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'The Abrams Report' for May 18

Read the complete transcript to Tuesday's show

Guests:  Shereef Akeel, Kevin Byrnes, James Thompson, Richard Ben-Veniste, Jim Hall, Todd Bosley, Eugene Volokh

DAN ABRAMS, HOST:  Coming up, an alleged Iraqi prisoner threatens to go to a U.S. court saying he should be paid for abuse he says he endured at Abu Ghraib prison. 


ABRAMS (voice-over):  An Iraqi-born Swedish citizen claims U.S.  soldiers tortured him.  Now he wants more than $100,000 from the Army and his American lawyer vows to make them pay.  He will join us for debate. 

Plus, a young family killed on a highway when a 40-ton steel overpass beam dropped on their SUV.  Just an hour earlier, someone else called 911 to report seeing the beam buckling, but what happened?

And Governor Arnold Schwarzenegger is suing to terminate this bobblehead doll.  He says the company didn‘t have permission to use his image.  The company says they don‘t need it. 

The program about justice starts now. 


ABRAMS:  Hi everyone.  First up on the docket, this was the scene in Baghdad today, as the Army prepared for Wednesday‘s court-martial of Specialist Jeremy Sivits, the first American soldier to be tried for allegedly abusing Iraqis held at Abu Ghraib prison.  Now this comes as some Iraqis are demanding hundreds of thousands of dollars in claims against the U.S. Army. 

So far, two cases that we know of.  The latest filed last week on behalf of an Iraqi-born Swedish citizen identified in his claim as Mr.  Saleh.  He says he was arrested last year in Iraq and tortured by American troops at three locations including one he says he was familiar with, Abu Ghraib where Saleh says he was tortured in the 1980‘s for opposing Saddam Hussein. 

Mr. Saleh says, U.S. soldiers hooded, stripped and slapped him, shocked him with an electric stick, beat him on the genitals, dragged him by the neck with a belt, and sodomized him with a stick.  Mr. Saleh also says U.S. soldiers took his car and $79,000 he brought to Iraq to open a business.  He says he wants the money back, compensation for his car in an excess of $100,000 to compensate for what his claim describes as his pain, suffering and mental and emotional distress. 

The Army could face many claims like this, so the question we‘re going to ask is can they actually recover in these cases against the U.S.  government, which of course means the U.S. taxpayers?  I‘m joined now by Mr. Saleh‘s attorney, Shereef Akeel and by former Navy JAG Kevin Byrnes.  Thank you both very much for coming on the program.  Appreciate it.



ABRAMS:  All right, Mr. Akeel, let me start with you.  Lay out your claim and lay out why the U.S. government you believe may have to actually pay in a court of law. 

SHEREEF AKEEL, SALEH‘S ATTORNEY:  Well, Mr. Saleh has always been a friend of the United States.  He always subscribed to the principles of democracy and as a matter of fact, in ‘85 he was tortured by Saddam Hussein in Abu Ghraib because of his advocacy against the Baath party.  Well after we toppled Saddam Hussein in just—earlier this year, we encouraged Iraqi nationals to return to their country, reconnect with their families, invest in their country and this is what he just did.  He was in exile in Sweden.  He became a national citizen.  He had life savings of 79,000 and a car.  He went to Iraq to do that very thing, to be part of democracy, the very people that we‘re appealing to. 

ABRAMS:  But let‘s focus on the legal issues.  I mean...

AKEEL:  Sure.

ABRAMS:  I mean look, if someone stole his $79,000, if someone literally took $79,000 for him and he‘s been released from prison, I can‘t imagine that there‘s going to any defense apart from either we didn‘t take it or we‘re going to give it back.  So I think that seems to me to be a slightly separate issue.  But the issue of the pain and suffering, et cetera, of being abused at the prison, lay out your legal claim there. 

