosecution, we could be looking...

ABRAMS:  And that‘s a—and people always say—I‘ve said this before—people always say oh, there‘s no physical evidence.  That‘s a huge piece of physical evidence... 

JOHNSON:  That is a gigantic piece of physical evidence. 

ABRAMS:  ... in this case.  I mean again, if they can link that, where the bodies are found, look at the tidal currents and say the bodies were dumped in exactly the place where Scott Peterson went fishing, well the people who framed him would have had to have known that, too. 

JOHNSON:  Exactly. 

ABRAMS:  All right.  Back to the defense case.  Two to three weeks, I‘m guessing that they‘re going to focus quite a bit on the scientific evidence, the autopsy to try and demonstrate that a piece of plastic tape wrapped around the baby‘s neck could only have gotten there, the defense will argue, based on someone putting it there as opposed to accidentally getting it wrapped around the neck. 

KARAS:  Is that a question for me, Dan? 

ABRAMS:  Yes, Beth.

KARAS:  Oh, I‘m sorry.  You know they will do that, but they‘re going to call a forensic anthropologist to talk about the gestational age of the baby.  The problem for the defense is the condition of the uterus, Laci Peterson‘s uterus, because that is consistent with the baby having come out of her not through any sort of cutting and it was not a vaginal birth.  Her cervix was intact. 

So they have to show, I think, the only believable way is for them to show that she had been abducted and was kept alive for a period of time.  The medical examiner is expected to say the condition of her body was consistent with her being in the water three to six months.  So, if they can show that she was kept alive for a couple two or three weeks, that‘s still within the time period of her—the condition of her body three to six months in the water.  But there is no way that this baby was born alive.  That is not credible. 

ABRAMS:  Yes, taken for the purpose of keeping the baby and they dump the baby two days later?  I don‘t know.  It‘s one of those arguments that may not make a lot of sense, but again, that‘s why we always say reasonable doubt, reasonable doubt, reasonable doubt. 

Edie Lambert, Beth Karas, and Dean Johnson, thanks a lot. 

JOHNSON:  Thanks, Dan. 

ABRAMS:  Coming up, memos that have led to questions about President Bush‘s National Guard service may be fakes.

Michael Eisner brought huge success to Disney in the 80‘s and 90‘s, now he‘s leaving the company—the company facing several major lawsuits.  Has Disney become a prime legal target? 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  CBS News on the hot seat after “60 Minutes” reported this week about newly discovered documents relating to President Bush‘s Air National Guard service in the early 70‘s.  CBS reported that memos from a personal file maintained by the president‘s former squadron commander, Lieutenant Colonel Jerry Killian, the then first lieutenant show that the then First Lieutenant Bush‘s performance—no sorry—show that then First Lieutenant Bush‘s performance as an officer was not up to par. 

That he disobeyed a direct order to get a physical in 1972 and that he used family connections to try to cover up any investigation into his misdeeds.  But today some experts doubt the authenticity of the records.  Remember, Killian died in 1984.  Now, his son says he doubts his father would have written an unsigned memo saying he was being pressured to sugar coat Bush‘s performance review.  The personnel chief of Killian‘s unit who reportedly knew the colonel for 17 years says they look like forgeries.

And some expert document examiners believe the memos may have been created by computer software, not a typewriter, which would have been used in all likelihood back then.  Some point to the superscript in document likes this one to prove the point.  The use of this superscript was very rare in the 1970‘s. 

But the network is standing behind its report and the documents saying with absolute certainty that some typewriters, they say, were able to produce that superscript as early as 1968.  That handwriting and forensic document experts verified the memos were authentic.  That supporting documents—quote—“were provide by an unimpeachable source, and people who work closely with Colonel Killian support the writing in the documents.” 

“My Take”—CBS in a tough position.  The Bush team, of course, wants to do anything they can to prove the documents are fake, even though their position was that it‘s just a recycled story.  And other media operations will be happy to embarrass rival CBS because they got a—quote—

“scoop”.  Minimizing rival scoops is part of the business.

Whatever we think about Dan Rather as an anchor or about his politics, this is a man who takes issues like authenticity as seriously as anyone.  If it‘s a fake, this case will serve as one of those teaching tools for journalists everywhere. 

