updated 9/22/2004 11:40:18 AM ET 2004-09-22T15:40:18

Guests: Mark Hosenball, Roderick Boyd, Lucy Dalglish, Broadus Spivey, Bob Zelnick, Daniel Gotlin, William Fallon, James Carafano

DAN ABRAMS, HOST:  Coming up, is the man who gave CBS those seemingly phony documents about the president‘s military record now considering filing a lawsuit against the network? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Bill Burkett says CBS promised to keep his identity secret and to have experts authenticate the docents he gave them.  He says they didn‘t do that and now he is weighing his legal options against CBS. 

Plus, Muslim terrorist behead another American civilian in Iraq, the second in 24 hours.  Why are we having such a hard time catching any of those responsible?

And...

UNIDENTIFIED MALE:  Did Laci know you had that boat? 

UNIDENTIFIED MALE:  Yes, of course.  You can‘t go out and buy something, you know, without telling your wife.

ABRAMS:  Jurors hear what Scott Peterson told the detectives searching for his wife just days after Laci disappeared. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, CBS comes clean, sort of, 12 days after airing controversial memos about President Bush‘s National Guard service that appear to be fakes.  The network revealed its source, a retired National Guardsman who has long been a Bush critic.  Bill Burkett denies forging the documents, but admits to misleading newsman Dan Rather and his producers about how he got the documents.  Burkett even appeared on the “CBS Evening News” last night to discuss the scandal. 

(BEGIN VIDEO CLIP)

DAN RATHER, “CBS EVENING NEWS”:  Have you forged anything? 

BILL BURKETT, SOURCE OF CBS MEMOS:  No sir. 

RATHER:  Have you faked anything? 

BURKETT:  No sir. 

RATHER:  But you did mislead us...

(CROSSTALK)

BURKETT:  Yes, I did. 

RATHER:  You lied to us.  Why would I or anyone believe that you wouldn‘t mislead us about something else? 

BURKETT:  I can understand that question.  I can‘t.  That going to have to be your judgment and anybody else‘s. 

(END VIDEO CLIP)

ABRAMS:  Before we get to whether Burkett could or will now sue the network, question first is who is Bill Burkett?  Should CBS have known a lot more about him? 

Joining me now is “Newsweek” investigative correspondent Mark Hosenball.  All right, Mark, so bottom line, you know with some basic research, CBS should have known, should they have not, that this is a guy where they really have to be careful about what they‘re getting from him, right? 

MARK HOSENBALL, INVESTIGATIVE CORRESPONDENT, “NEWSWEEK”:  Well, I would have thought so.  I mean, in fact, the first thing that you would have known about this guy was that he had been out there months ago making allegations about having either overheard or over seen some sort of incident in which alleged top Bush aides were involved in cleaning out embarrassing material, sanitizing, weeding out record—Bush‘s National Guard records for the purposes, I guess, of cleaning it up or making it look better. 

This is a story that he started telling to reporters at the beginning of this year, which was instantly jumped on by the White House and all kinds of people came forward and said this is nonsense, this is rubbish, it‘s hogwash.  And subsequently interviewing this guy, reporters discovered that, “A”, he had a grievance against Bush, he had a grievance against the Texas Air National Guard and he also had, you know, it‘s kind of unkind to say it, but that he had a history of nervous breakdowns.  So, you know, it wouldn‘t have been hard to find this out.  Anybody who dealt with this guy earlier this year apparently knew this. 

ABRAMS:  But not—let‘s be clear.  Not credible, meaning if he‘s the sort of person who, if you had be working for CBS and they had said to you, based on what you know about him, and it sounds like you are talking about basic research.  You‘re not talking about sort of going into sort of criminal history files or anything else.  You‘re not talking about sort of going into background on him; just based on the basics you‘re saying not credible? 

HOSENBALL:  I‘m talking about public information that was either published or put in the—on the electronic media or that he told people himself.  I‘m not talking about any secret records or even in depth public records research.  I‘m talking about public information just lying there and the public information, I think at the very least, raises question about how you could deal with this guy as a source for sensitive information.

I mean, maybe you could deal with him as a source for some information or at least information that could be cross-checked somewhere else.  You can‘t completely dismiss everybody who has a colorful past as being unreliable. 

ABRAMS:  Right.

HOSENBALL:  But, on the other hand, this is somebody whose open background made him somebody that you‘d have to check out very carefully anything you got from him... 

ABRAMS:  And if someone had come to you the way he apparently did to CBS, and said hey, I want you to put me in touch with the Kerry campaign, I think that probably would put his credibility into question even more, right?

HOSENBALL:  Well, it certainly seems that maybe they overreached and they didn‘t think any of this stuff through very carefully when they did it, CBS. 

ABRAMS:  Mark Hosenball, thanks a lot for coming on the program. 

Appreciate it. 

So, Bill Burkett has been outed as the man who gave the memos to CBS. 

But now even CBS says they can‘t stand by the authenticity of those memos.  Where does that leave Burkett, though?  Could he sue CBS because his name has been dragged through the mud?  We‘ve learned that his lawyers are considering it.  His attorney Gabe Quintanilla would only say this.

We haven‘t got to the point where there is an actionable case against CBS.  I am monitoring the case closely and am very concerned about a breach of confidentiality. 