AKEEL:  Well the Military Claim Act provides for such legal redress.  If you provide—if you file a claim within two years of the incident, then this is called an administrative claim.  It‘s not—it does not yet go to the courts.  It allows the military to exercise its discretion to determine if the claim is meritorious and if in fact, they do find it meritorious and they trace—and they confirm that my client was actually there, that they actually have possession of his automobile—we have the title—and the cash is in the automobile, then they would deem it meritorious.  If it‘s over $100,000, it goes up the chain of command, where then the secretary of the Treasury is ordered to pay a certain amount. 

ABRAMS:  Lieutenant Byrnes, this seems to me to be opening up a huge can of worms.  I mean is that really what‘s going to happen, is that each and every one of the Iraqis who claim that they were abused, are going to take their grievances to the military and maybe ultimately to the courts? 

LT. KEVIN BYRNES (RET.), FMR. NAVY JAG:  Well I don‘t think they can go to the courts, because actually the act that applies is the Foreign Claims Act, which involves non-combat activities of the U.S. military service members and their agents when they inflict property and personal damage on individuals.  So it‘s not the Military Claims Act, it‘s a Foreign Claims Act, first of all. 

But I don‘t think there is no right to go to court under the Foreign Claims Act.  The Foreign Claims Act is a discretionary act that allows the military in order to promote good relations overseas to pay certain claims up to $100,000.  So the idea that they‘re actually going to go into a U.S.  district court or any court—I‘m not even sure that a court would have jurisdiction—is unlikely. 


BYRNES:  The second thing is I think that a lot of these claims are going to be dismissed on their face.  I‘ve reviewed the claim that has been raised by the gentleman and I think factually it has a number of problems with it, but it also is akin to—you know this is sort of what happens after a hurricane or something.  People start filing property claims and sometimes they‘re specious.  The larger issue of whether every Iraqi detainee can file a military claim, sure, they can file an administration claim to the Army.  There‘s no right to recovery.  It‘s totally discretionary on the Army‘s part. 

There‘s no guarantee of recovery.  And one important fact, I think, that has to be pointed out is the only way these claims can even legally be paid under the Foreign Claims Act is if it is first determined that these individuals were friendly to the United States.  Foreign Claims Act is designed not to be like a catch all, where you know we shoot at your house as you‘re shooting at us and you get to recover for your property damage.  It‘s really a situation where the United States in its discretion tries to ameliorate the impact...

ABRAMS:  Lieutenant Byrnes, before I go back to Mr. Akeel, what is it specifically that you think is the most specious aspect of the claim...

BYRNES:  Well...

ABRAMS:  ... that you read? 

BYRNES:  This idea that the gentleman took $79,000 in cash in his life savings, put it in a suitcase, flew over to Iraq and was driving around innocently around Iraq in a Mercedes Benz with $79,000 of cash lying around, is just from a former prosecutor point of view, a little bit unbelievable.  And secondly, this torture claim—one of the interesting things in the claim that‘s raised is this idea there‘s a constant focus on the genitalia, because obviously that‘s the most inflammatory part of it. 

And the claim is punctuated with constant references to God, which again is inflammatory.  But at the end of the day when the claimant comes in and says, and I had a doctor look at me, there are no bruises to the genitalia that are noticed.  There are no bruises other than one bruise to the leg, I believe.  And I think factually the claim is specious and...

ABRAMS:  All right, Mr. Akeel.

AKEEL:  I‘d like to address this on several grounds.  First of all, regarding encouraging Iraqi nationals to return to their country, many nationals return to their country with cash.  There‘s another claim from another gentleman from Portland, Oregon, who had $109,000.  There was no banking system where you can have the funds and be able to economically invest.  Second, regarding the claim and the torture, there are things in that claim that are independently corroborated with what has been produced already by the Taguba report.  And, true, there aren‘t these physical harms because the problem is unlike...

ABRAMS:  This goes way beyond the Taguba report...

AKEEL:  ... unlike...

ABRAMS:  ... right, I mean...

AKEEL:  ... if I may...

ABRAMS:  No...

AKEEL:  ... Lieutenant...