Join me now to debate is executive director of the Reporters Committee for Human Freedom of the Press, Lucy Dalglish, who supports CBS and their dilemma and founder and editor-in-chief of “The American Spectator”, R.  Emmett Tyrrell, who I‘m going to call Bob.

All right, Bob, let me start with you.  You know, am I wrong on this? 

I mean do you think that I‘m giving CBS too much of a break on this? 

EMMETT TYRRELL, “THE AMERICAN SPECTATOR”:  Well, Dan, as you know, one of the reasons you have me on and I came down here rather hurriedly is that we had a report today in “The American Spectator” online that found still more wrong with CBS‘ report.  These documents originally fell into the hands of the DNC and the Kerry campaign and they were considered dubious by the Kerry campaign and by the Democratic National Committee. 

And there are people at CBS, according to our story, which is pretty well sourced, that wouldn‘t have gone with the story.  So along with the problems you cited, there‘s several more problems.  I think they rushed this story before it was well documented.  And I think if they try to document it any better, they‘d have killed it if they had any sense. 

ABRAMS:  All right, let me read you CBS News‘ response.  Quote—

“Each of the documents broadcast on “60 Minutes” was thoroughly vetted by independent experts and we are convinced of their authenticity.” 

Lucy, some very strong language from CBS.  I mean they‘re not saying look, we‘re going to continue to investigate.  I mean what media operations sometimes say is we will investigate.  If we got it wrong, we‘ll issue an apology.  They are just coming out, Dan Rather, you know putting out the message that they‘re convinced of the authenticity. 

LUCY DALGLISH, REPORTERS CMTE. FOR FREEDOM OF THE PRESS:  Yes, they are, which leads me to believe that they put considerable amount of work into this.  That it was seriously vetted by lawyers before it went on the air and that they had a lot of their best people.  Now, are they saying that—you know, can we say with 100 percent certainty that these are not forgeries?  No, I mean I wouldn‘t say that...

ABRAMS:  Well you hope that CBS—let‘s talk journalistic ethics here for a moment.  You hope that CBS would be able to say that before they put it on the air, right? 

DALGLISH:  Well, yes—well no,, I mean, you never know. 

ABRAMS:  Well come on Lucy. 

DALGLISH:  One hundred percent...

ABRAMS:  What do you mean you never know?  If the answer is...

DALGLISH:  With 100 percent certainty that something is not a forgery?  No, but you do what you can.  I have been thinking about this all day.  If I were the editor and somebody came to me with these documents and said, you know, we have to check this out, and I had several weeks to do it, I hired forensic typography people and I hired, you know—and I talked to people who had worked with Colonel Killian and you do absolutely everything you can until you reach a point where you‘re convinced well beyond, you know, all reason but not 100 percent.  And I think if I would have been in the shoes of the folks at CBS and did what they appear to have done, I probably would have gone with the story as well. 

ABRAMS:  Bob.

TYRRELL:  Well, I think that you‘re asking us to do what debaters say, argue from authority.  They‘re—CBS is arguing from its higher authority.  Trust us.  They‘re not addressing the facts.  They‘re not addressing the problems that we‘ve all brought forward with this story.  They ought to address those facts.  And frankly, they ought to be accountable and recognize that they screwed up and admit it and move on. 

ABRAMS:  Lucy, is this one of those cases where they should think about going back to their source and saying, look, you know we need to be able to convince the public on this one. 

DALGLISH:  Well, sure. 

ABRAMS:  We‘d like to be able to say that you were the source of this

·         because they are not saying who the source is. 

DALGLISH:  Well, I‘m sure they are having conversations like that.  I mean you know CBS has no incentive here to blow this story.  They have—they took a risk in running the story, and they have no incentive to get it wrong.  If this is wrong information, my guess is they‘re, you know, they are going back and revisiting the information that they have and they probably are trying...

ABRAMS:  Wait.  But their incentive now is to make sure it‘s not wrong.  I mean they have an incentive now that it better be right. 