Joining me now is Roderick Boyd of “The New York Sun”.  He had—there was a cover story today in “The Sun” on this topic after he spoke to Burkett‘s first attorney.  Thanks very much for coming on the program.  Appreciate it. 

RODERICK BOYD, “THE NEW YORK SUN”:  Oh, thanks Dan. 

ABRAMS:  All right.  So let‘s put this into context.  I mean the first attorney says well, you know, things changed a little bit between the time I spoke to Roderick Boyd and the time CBS aired that piece last night, that changed things.  But you are saying bottom line is your story still remains in tact, which is basically what? 

BOYD:  Well, as—we spoke to David Van Os, who is Bill Burkett‘s—or was, until I believe two days ago, his attorney.  Van Os says he still has a personal relationship of sorts, so I guess a dialogue is a better word for it.  And that as of yesterday afternoon, Burkett was telling Van Os that there was—they were planning to at least consider and he did mean, you know, seriously consider filing a—an action against CBS...

ABRAMS:  On what grounds? 

BOYD:  Defamation of—actually, I believe it would be under a sort of a breach of contract, an oral agreement contract.  And it would basically speak to defamation of character, primarily defamation of character. 

ABRAMS:  Now, you don‘t think anything that—because you know he gave us the impression that because CBS sort of clarified things last night on the program, that, you know, that there may be less options here with regard to filing a lawsuit.  But it sounds like what you‘re saying is you still think that they‘re very seriously considering it anyway. 

BOYD:  Yes, I mean he—Van Os made clear to me that Burkett‘s economic livelihood going forward, which to be fair, has been, you know, none too spectacular.  He‘s a cattle rancher who hasn‘t filed an IRS personal tax return in I believe six calendar years.  That his economic livelihood would be, you know, broadly impacted, go to get loans, things along that lines.  Again, I‘m just a reporter for “The Sun”.  I couldn‘t speak to the broader legal maneuverings. 

ABRAMS:  Right. 

(CROSSTALK)

ABRAMS:  But I‘m just asking just in terms of what he indicated to you... 

BOYD:  Yes...

ABRAMS:  ... as to what he was thinking.

BOYD:  ... he made—he was beyond explicit.  We had to—at the “Sun” we had to be very careful to, you know, take out some of Mr. Van Os‘ more colorful colloquialisms, yes.

ABRAMS:  Roderick Boyd for “The New York Sun”, thanks a lot.

BOYD:  Thank you Dan.

ABRAMS:  So will he do it?  Might he actually win a lawsuit against CBS?  Our legal team weighs in along with a veteran journalist. 

And terrorists in Iraq apparently brutally murder another American hostage, beheaded him and threatened to kill an Englishman.  The question that I have is why can‘t we track down these terrorists?  We know that they‘re in Iraq.  They‘re beheading civilians. 

And jurors in the Scott Peterson case hear the lead investigator on tape confronting Peterson about what happened to his wife in the weeks after she disappeared.  We‘ve got the tape.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the man who gave CBS the legal documents about President Bush‘s National Guard service is suing the network.  Legal documents, does he have a shot?  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BURKETT:  I also insisted when I sat down with your staff in the first face-to-face session, before I gave up any documents, I wanted to know what you were going to do with them and I insisted that they be authenticated.

(END VIDEO CLIP)

ABRAMS:  Well apparently CBS didn‘t do a very good job of that.  Bill Burkett, the source of those damming—quote—“memos about President Bush‘s military service on the “CBS Evening News” last night.  CBS now admits it cannot authenticate the documents and Burkett claims he was relying on the network to do that. 

Now, you heard Burkett.  He is reportedly considering a lawsuit against the network.  That‘s, again, according to what we just talked about in the last segment.  Two questions—one, will he really file?  Two, would he have any chance? 

“My Take”—I don‘t think he‘s got a case here.  I‘m sure he‘s upset and angry, but yes, you can‘t sue just because you‘re embarrassed about what you did. 

Joining me now is attorney Lucy Dalglish with the Reporters Committee for Freedom of the Press.  I should note that Dan Rather is one of the 30 members on the committee for Lucy‘s organization and Texas plaintiff‘s attorney Broadus Spivey, as well as Mark Hosenball from “Newsweek” who is back with us.

All right, let me lay out two possible grounds here.  This is number seven.  And I want to ask you Lucy, look, let‘s assume for a minute that Bill Burkett is promised by CBS, we‘ll keep your name anonymous and we promise we‘re going to go to great lengths to authenticate the documents.  And let‘s say that the reasons that Burkett‘s name leaked out before was because of things CBS did and let‘s assume that CBS did not do everything that they could to authenticate the documents.  Might he have a lawsuit against CBS? 

LUCY DALGLISH, REPORTERS CMTE. FOR FREEDOM OF THE PRESS:  I don‘t see what the grounds would be.  I mean, certainly a breach of confidentiality, CBS did not identify him until he went on camera with Dan Rather and certainly he wasn‘t surprised to have found himself on television.  I mean he was there when the camera was turned on. 

ABRAMS:  But before that.  We‘re talking about the fact is that everyone seemed to know he—his name and who he was before this weekend. 