ABRAMS:  No, it‘s Dan.  It‘s Dan.  It‘s me and I apologize for interrupting you.  I just wanted to say that you would agree that this goes well beyond the Taguba report, what‘s in your claim, correct? 

AKEEL:  Well that‘s—precisely that increases the validity of my claim because there have yet not been certain things disclosed, which is in that claim, including tying rope to male‘s genitalia five to 12 and pushing one of the males where the rest would fall.  There are other unspeakable crimes that are in that claim that have not yet been disclosed.  But I want to go back to my point, what I was trying to make...


AKEEL:  ... is he was subjected to torture by Saddam Hussein in first stint in Abu Ghraib, that physical torture.  This time around the very people he fought for all his life and he—the one who wanted to liberate his country, he was subjected to non-physical, more mental torture.  The very kind that would infuriate the Arab population and it was relaced (ph) and replete with sexual activities that is just beyond and it‘s inhumane. 

ABRAMS:  I‘ve only got 10 seconds left.  Lieutenant Byrnes...

BYRNES:  Sure.

ABRAMS:  ... bottom line is he‘s going to have a real uphill battle getting any money here, right? 

BYRNES:  Yes, I don‘t believe he‘s going to recover...

AKEEL:  If I can address this...

ABRAMS:  Look, I know your position is that you have a good case and you have made your case I think very adequately and very eloquently. 


ABRAMS:  Thank you.  I appreciate—I‘m sorry.  I‘m out of time, Mr.

Akeel and Lieutenant Byrnes, I thank you both very much...

BYRNES:  Thank you. 

ABRAMS:  ... on the program.  I appreciate it. 

Coming up, the 9/11 commission travels to the scene of the crime to explore what went wrong between New York‘s bravest and New York‘s finest on the day of the attack.  I will talk to two of the 9/11 commissioners. 

A young family dies when a highway girder collapses.  Officials had been warned of a problem an hour earlier, now they have a problem.

And why a bobblehead is not just a bobblehead when Arnold is the subject.  He‘s suing to stop the company from making the toys. 

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


ABRAMS:  Coming up, the tyranny of the minorities contributing to war between the majorities that Israelis and Palestinians clash in the Gaza Strip.  Coming up.


ABRAMS:  We‘re back.  The 9/11 commission in New York today questioning the city‘s police and fire commissioners, the first responders to the scene to the World Trade Center two and a half years ago.  The committee‘s preliminary report found that rivalry between the NYPD and the fire department as well as conflicting advice from emergency teams hampered rescue efforts.  The commission also blamed failed communication systems, the two-way radios police officers and fire fighters used that day, although former New York City Police Commissioner Bernard Kerik and former Fire Commissioner Thomas Von Essen both in charge on September 11 didn‘t see it that way.


BERNARD KERIK, FMR. NYC POLICE COMMISSIONER:  An important point needs to be made here.  Throughout my tenure as the police commissioner of the city of New York, I had a great relationship with the fire commissioner and his department.  I did not see or was I ever made aware of an instance where there was a lack of coordination between our respected departments when it came to doing our jobs. 

THOMAS VON ESSEN, FMR. FDNY COMMISSIONER:  One of the biggest problems was the amount of traffic on the radios that day.  Firefighters normally use their radios to talk to each other point to point.  They do not go through a central dispatch and that is very important in an operation.

KERIK:  The thing with the walkie-talkies—listen, I‘m not an expert, but I can tell you this—go to any of the communications companies out there, go to the best, go to Motorola, go to the best there is, show me one radio, show me one radio that they will guarantee you, this radio will go through that metal, it will go through the debris, it will go through the dust.  You will have 100 percent communications 100 percent of the time.  There is none. 


ABRAMS:  Testifying tomorrow, former New York City Mayor Rudolph Giuliani.   I‘m joined now by one of the 9/11 commissioners, James Thompson, Illinois‘ longest running governor and a former U.S. attorney in Illinois.  Commissioner, thanks very much for coming on the program.  Appreciate it.