DALGLISH:  Yes, but in the long run if it is found out that it‘s wrong, they‘ve lost some credibility.  And when you‘re a journalist, as you know, Dan, really all you have is your credibility. 

ABRAMS:  Bob, very quickly, do you think we‘re ever going to get a definitive answer?  I mean is there going to be a definitive right or wrong in the end on this issue?

TYRRELL:  I think we‘re pretty close to one already.  I think the evidence of that typewriter or word processor is pretty good.  The contradictions are all pretty sound.  I don‘t know that anyone ever has an incentive, Lucy, to get something wrong. 

ABRAMS:  Yes.  All right.  R. Emmett Tyrrell, Lucy Dalglish, thanks a lot.  Appreciate it. 

Coming up, Attorney General John Ashcroft counts the efforts in catching terrorists inside the U.S., but the records show that many terror investigations have gone belly up.  We‘ll debate the Justice Department‘s record since 9/11, 2001. 

And one of the world‘s most successful media powerhouses on the outside, but on the inside lots of problems and now its chief executive planning to resign.  Disney not just facing financial trouble, but also facing several multimillion-dollar lawsuits.

Your e-mails, abramsreport@msnbc.com.  I read them and respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, on the eve of the third anniversary of the 9/11 attacks, what exactly is the administration‘s record when it comes to capturing or stopping suspected terrorists at home?  They say changing the law meant big time arrests, but do the facts back it up?  First the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

JOHN ASHCROFT, ATTORNEY GENERAL:  We have neutralized allege terror cells in Buffalo, Detroit, Seattle, and Portland.  To date we have brought 255 criminal charges, 132 individuals have been convicted or have pled guilty. 

(END VIDEO CLIP)

ABRAMS:  Attorney General John Ashcroft at a news conference in November praising the performance of his Justice Department and the war on terror.  As of this week, the attorney general has raised those figures to 357 charged, 189 convictions.  While rooting out alleged terrorists, fundraisers and sleeper cells has been law enforcement‘s top priority since 9/11.  Not everyone sort of thinks those numbers are entirely accurate. 

And the Justice Department has also suffered significant losses in some of its most important terror cases.  First the numbers—Syracuse University study released last December analyzed the Justice Department data and found more than 6,400 alleged terror-related arrests, 879 convictions, and 373 prison sentences with 23 sentences at five years or more, and only five of 20 years or more. 

And when it comes to cases where there have been successes like truck driver Iyman Faris who pled guilty to taking part in an al Qaeda conspiracy to destroy the Brooklyn Bridge and James Jama (ph) guilty of conspiring to provide support to the Taliban, but then there‘s also like the “Detroit Three” (ph), the Justice Department actually asked the judge to throw out their convictions, admitting misconduct by a prosecutor. 

And there‘s Yaser Hamdi, an American citizen and alleged enemy combatant picked up in Afghanistan, sent to Guantanamo.  The Justice Department negotiating now with Hamdi‘s lawyers reportedly on terms for his release.  Remember, this guy was the second American Taliban?  After the U.S. Supreme court ruled that Hamdi couldn‘t be held as an enemy combatant and denied all legal rights. 

“My Take”—I‘m not going to say the Justice Department has somehow failed in its efforts to thwart terrorism since 9/11.  I think efforts to focus on prevention rather than prosecution make great sense, but let‘s talk straight here.  There really haven‘t been a lot of major successes.  And there have been a lot of cases built up as huge arrests only to discover later they were small fish at best. 

It seems the record on this issue could be fairly described I think as mediocre.  I‘m not talking about civil liberties.  I‘m talking strictly successes in the war on terror. 

Let‘s talk to our guest, Jonathan Turley, law professor at George Washington University, has published numerous articles critical of Attorney General Ashcroft on the war on terror.  And Viet Dinh, on the other end of town, a professor of constitutional law at Georgetown University and a former assistant attorney general for the Office of Legal Policy at the Justice Department. 

Professor Turley, let me start with you.  Make the case. 

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY:  Well I mean the case is not very good.  I mean John Ashcroft has held numerous press conferences where he has touted what he considers to be a success story.  But when you look closely at those numbers, there is a lot of evidence that he‘s cooking the books. 