DALGLISH:  I don‘t think we have any reason to believe that CBS is the entity that revealed that source.  I mean, from what I was reading over the last four or five days, it was some of the document examiners who kind of said, well, I don‘t know where they came from.  I mean it was just good reporting. 

ABRAMS:  But there was also concern...

DALGLISH:  ... good reporting.

ABRAMS:  ... about the fact that they apparently used a Xerox machine at a place in Texas from a Kinko‘s, which could be identified and apparently that was CBS‘ fault. 

DALGLISH:  Well, how else are you going to get something faxed out of Texas?  There probably is only one Kinko‘s.  I mean...

ABRAMS:  Mr. Spivey, what do you make of it? 

(LAUGHTER)

ABRAMS:  Mr. Spivey?

BROADUS SPIVEY, PLAINTIFF‘S ATTORNEY:  Yes.

ABRAMS:  All right.  Now that—we get it.  All right, Lucy is making a little joke at your expense and everyone who lives in Texas, I‘m sure my Texas viewers are going to be thrilled. 

DALGLISH:  I‘m from North Dakota, OK...

ABRAMS:  All right.  All right, Mr. Spivey, go ahead. 

SPIVEY:  We‘ve got several Kinko‘s in Texas and I‘m not quite as confident as she is because I‘ve been practicing law 42 years and I realize that often when a case first starts, people draw impressions, but they draw impressions from part of the evidence.  And everybody, including the public has to wait until you get a little bit more information before you start...

ABRAMS:  Give us a theoretical.  I mean what Lucy is basically saying is kind of under whatever fact scenario you‘ve got here, she doesn‘t understand what legal grounds you‘d have for a case against CBS. 

SPIVEY:  The understanding that I have is that he‘s considering a defamation case and defamation doesn‘t necessarily just mean I call you a liar.  It could well mean that I make a statement from which an inference is drawn that creates a liability.  But, again, it‘s just premature and it‘s nice to have commentary like this at this age.  But I think both the lawyers on both sides and the public has to wait until you get a little bit more information...

ABRAMS:  Mr. Spivey, if you are an attorney for Mr. Burkett, what are you telling him?  I mean if he says to you, look, I‘m angry, I‘m furious.  My name should have never been out there, I think that CBS is the reason my name is out there.  I want to do something about this.  Do you say to him, hey look, you know, calm down.  You were the one who gave CBS the documents.  I know you‘re upset.  I know you‘re embarrassed.  But legally you‘re going to have a tough road here. 

SPIVEY:  I think in any defamation case, the plaintiff‘s lawyer has to tell his prospective client that you‘ve got a difficult road because number one, defamation cases are difficult and, number two, defamation cases against the media, any media defendant are—I won‘t say impossible, but they‘re next to impossible.  They‘re very difficult cases to pursue.

ABRAMS:  But Lucy, if President Bush, for example, which we know he probably, you know, wouldn‘t do, but if President Bush were to file some sort of lawsuit, then, you know, there would be a more, you know, a more—a claim that we‘d have to discuss a little further, right? 

DALGLISH:  Well yes.  I mean in a basic libel claim, you have to show that there was a false statement that was made and the plaintiff has to show that something was said that was false, that brought, you know, disreputable thoughts to come about the person, that it—the statement was about.  And then in a situation like this, you also have to prove that the statement was made with actual malice.  In other words, knowing that whatever you would have said about Mr. Burkett was false or with reckless disregard as to whether or not it was true or false. 

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  Let me take a...

(CROSSTALK)

ABRAMS:  ... let me take a quick break here.  When we come back, I want to just talk about the question, you know, a lot of people distrust the media.  A lot of people say this is the media‘s fault and a lot of people, Lucy, are saying why isn‘t the media legally, in this case CBS, legally accountable for this? 

And coming up, the detective who lead the search for Laci Peterson tells jurors there were 41 reasons why he was searching in the San Francisco Bay and not spending time following up on other leads in the case.  Of course, the bay exactly where she was found. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JOE LOCKHART, JOHN KERRY ADVISER:  We talked about three or four minutes.  He had some advice on how to hit back on the Swift Boat veterans who would be running these—this smear campaign against John Kerry.  You know, I thanked him for his interest and his advice.  Three or four minutes later it was over...

(CROSSTALK)

LOCKHART:  ... those are the facts...

UNIDENTIFIED MALE:  So Joe, you want us to believe that the documents that are now in such question were never brought up in your conversation...

LOCKHART:  I don‘t—not only don‘t want you to believe, I‘m telling you it never came up and Mr. Burkett on the record says it never came up.  And any suggestion to the contrary, there‘s no way to support that.  It did not come up. 

(END VIDEO CLIP)

ABRAMS:  Joe Lockhart who‘s working with the Kerry campaign, talking about one of the most interesting aspects of this whole CBS story, there‘s an allegation that the CBS producer, after Burkett asked for how to get in touch with the Kerry campaign, served as a conduit between Lockhart and Burkett. 

Mark Hosenball, “A”—from “Newsweek”—“A”, is that your understanding and “B”, basic journalistic faux pas? 