ABRAMS:  All right, so first of all, it seems that there were testy exchanges between some of the commissioners and some of the people that have been in charge of the fire department and the police department.  What do you think that the fundamental difference is in terms of the way the commission‘s preliminary report laid it out and the way the head of the fire department and the police department viewed it? 

THOMPSON:  Well I think we have to be careful not to ascribe any failures on September 11 to rivalry or competition between the police and fire department.  That was one of the themes at today‘s hearing that I think was laid to rest.  There‘s no doubt that the radios that were used on that rescue effort often failed.  They were old radios.  They didn‘t allow the point-to-point contact that you needed and they labored under the problems of the building collapsing and the building systems being torn asunder. 

And the repeater system that was supposed to be let the radios go up to the top floors of the towers either wasn‘t working or worked intermittently or somebody didn‘t press the second button.  They now have, the current commissioner Ray Kelly told us, radios that not only work through all of that, they believe, but let police talk to fire and that would be a vast improvement. 

ABRAMS:  The former fire department commissioner Thomas Von Essen after testifying seemed very irritated at the idea that Commissioner Lehman had suggested that the command and control of the city‘s public service is a scandal.  This is what he said. 


VON ESSEN:  I thought it was despicable it refer to some of the problems that we had as being scandalous.  There was no reason for it.  We‘ve handled thousands of emergencies every day.  Why these protocol issues are still questioned two and a half years after September 11, two years after, I don‘t know the answer to that. 


ABRAMS:  Governor, how do you respond to that? 

THOMPSON:  Well I will say two things.  First of all, if those had been my answers I wouldn‘t use either the word scandalous or the word despicable, but I will let Commissioner Lehman and the fire commissioner fight that out if they want to continue.  Secondly, I think that the radio use is much improved today and I think that—you don‘t want to get into the blame game here.  What we need to do is learn the lessons of 9/11 and take steps for the future that lessen the odds of this happening again. 

That‘s the important part of our work.  We‘re not looking around in hindsight.  We don‘t want to judge people who operated under much different conditions than we did sitting at the rostrum today.  These were people who were responding to the most horrific incident in the nation‘s history and they did the best they could of that I am sure.  So, we need to learn the lessons rather than cast around for villains here. 

ABRAMS:  But won‘t your report have to in the process of talking about what needs to be changed and what needs to be better effectively say, this person in the past, could have, should have, done this better? 

THOMPSON:  I think it‘s going to be very difficult to say that without getting into the blame game.  The truth is that mistakes were made at the national level, at the local level, in two administrations, maybe in three administrations.  The American people had a system of intelligence gathering and intelligence dissemination that was not sufficient to alert us to dangers and may have allowed the plot to succeed where possibly, very possibly, it could have been prevented, but it doesn‘t do us any good to go down...


THOMPSON:  ... that path, I think. 

ABRAMS:  All right, let me bring in Richard Ben-Veniste...


ABRAMS:  ... who was chief of the Watergate Task Force and chief counsel for the Senate Whitewater Committee and he‘s also one of the commissioners.  He joins us now.  Thanks a lot.  I‘m going—let me...


ABRAMS:  ... play a quick piece of sound between when you were talking with the former director of New York City‘s Office of Emergency Management.  Let‘s listen.


RICHARD SHEIRER, FMR. DIR. NYC OFFICE OF EMERGENCY MGMT.:  In a post-9/11 world with the prospect of having these types of events of this magnitude—I don‘t believe any time in our history that we have three five-alarm fires plus additional two-alarm fire in a 16-acre area with tens of thousands of people calling not only from within the complex but from miles and miles away.  I don‘t know if there is any communication system in existence that could handle that kind of activity. 

UNIDENTIFIED MALE:  Well Mr. Sheirer...


UNIDENTIFIED MALE:  ... it could be worse.  It could be worse in the future. 


ABRAMS:  Mr. Ben-Veniste, that seems to have been a theme, is that many of the former commissioners and former directors were saying, look, we did the best we could and you can‘t expect perfection. 