I mean for example, there is a certain body count culture that‘s taken a hold of the Justice Department where they are putting pressure on prosecutors to bring their numbers up.  And when you look at those cases, you find that they‘re not what they seem.  For example, one year they counted 65 terrorism cases in New York that turned out to be just routine immigration problems that even the Department of Justice had to admit were not terrorist prosecutions and had to be withdrawn from the list. 

ABRAMS:  And let me just—the DOJ defines antiterrorism, immigration offenses, identity theft, some drug cases, but I guess, Professor Dinh, the argument goes that this is part of prevention? 

VIET DINH, GEORGETOWN LAW PROFESSOR:  Yes, you all are missing the point.  The point here is that we will not wait for the terrorists to strike.  We will not wait to land the really, really big prosecution.  But we will use every single tool at our disposal—at the Department of Justice‘s disposal in order to incapacitate those with evil intent from doing harm to our citizenry. 

The fact that there have been more arrests, but fewer convictions in the five to 20-year range only proves that the strategy is working, whereby we are removing from the streets the people who would do our country and our citizens harm rather than criticizing the numbers for not having more bang up arrests and more aggressive sentences...

ABRAMS:  But how do we know that, Professor Dinh...

(CROSSTALK)

ABRAMS:  But how do we know that?  I mean it‘s basically—I‘m willing to put the numbers aside.  I think that in essence both sides of this debate in a way would be happy to sort of dismiss the numbers.  But how do we know that there have been successes and major success?  I mean it is Attorney General Ashcroft who has been setting the bar, has he not, by going out and publicly talking about the successes. 

DINH:  I think the best statistic here, Dan, is a non-statistic.  Three years have passed without another single American life loss to terrorism on American soil.  Each and every single day that nothing happens in America is a momentous achievement for law enforcement and intelligence officials.  And so, in the game of counter terrorism, success is very elusive to measure.  We can only measure by lives saved, while failure is very catastrophic to measure. 

TURLEY:  You know I find that an absolutely extraordinary statement. 

I mean the idea that you should justify...

DINH:  Yes...

TURLEY:  ... if I could finish.  If you—the idea that our measures are justified because there hasn‘t been another 9/11 is facially ridiculous.  That‘s the type of clarion call that every repressive regime has used on their citizens. That you know if we didn‘t do these things to you, we would have had another attack.  And the idea that...

DINH:  Wait a minute...

(CROSSTALK)

TURLEY:  If I could finish...

(CROSSTALK)

TURLEY:  Dan, if I could just finish...

(CROSSTALK)

ABRAMS:  Hang on one sec. 

(CROSSTALK)

ABRAMS:  Hang on one sec.  Let me let Professor Turley finish a thought.  Professor Dinh, I promise to give you full time to respond to both points.  Go ahead.

TURLEY:  And to say that you know we are deterring with all of these arrests is also misses the point.  I think that John Ashcroft really has deterred people.  He‘s scared a lot of people and most of them are average citizens. 

ABRAMS:  All right. 

TURLEY:  I mean the fact is...

ABRAMS:  Let me let Professor Dinh respond now. 

(CROSSTALK)

ABRAMS:  Professor Dinh, go ahead. 

DINH:  I think what is ridiculous is the mischaracterization of my point.  Jonathan says that we are justifying repression in order to justify a non-statistic.  I did no such thing.  I say that the success in the war against terror is elusive to measure and the best measurement of it is that not another American life has been lost on American soil despite the evasive and pervasive threat of terror around the world. 

Nobody can deny the truth of that fact.  There is nothing ridiculous about the fact that hundreds of thousands of men and women in law enforcement and intelligence are working every single day so that Jonathan can pick up his kids in safety and millions of moms around the country can do the same. 

ABRAMS:  All right, Jonathan, go ahead.  You want to respond.

TURLEY:  Well first of all, no one would say that they were safe with my kids, but putting aside that fact, you know, what we have here is the typical justification that we‘ve seen over the years, that we‘re tough because we need to prevent these things.  When you look at the details, Attorney General John Ashcroft has been a disgrace. 