HOSENBALL:  Well, that‘s what I read.  I think—what‘s his name—

Lockhart actually told one of the papers that that was the case.  So, I assumed that it‘s true.  It doesn‘t look good.  I mean maybe as part of the information gathering (UNINTELLIGIBLE) or schmoozing Burkett, he really wanted to be put in touch with the Kerry campaign and she felt—the producer from CBS felt that she ought to do that...

ABRAMS:  Would you do it if you were asked to do something like that? 

HOSENBALL:  I might give him a phone number or something and tell him how to get a hold of the Kerry campaign.  I don‘t know that I‘d want to get too deeply involved in that way myself.

ABRAMS:  Let me ask Bob Zelnick, former ABC correspondent, chairs the Journalism Department at Boston University.  Basic journalistic faux pas, are we overstating this?  Does this happen all the time?

BOB ZELNICK, FORMER ABC CORRESPONDENT:  Worse than a faux pas.  No, I don‘t think it happens all the time.  I think that journalists should be journalists and politicians should be politicians and I think the appropriate answer was, as Mark said, give him a phone number and say call them and good luck to you.  I don‘t think...

ABRAMS:  And you give them the phone number, Bob...

(CROSSTALK)

ZELNICK:  I would give him a phone number.  I mean I think we can‘t walk around as the holy vestal virgins or something...

ABRAMS:  What if it was a quid pro quo though?  What if it was in exchange for me giving you these documents, I want you to give me certain numbers for people in the Kerry campaign. 

ZELNICK:  You know, there were so many vixens committed in this investigation and so much that is borderline libelous to the president that I‘m less concerned about that kind of quid pro quo.  What I am concerned about is that CBS treats the evidence seriously and there were excellent reasons to feel that Burkett was an unreliable source.  There were excellent reasons to feel that the documents themselves were fraudulent and CBS did nothing but...

ABRAMS:  Yes.

ZELNICK:  ... stonewall and play hardball and make mistake after mistake. 

ABRAMS:  Lucy, it‘s one of those days where it is hard to be the defender of the press, right?

DALGLISH:  Yes, it‘s one of those days. 

ABRAMS:  Lucy Dalglish, Broadus Spivey, Mark Hosenball, and Bob Zelnick, thanks a lot.  Appreciate it. 

Coming up, terrorists in Iraq behead another American hostage.  Abu Musab al-Zarqawi, again, says he and his al Qaeda linked group are responsible.  Question:  Why can‘t we track him down or even any of his cronies? 

And jurors hear more of Scott Peterson‘s phone calls.  This time he‘s not talking to his girlfriend, but to the detectives searching for Laci Peterson.  A detective with some tough questions for him about what happened to his wife.  We‘ve got the tape. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the lead detective in the Scott Peterson case says his department was able to come up with 41 reasons why Laci Peterson‘s body would likely be found in the San Francisco Bay, the same area Peterson went fishing that day and the same place where they actually found the body, but first the headlines.

(NEWS BREAK)

(BEGIN AUDIOTAPE)

RECORDER:  Your call has been forwarded to...

(BEEPS)

RECORDER:  You have one unheard message.  First message. 

SHARON ROCHA, LACI PETERSON‘S MOTHER:  Hi Scott.  This is mom.  It‘s about quarter to 1:00.  Just wanted you to know I just got a call from Ron Cloward.  He‘s at the marina and it was a boat anchor.  Of course, we knew it wasn‘t Laci, but I just wanted you to know...

(WHISTLE)

ROCHA:  I‘m going to call your house in case you don‘t get this message first.  Bye. 

RECORDER:  Message erased.

(END AUDIOTAPE)

ABRAMS:  That message, just one of about 41 reasons which led the lead investigator in the Scott Peterson case to believe that Laci‘s body would ultimately be found in the San Francisco Bay, exactly where it was found.  On Detective Craig Grogan‘s second day on the stand, another audiotaped conversation played for the jury—this time, Grogan not beating around the bush about his suspicions. 

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  Craig, I need to know what happened to her.  You—and are you telling me you know what happened to her?

CRAIG GROGAN, DETECTIVE IN THE SCOTT PETERSON CASE:  Scott, I mean let‘s be serious with one another. 

PETERSON:  Craig, tell me what—you know what happened to her.  Do you know where she is?

GROGAN:  Well, I know where we‘re looking for her and...

PETERSON:  Where?

GROGAN:  ... I think we‘re probably going to find her over there in the bay.

PETERSON:  Oh.

GROGAN:  It‘s a matter of time.

PETERSON:  Craig, you—I had nothing to do with Laci‘s disappearance (UNINTELLIGIBLE).  OK, yes.  Hey (UNINTELLIGIBLE) I‘m going to go.

GROGAN:  Scott, what I‘m offering you is an opportunity here to end all of this nonsense...

(END AUDIOTAPE)

ABRAMS:  We‘ll play more of the tape.  But first, let‘s go to the courthouse and once again our friend Edie Lambert from NBC affiliate KCRA. 

Edie, it‘s a powerful tape. 

EDIE LAMBERT, KCRA REPORTER:  It is a powerful tape and, Dan, this has been a pretty interesting day.  As you know, the prosecutors have been widely criticized for failing to connect the dots in this case.  That‘s exactly what they did today as they led Detective Grogan through many of the reasons that he believed that Scott Peterson killed his pregnant wife. 

Now keep in mind at the point that they‘re talking about, he was trying to narrow down his investigation.  He received 10,000 tips.  So, he was brainstorming with another detective about the likely places that they would find Laci Peterson‘s body.  They came up with the San Francisco Bay.  Here is just part of that list, part of the reasons why they thought that they would find her body there.

First of all, Scott placed himself at the San Francisco Bay.  That was his alibi.  Other records also indicated that he was there.  A trailing dog picked up Laci‘s scent at the Berkeley marina.  Scott went back to the marina repeatedly and Detective Grogan thought that that was suspicious behavior after Laci had disappeared. 

Grogan said that Scott‘s conflicting alibi seemed suspicious, telling some people he had been fishing, other people he had been golfing the day that Laci was reported missing.  Also the—quote—“mess of concrete in Scott Peterson‘s warehouse”, Grogan saying it looked like he made more than one concrete anchor.  Grogan went on and on, listing 41 reasons that he thought Laci‘s body was in the San Francisco Bay and that was on January 22, four months before her body actually turned up there. 

Also today, the jury saw interviews with members of the media, including Diane Sawyer.  Defense attorney Mark Geragos had fought all the way to the State Supreme Court to keep the jury from seeing these interviews.  Obviously, he lost that battle.  So today the jury saw Scott referring to Laci in the past tense.  Saw Scott lying about when it was that he told his wife about the affair. 

And, Dan, he is still on the stand right now.  We‘re hearing more from Detective Grogan this afternoon. 

Back to you. 

ABRAMS:  All right, Edie Lambert, stick around. 

“My Take”—no one who believed in Scott Peterson‘s innocence, his family in particular, believed the bodies would be found in the San Francisco Bay.  Why?  Because they knew how incriminating it would be that he was fishing there.  It‘s the most important piece of evidence in the case and yet, that‘s exactly where the body was found. 

Now I know the defense wants to talk about all the leads that were not followed up.  But if the authorities had done what the defense is suggesting, they probably wouldn‘t have found the body exactly where they did. 

Let‘s bring in our legal team—former prosecutor Bill Fallon and criminal defense attorney Daniel Gotlin.  All right, Mr. Gotlin, you know, doesn‘t that make sense what I‘m saying?  I mean it sounds like what the defense is saying they didn‘t follow up leads.  They didn‘t do this.  They should have done this.  They should have done that.  If they had done all that, they wouldn‘t have found the body in the bay. 

DANIEL GOTLIN, CRIMINAL DEFENSE ATTORNEY:  Well, of course, it‘s damaging to the defense.  There‘s no question about that.  That the body turns up where he was fishing and you just can‘t get around that.  Fortunately, for the defense in my view, there is still really no forensic evidence or anything else leading him directly to the murder.  And why the prosecution has wasted months in getting to the point and the heart of their case is beyond me. 

ABRAMS:  Yes.

GOTLIN:  That‘s a good way to lose the jury. 

ABRAMS:  Well there‘s no—look, we all agree—I mean Bill Fallon, myself, Leslie Crocker, we all think the prosecutors have messed up this case.  But that‘s not a question of the evidence.  How about this and this came up again with Grogan.  The—remember, Scott Peterson said in some of these media interviews oh, you know, I have cuts on my hands.  Of course, you know, why would there have been blood in the truck?  And I work out in the fields a lot of the time.  You know, I have cuts on my hands.  Well here‘s what he told Grogan. 

(BEGIN AUDIOTAPE)

GROGAN:  Either one of you ever been injured in the truck or anything? 

You ever been in an accident in it or anything like that?

PETERSON:  No, never been in an accident.  Might find blood climbing in it, but...

GROGAN:  You know what that was from?

PETERSON:  Well I mean I cut my hands every day. 

GROGAN:  OK.  (UNINTELLIGIBLE)

PETERSON:  I cut my hand that day. 

GROGAN:  You cut your hand that day?

PETERSON:  Yes.

GROGAN:  How‘d that happen?

PETERSON:  (UNINTELLIGIBLE) reached in that side pocket in the door.

GROGAN:  What cut you?

PETERSON:  I mean I know Allen Brocchini looked at my hands and I know he noticed cuts on my hands, so he knows.

(END AUDIOTAPE)

ABRAMS:  Bill, it worked for O.J.

WILLIAM FALLON, FORMER PROSECUTOR:  Yes, I mean, how it ever worked for O.J., as you know, only because it‘s California.  I think actually as bad as the prosecution is, Dan, and you know we agree on that, they have been slow to get here.  They should give—Grogan is now the star witness, I think much more than lady Amber Frey. 

I mean you know in the Amber Frey case, it was Scott that was the witness.  Here he‘s still the witness, such as I‘ve got to go now, we think you did something, got to go now, he says.  Those types of things worked out.  But Grogan is showing why it pieced together, how he came to his suspicions and rather than a rush to judgment, remember it took months for the bodies to end up there, I think it‘s for the first time put in front of the jury, leading them to an inescapable conclusion. 

Whether they come there or not, I don‘t know.  But it permits them now to say there‘s no way anybody else, any kind of mental wing nut kind of the satanic cult put the body there.  This is leading someone inescapably to a conclusion, if they want to grab it, that it‘s only him and only Scott.