The Supreme Court just said that he did not have the authority—that the United States government did not have the authority to hold two American citizens and bar access to lawyers and access to courts as a chorus of experts on the right or left has said for years.  John Ashcroft and the people that have worked for him have openly and flagrantly violated the United States Constitution and international law and have always justified it by saying that if you don‘t let us do this, you are under threat of being killed.  And if people accept that argument, they‘re accepting an argument that is as old as the hills.

ABRAMS:  Professor Dinh, let me read you...

DINH:  You know what?  That is not—that is—you don‘t have to accept that argument because the only person making that argument is Jonathan Turley.  Recall, Jonathan is purposely completing two different issues here.  The Supreme Court rightly in my mind denied the president the authority to hold enemy combatants without any legal process.  That has absolutely nothing to do with the prosecution‘s war against terror, with what the Department of Justice is doing in order to arrest people and incapacitate them by using the ordinary tools of criminal justice.  There is no legal, moral, or constitutional right to violate the laws of this country...

ABRAMS:  Let me...

DINH:  ... whether you are a terrorist or a criminal. 

ABRAMS:  Let me read from Mark Corrallo, a Justice Department spokesperson, said the fact that many terrorism investigations result in less serious charges does not mean the case is not terrorism related.  Often there is no clear line between terrorism and criminal activity such as money laundering, identity theft.  These are fraud or immigration violations. 

I mean Jonathan, you‘re not saying that—you would have to agree, right, that there are going to be cases when the government may have to go after people for lesser charges because they have a sense that these are people who are up to no good, possibly helping terrorists, but they‘re only going to be able to get them on lesser charges.  That happens all the time. 

TURLEY:  That‘s absolutely right.  But when you look at the types of cases that this administration has brought, they are laughable.  You know, they brought a case against Greenpeace and charged them under an ancient law of sailor mongering.  They countered that for (UNINTELLIGIBLE) national security case.  They tried to hold the entire organization criminally liable until a judge threw it out. 

They went after an Internet person in Idaho and that was rejected as well and leading intelligence experts criticized that prosecution.  What we‘ve seen is that this attorney general has encouraged what Viet Dinh puts a nice spin on it, says we‘ll use every tool we can.  In fact, it has been an encouragement of prosecutorial abuse as we have seen in Detroit...

ABRAMS:  All right...

TURLEY:  ... where one of their few major successes was thrown out.

ABRAMS:  Professor Dinh, final 30 seconds. 

DINH:  I think that the case in Detroit, Jonathan points out is perfectly on point.  We will not tolerate abuse of process.  We will not tolerate any infringement of constitutional right.  What that rogue prosecutor did was not only deny fair trial to defendant, it also offended every single principle that the Department of Justice stands for.  That is we will protect freedom by protecting freedom through law and not in spite of it. 

ABRAMS:  And I—you know I have to say that—you know, well I made my comment at the beginning, I would have expected that there would have been something to happen in the three years since 9/11, but who knows what that means. 

Professor Turley, Professor Dinh, thank you both very much. 

Appreciate it. 

TURLEY:  Thank you.

ABRAMS:  Get smart today.  Smart people on the show, you get smart people. 

Disney World has been battered by two hurricanes in the last month.  With another on the way, now Disney‘s CEO says he‘s stepping down.  We know there are business troubles, but the company has legal trouble as well.  Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  Disney, it‘s a name we all grew up with.  Disney theme parks are supposed to be happiest places on earth.  But at the heart of the company that gave us the mouse, things apparently aren‘t so happy.  Today CEO and former chairman of Disney, Michael Eisner, announced he‘s stepping down in 2006.  Remember, he survived a shareholder revolt led by someone who has a major stake in Disney, Walt Disney‘s nephew Roy Disney last March.  And Eisner is leaving a company with problems across its properties. 

Remember, Disney owns the ABC Network, which at one time had a powerhouse primetime lineup.  Now it‘s number four.  Disney studios are also facing problems.  Each of Disney‘s three summer blockbusters, “The Alamo,” “King Arthur” and “Around the World in 80 Days” bombed.  Disney World in Florida was hit hard by Hurricanes Charley and Frances.  It‘s now bracing for Ivan expected to slam into the park early next week.  Last year Euro Disney announced it couldn‘t meet its debt repayments.  It‘s now pushed back the deadline to restructure the park‘s $2.41 billion debt—

$241 debt. 