ABRAMS:  You know, Scott, what about the—I mean the lies?  I mean, you know, or the different stories.  I mean it—no one seems to focus on that.  The fact that he‘s telling some people he went golfing, other people he went fishing.  We‘ve got the business about different stories as to how he might have cut his hand.  I mean I‘m just—this is just the tip of the iceberg.

GOTLIN:  Well, the lies clearly, that is the most damaging thing in any defense case and particularly in this one and they should have been focusing on it all along.  However, if you think about it, they have been trying to get him on tape time after time after time to basically confess or inculpate himself in some way to this particular crime and the only thing you hear him saying over and over again is I had nothing to do with this and you know now he doesn‘t have to testify and say that and sure, there is damaging testimony. 

ABRAMS:  But Bill, that‘s the only thing he is consistent about, right...

FEIGEN:  That‘s the only thing.  In fact, I actually like the tapes.  There was no way he was going to get on and say, oh, by the way, Amber, I‘m going to murder you next as I murdered my wife.  He is not going to say that. 

These tapes show that cold heart.  Interestingly enough, if we give the prosecution any credit, they set out that very first week and gave those two—quote—“alibis.”  I was fishing.  I was golfing.  Remember, we had that old guy who said and then he wasn‘t even participating in the let‘s find Laci thing.  I am telling you those are the types of things they‘ll be put together for guilty. 

ABRAMS:  And this conversation between Grogan and Scott Peterson is so interesting.  Let me play—I‘m almost out of time—let me play one more piece of sound from today‘s testimony.

(BEGIN AUDIOTAPE)

GROGAN:  OK, we have looked at everything that has come in and we are trying to eliminate all of the stuff that has come in and...

PETERSON:  I just hope you follow through right on all leads. 

GROGAN:  Well...

PETERSON:  ... find her.

GROGAN:  I want the door open between us.  If you want to end all of this nonsense, all you need to do is call me, all right.  We can sit down.  I will not treat you badly.  You can tell me what happened.  We can get Laci back where she needs to be...

PETERSON:  I knew it.

(END AUDIOTAPE)

ABRAMS:  All right, I‘m out of time, but you know, it just shows you the sort of relationship between those two.

Bill and Daniel, I‘m sorry, I wanted to spend more time.  I‘m sorry (UNINTELLIGIBLE).  Edie, thanks a lot.

Coming up, another American hostage beheaded in Iraq allegedly at the hands of al Qaeda ally Abu Musab al-Zarqawi.  Why is it taking so long to find him or any of his cronies?

A lot of your e-mails on last night‘s “Closing Argument”, Dan Rather and the CBS document scandal.  I said this was likely reckless journalism, but almost certainly was not partisan politics by Dan Rather.  Shocker, some of you disagree.  I‘ll be taking it back and forth...

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Yesterday, an America citizen was beheaded.  We express our heart-felt condolences.  We send our prayers to the Armstrong family. 

(END VIDEO CLIP)

ABRAMS:  President Bush talking about the slaughter of American hostage Eugene Armstrong in Iraq.  Today a second American contractor, Jack Hensley, reportedly beheaded one day before his 49th birthday by the same terrorist kidnappers who murdered Armstrong. 

I‘ve seen the tape of Monday‘s atrocity on the Internet.  I want to tell you what I witnessed.  A terrorist, believed to be Zarqawi reads a statement as Armstrong rocks back and forth, probably knew his fate.  And then blood curdling screams I‘ll never forget as a terrorist takes a knife to his neck.  Why am I being so descriptive? 

Because as we know, not one of the barbarians involved in this and the other savagery has been caught.  I want to make sure we do not forget.  But first, a report from NBC‘S Ned Colt in Baghdad. 

(BEGIN VIDEOTAPE)

NED COLT, NBC NEWS CORRESPONDENT (voice-over):  The report tonight on an Islamic Web site, claiming Jack Hensley, a contractor from Georgia, has been executed.  The second American hostage killed in as many days.  Tonight, a family friend spoke about their loss. 

JAKE HALEY, FRIEND OF FAMILY:  Jack is the friend that everybody wants to have.  The world has lost a great human being. 

UNIDENTIFIED MALE:  (SPEAKING FOREIGN LANGUAGE)

COLT:  Last night, it was Eugene Armstrong who was killed.  The video posted on another Web site.  The Michigan native‘s body was later found sprawled under a Baghdad overpass.  The two Americans and a British colleague, Kenneth Bigley, all three contractors for a Gulf-based construction firm, were kidnapped from their home last Thursday in Baghdad. 

CIA sources tell NBC News that an analysis of the execution video indicates that Armstrong‘s killer is Jordanian-born insurgent Abu Musab al-Zarqawi.  Iraq‘s most wanted insurgent is demanding the release of women held in American-run prisons here.  The U.S. says there are only two, scientists in Saddam Hussein‘s weapons program. 

(UNINTELLIGIBLE) 150 foreigners have been taken hostage in Iraq almost all this year.  At least 28 have been killed.  Beheading hostages has proven a shocking tactic. 