And then there is the “Lion King,” a huge moneymaker, but fraught with problems.  And that brings up Disney‘s other big dilemma—lawsuits.  South Africa, the family of the man who originally wrote the song “The Lion Sleeps Tonight” has filed a lawsuit against Disney claiming it lost millions in royalties and Disney was forced to pay former executive Jeffrey Katzenberg hundreds of millions of dollars to settle a breach of contract suit.

It‘s also preparing to go to court over a suit filed by its shareholders against Eisner and the company‘s board.  Over $140 million severance package paid to former Disney President Michael Ovitz. 

(UNINTELLIGIBLE) lot of problems.  For more on the legal and other woes facing Michael Eisner and Disney and why it‘s such a prime target for lawsuits, I‘m joined now by “BusinessWeek‘s” Los Angeles bureau manager, Ron Grover, who‘s covered the problems at Disney for years. 

Mr. Grover, thank you very much. 

RON GROVER, “BUSINESSWEEK” MAGAZINE:  Well thank you for having me. 

ABRAMS:  All right.  So, bottom line, how big a deal are the lawsuits in terms of Disney‘s problems? 

GROVER:  Well, Disney is a $30-billion company, so any one of those lawsuits by itself is not a big deal, but as you know, as these lawsuits accumulate, little by a little, it‘s like rainfall on the windowsill.  It starts to build up and so, they can‘t afford to lose all the ones you just mentioned, I don‘t think. 

ABRAMS:  What are the shareholders now suing for?  I mean is this just this one lawsuit over Michael Ovitz getting $140 million or are there other shareholder lawsuits? 

GROVER:  Well that‘s the primary one.  Several lawsuits have been assembled into one, and it‘s in Delaware and it has to do with that lawsuit.  And more than that it has to do with the fact that Michael Ovitz, they say, was hired, given a ton of money, not really given the authority to be the president of the company.  And it was all kind of a sham.

It was kind of a friendly deal between Michael Eisner and his friend Michael Ovitz.  Of course, Disney has rejected all that and has released a whole bunch of memos showing that Eisner took over to task many times for his inability to do a job.  So it‘s really about was he paid a ton of money and then not really given a job to do? 

ABRAMS:  Do the Disney theme parks lose money, the ones here in the

U.S.? 

GROVER:  No, they don‘t lose money.  They don‘t make as much money as they used to and they‘ve had to resort to all kinds of promotional tricks in order to keep their attendance up.  They make money, but analysts don‘t just look for them just to make money.  They look for them to make a certain amount of money and they really haven‘t been doing that of late. 

ABRAMS:  Bottom line, why is Eisner leaving? 

GROVER:  Bottom line, he‘s leaving I think because he‘s tired of the grief.  He‘s had 10 years of nothing but shareholders yelling at him.  The last year and a half have been brutal.  He does not want to go out like this.  He wants to go out as—on his own terms.  I‘m going to resign.  I‘m going to retire.  I‘m going to go out as a guy, as he put in his letter today, that‘s had 20 years of accomplishment.  I don‘t think he wants to go out on the end of a stick like some other chairmen have gone out. 

ABRAMS:  Ron Grover, “BusinessWeek” magazine, thanks a lot. 

Appreciate it.

GROVER:  Thank you. 

ABRAMS:  Coming up, for all those who said Martha Stewart should have taken the stand in her trial, this man is living proof that she probably made the right call.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a living example of why Martha Stewart made the right decision not to testify at her trial.  It‘s my “Closing Argument”.  

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—to all the second-guessers who were saying that maybe Martha Stewart should have taken the witness stand, that maybe she wouldn‘t have been convicted if the jurors had heard from Martha herself.  I present to you exhibit “A”—Frank Quattrone, a Wall Street banker convicted like Martha of obstructing justice.  His first case ended in a hung jury.  This time he was convicted for essentially endorsing a colleague‘s e-mail that urged employees to—quote—“clean up files after an investigation had already started.” 