WALID PHARES, TERRORISM ANALYST:  There‘s a big difference between shooting a soldier and beheading a civilian.  Terrorists know very well that in democratic societies, of course, beheading a civilian will have a greater impact. 

COLT (on camera):  The American and British governments say they won‘t negotiate.  Tonight, those holding Kenneth Bigley say he will be killed, too, unless their demands are met.

Ned Colt, NBC News, Baghdad. 

(END VIDEOTAPE)

ABRAMS:  “My Take”—this is being forgotten by many.  I‘m not going to.  I‘m going to ask the question, why aren‘t we catching any of these guys?  We‘ve got a $25 million award out on Zarqawi.  NBC‘s investigative producer Bob Windrem points out that in Monday‘s video you see an open window, which indicates they may not be afraid of people seeing or hearing them.  And while the U.S. keeps bombing alleged Zarqawi sites in Fallujah, Armstrong‘s body wasn‘t found there, but in Baghdad, where the U.S.  security presence is at its heaviest. 

So what‘s going on?  Our guest, Roger Cressey, terrorism expert, NBC News analyst, served on the National Security Council.  James Carafano, senior research fellow on defense and homeland security at the Heritage Foundation.  Gentlemen, thanks very much. 

Roger, let me start with you.  What‘s going on here? 

ROGER CRESSEY, NBC NEWS ANALYST:  Well, it‘s pretty simple, Dan.  You have Zarqawi‘s network operating with tremendous amounts of flexibility.  Frankly, they think they own the streets.  The fact that the body was found outside Baghdad is very interesting.  It means one of two things.  Either Zarqawi or the killers, if it‘s not Zarqawi, are not in Fallujah or they believe they have the ability to operate in and out of Fallujah, which is even worse.  And the bottom line is you‘re dealing with a situation where there is a real lack of security inside Iraq and this is just the most tangible example of it right now, unfortunately. 

ABRAMS:  But (UNINTELLIGIBLE) we found Saddam Hussein basically hiding in a hole.  I can understand Osama bin Laden, a little more difficult, unclear sort of where he is, control of the Pakistan Afghan border, another issue.  The U.S. is in control o Iraq.  Why are we having such difficulty finding al-Zarqawi and his cronies? 

JAMES CARAFANO, THE HERITAGE FOUNDATION:  Well Zarqawi is probably about the hardest target you can ask for.  I mean this is a 38-year-old professional terrorist that has lived in this region for years, has run a terrorist network for years, knows people in all the countries, in all sides of the border, has lots of friends and lots of connections.  So, this is probably the hardest kind of guy to root out. 

ABRAMS:  But he doesn‘t seem to be concerned out getting—we talk about that open window, for example.  He doesn‘t seem to be particularly concerned about getting caught.  I mean there is a sense that there‘s got to be a way to do more in a place like Iraq where the U.S. has a good deal of control. 

CARAFANO:  Well, let‘s remember, you know, rooting out terrorism is often the hardest thing.  The irony is, is if you go through history, few terrorist campaigns ever achieve their goals.  Most of them fail.  But on the other hand, they‘re enormously hard to stomp out because they‘re very easy to do. 

Remember, you know, in the United States we have something called the environmental liberation front.  These guys do millions and millions of sabotage every year.  The FBI doesn‘t even know who they are and this is in the United States where we have great rule of law, great police everywhere.  So I mean these things are just hard to do. 

ABRAMS:  But Roger, I believe we‘d be able to devote a lot more resources in Iraq to catching these guys than we are devoting to that organization, for example. 

CRESSEY:  Well, James is right.  It‘s tough to find one individual or just a small group of individuals.  But Dan, I challenge your central point.  We don‘t control Iraq.  That‘s the—this is the whole problem.  The violence and instability is at such a degree of randomness now that we do not have the ability, nor does the Iraqi government have the ability, to control events on the ground on a day-to-day basis.  When you have car bombs and suicide bombers going off in all major cities right now, where you have three or four cities that pretty much are being run by the terrorists, we don‘t have that type of control. 

ABRAMS:  James, do you agree with that? 

CARAFANO:  Well, there is a lot of terrorism going on.  That‘s a no-brainer.  You know, but again, we have—I think we have to quit using the violence and terrorism as a metric for whether we‘re going to be successful or not.  If our goal is to eliminate all terrorism in Iraq, I can tell you right now we‘re going to fail. 

If it‘s to prevent U.S. casualties, I can tell you right now we‘re going to fail.  If it‘s to establish a legitimate government, put Iraqi security forces in the field and put them that are responsible and to turn the country over to them, I think that‘s an achievable goal because the only thing that can stop that is a civil war.  And as terrible as the terrorism is, as awful as it is, in my mind there‘s not indications yet that that‘s a track we‘re headed down.

ABRAMS:  Roger, final word on that.

CRESSEY:  Well, it remains to be seen.  The bottom line is there‘s a percentage of the Iraqi people that have frankly given up on this new government and also given up on the United States.  And unless we put in place policies and support the Iraqi government in trying—reestablish security in the country it is going to degenerate into a civil war unfortunately.

ABRAMS:  All right.  Well, Roger Cressey, James Carafano, you know, I‘m a layperson in this regard.  It‘s just very frustrating, but, you know, you listen—you understand the frustrations.  I mean it‘s hard to have any answers here.