The Bureau of Prisons had recommended the same sentence as Martha—

10 months.  That would mean five in prison, five home detention or supervised release.  Unlike Martha, Quattrone took the stand in his own defense.  And for that reason, because the judge believed that he lied, perjured herself when Quattrone said he did not intend to obstruct the investigation, he got more time -- 18 months.  No half at home. 

He‘ll have to serve at least 85 percent.  And you could argue he was even less culpable than Martha.  She repeatedly lied to investigators.  Quattrone just endorsed an e-mail sent by someone else.  Now he‘ll appeal the conviction and sentence, but I just hope all those—quote—

“experts” who were saying that Martha‘s defense team to blame are now eating their words, at least thinking twice it would not have helped Martha and might have landed her an extra year in the big house. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Before I get to your comments on the various stories we covered yesterday, I just want to tell you how touched I am by the thousands of messages I received from all of you after I spoke publicly yesterday about having had testicular cancer.  I read each and every one of the notes.  I was humbled.  I was flattered. 

I was moved. 

But the reason, again, that I went public was to try to help make young men aware of the disease and get them to examine themselves.  Sean Kimerling Testicular Cancer Foundation is helping with that.  Remember, it‘s Sean‘s story that touched me so deeply and led me to go public. 

So, again, if you want to help you can log on to their Web site at www.seankimerling—one “M” -- .org.  you can also e-mail them at info@seankimerling.org or call 212-986-0892 Extension 5.  They‘re having a big golf fundraising event and dinner on September 14.  Apparently, they‘ve still got tickets available.  Info is on the Web site.

All right.  Now to Scott Peterson and his father Lee Peterson on the stand yesterday.  He admitted that when Scott called him at 2:15 p.m., presumably when he was returning from the marina, where Laci‘s body was later found, Scott said nothing about the marina or taking his new boat out for a spin.  Some say that‘s incriminating.  Many of you do not including Lee D. in Sierra Vista, Arizona.

“Kids don‘t say hey dad, I bought a boat after dad has loaned them money.  They just don‘t do it.”

Dennis Cohen, “If I bought a boat and had gone fishing, I probably wouldn‘t tell my father either, as he‘d be on me for foolishly spending the money.  What‘s the big deal with hiding something from your parents?”

Look, if it was only piece of evidence in this case, you would be right, but it‘s not.  It‘s one of a piece in the puzzle. 

Jackie Otto from Rochester, Minnesota finds the story fishy.  “What I find interesting is that Lee Peterson who claims to not be an avid fisherman knew that they were fishing for trout in July or August of 2002.  Scott, who they all say is an avid fisherman, didn‘t know what he was fishing for on December 24, 2002.”

From San Francisco, Jim Greene asks a question (UNINTELLIGIBLE) one of the lead detectives.  “What has amazingly gone unasked by Mark Geragos is whether or not Detective Brocchini has said the “N” word in the last 10 years.  When this is answered, then and only then will we know if Scott Peterson is guilty.”  You know, get it, O.J., yes.

Last night the first American soldier to be charged with murder in Iraq in a U.S. military court after he shot and killed an Iraqi, but he will likely argue that a medic said nothing could be done to save the man.  Part of the Iraqi man‘s skull had been blown away.  The medic said he was dying. 

I said if this Iraqi man was dying on the battlefield and nothing could be done, I hope the prosecutors wouldn‘t try this soldier for murder because he was compassionate. 

Gary Winegarden asks, “Would you be of the same opinion if Captain Maynulet had shot an American soldier?”

Finally, from Naugatuck, Connecticut, Richard Rothwell.  “The ultimate question of perspective is should we shoot our own soldiers who have had an injury that‘s deemed to be fatal?”

All right, look, if the—if an American skull was blown away and the soldier was dying, according to the medic, and suffering, then I would hope that prosecutors would show some mercy.  That‘s all I‘m talking about, is showing some mercy if that was his intention, the soldier‘s, and that‘s to be determined. 

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

Coming up next, a special addition of “HARDBALL”.  Chris talks with the 9/11 commissioners on the eve of the third anniversary of September 11. 

Before we go tonight, I say good-bye.  

END   

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