All right, coming up, what do you call people who target civilians, behead them, use nails to make bombs more lethal in malls?  I know what I call them.  It‘s not what most in the mainstream media call them.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Why are some many in the media afraid to call terrorists what they are, terrorists.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why are so many in the media afraid to call terrorists what they are, terrorists.  Instead, many use softer, more heroic and I would say less accurate words like insurgents, militant or rebel.  “Reuters” is involved in a flap now with a Canadian newspaper chain about the Canadians‘ changing “Reuters‘” euphemisms for the word terrorism or terrorists. 

“Reuters” saying that they don‘t use—quote—“emotive words” when labeling someone.  Emotive?  Why don‘t they just say we‘re unwilling to relay the news in the most accurate way possible?  They‘re not alone.  Many of the mainstream papers, television broadcasts do it as well. 

Let‘s be clear.  I am talking about the targeting of civilians by suicide bombers or other cold-blooded murderers.  Let‘s take a look at the dictionary definitions.  Webster‘s defines terrorism as violence committed by groups in order to intimidate a population or government into granting their demands.

Oxford defines terrorist as anyone who attempts to further his views by a system of coercive intimidation. 

It sure sounds like the shoe fits for al Qaeda terrorists in Iraq and elsewhere in the world, for the Chechens who massacred children at that school and Palestinians who target civilian buses and malls.  A rebel, according to both dictionaries, is one who takes arms against the government or ruler.  That wouldn‘t really apply to indiscriminate targeting of civilians. 

How about insurgent?  Well both sources say that is—quote—“one who revolts against civil authority, a rebel not recognized as a belligerent”—basically a freelance rebel.  Same problem.  It‘s nowhere near as accurate as terrorists when you‘re talking about people trying to kill civilians. 

Militant is another media favorite.  Well that‘s about as nondescript as you can get.  Engaged in warfare or combat, according to both.  But again, engaged in warfare against civilians?  It‘s not that these terms are always wrong.  They‘re just nowhere near as right as terrorist. 

It‘s time for the media to step up to the plate and stop treating these killers with respect they don‘t deserve. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Dan Rather and

CBS News acknowledged yesterday that they can no longer vouch for the

authenticity of the—quote—“newly discovered memos” from the—quote

·         “personal file of President Bush‘s former squadron commander in the Texas Air National Guard.”

In my “Closing Argument” I said this was likely overeager, possibly reckless journalism, but almost certainly not partisan politics by Dan Rather and CBS as some are claiming.  Many of you responding. 

Nancy Smith in Evansville, Indiana, “CBS talked to the general‘s son and widow prior to running their story.  When they told CBS the documents were fake and the general didn‘t feel that way about George W. Bush, CBS didn‘t take a second look and didn‘t officially interview them.  They just pushed through with what they wanted to believe.  We all knew the liberal media did things like this all the time.”

Nancy, I‘m not going to vouch for CBS‘s reporting on the story, but for you to suggest that Dan Rather did it as part of a liberal agenda means you‘d also have to believe he‘s a complete idiot who would never have recognized the risk of getting caught and the repercussion.  I don‘ buy it. 

From Houston, Texas, John Harlan.  “You exculpated Dan Rather of any political motivations in his forgery story by saying that he was not dumb, but you might recall that when he was caught a few years ago headlining at a Travis County Democratic Party fundraiser for Al Gore, he said sometimes I can be as dumb as a sack full of hammers.  I think this is one of those times and the sack is not empty yet.”

OK, John, at least if you argue that Dan Rather is dumb, you‘re being intellectually consistent.  But you know as well as do I that he‘s a lot of things.  Dumb is not one of them. 

Kim Guilbeau writes, “Your “Closing Argument” on the CBS story was right on the money.  Honest, straightforward and in my opinion correct.  This has nothing to do with partisanship unless Rather is a Bush supporter. 

You‘re one of the few anchors that gets it.”

From Portsmouth, New Hampshire, Mick Studer.  “There‘s absolutely no harm to the American public and the real issue should be whether or not the substance of the memo was false.”

Now Mick, I disagree with you on that.  There is great harm when the public loses faith in our ability to report these stories accurately and that is what has happened here. 

On Friday, Michael Jackson in the courtroom face-to-face with the mother of the boy accusing him of molestation, seeing them for the first time since the charges were filed.  Jackson‘s attorney admitting Jackson paid other accusers big bucks to settle out of court. 

Ipse Esq. writes, “It appears to say the least incongruous that Jackson‘s attorney would argue that the 27 million paid to two known previous accusers is miniscule compared to Jackson‘s fortune and then on the same day argue that Jackson‘s $3 million bail is excessive.”  Fair point. 

Finally, Marie Mazei in Glendale, California.  “Did you catch the point that Michael Jackson‘s attorney said in his statement that there are millions of kids in the world that his client did not harm?  Let‘s hope this is so.  Even Michael Jackson couldn‘t have possibly molested all the kids he‘s come in contact with.”

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

Coming up next, “HARDBALL” with Chris Matthews—more on the controversy over CBS and those documents.  Among others, Senator John McCain is on the program. 

Thanks for watching.  See you tomorrow.

END  

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