RICHARD BEN-VENISTE, 9/11 COMMISSIONER:  Well, let me first say that I agree with what Jim Thompson said before.  We‘re trying to look forward here.  But we also have the obligation and we will fulfill that obligation to provide a definitive, I hope, account of the events leading up to 9/11 and the events of the day of that horrible catastrophe.  And so what I was talking about there was the question of how in the future we communicate better.  We were talking, I believe, about the 911 system in New York City. 

And that 911 system is the number that individuals called at that time and people who were trapped in the building.  They gave information, but they also wanted information.  911 operators didn‘t have any information to give them.  And one of the things we hope to do is to make that system an interactive system in times of great emergency, as we saw at nine—on September 11. 

ABRAMS:  Has the commission put together a list of questions for these al Qaeda leaders?  I mean I know that there had been a lot of back and forth about the commission getting an opportunity to at least pose certain questions to some of the top-level al Qaeda leaders who are in American custody.  Have those questions been prepared and have any of them been answered? 

BEN-VENISTE:  Yes, long ago they were prepared.  We‘ve been negotiating about this for probably six months before we finally got the administration to agree.  And we have an extraordinary task force devoted just to the question of the al Qaeda plot.  They are immersed in those details.  They have as much information as any federal agency at this point. 

ABRAMS:  So you do have the answers, correct? 

BEN-VENISTE:  We don‘t have all of the answers, but your question was were we prepared with the questions.  The questions have long been prepared and finished. 

ABRAMS:  OK, well...

BEN-VENISTE:  There‘s follow-up, obviously. 

ABRAMS:  Right.

BEN-VENISTE:  When you have a question, you get an answer, then you‘re going to want to ask the next question.  Because we do not have direct access to those individuals, we‘ve got to proceed in fits and starts. 

ABRAMS:  Understood.  All right, 9/11 commissioners, former Governor James Thompson and Richard Ben-Veniste, thank you so much for taking the time to come on the program.  Appreciate it.

THOMPSON:  Thank you. 

BEN-VENISTE:  Thank you. 

ABRAMS:  Coming up, a family leaves New York for Colorado after 9/11. 

They want to get away from it all.  Now that was the scene of their car.  The whole family has died after a highway girder collapsed an hour after the Highway Department had been warned about the very girder. 


ABRAMS:  We‘re back.  The first court-martial in the alleged prison abuse scandal at Abu Ghraib prison begins tomorrow.  Specialist Jeremy Sivits is expected to plead guilty to charges of conspiracy, dereliction of duty, and maltreatment.  Tonight families of the military police company at the center of the scandal holding a prayer vigil for all of the accused soldiers. 

NBC‘s David Shuster is live in Cumberland, Maryland, where the vigil is getting underway.  So David, are they there to basically say these soldiers have been treated unfairly? 

DAVID SHUSTER, NBC NEWS CORRESPONDENT:  Well, Dan, they‘re not really sure, but they‘re here just to show support for the entire unit.  There‘s a deep sense of patriotism in this town of Cumberland, Maryland.  George Washington (UNINTELLIGIBLE) some troops here.  There are some 500 members of the Vietnam Veterans Association including some of these guys at the Color Guard.  They say they‘re basically here just to show support.  They want the facts to come out. 

The families that are here believe that these particular M.P.s are being railroaded.  That they were not trained for this sort of duty in Iraq, but nonetheless, this is just a general show of support.  A lot of people, Dan, pointing out that there are more than 140 members of this unit that are serving in Iraq.  You are only talking about seven that are being court-martialed.  So, again, it‘s just a show of solidarity with the entire unit. 

ABRAMS:  All right.  David Shuster thanks.  You can see more of David‘s report on “HARDBALL” coming up in about an hour. 

A young family leaves New York in the wake of 9/11.  New questions today about why they all died when a highway girder collapsed, killing the whole family.  And get this, it was just an hour after a 911 caller warned authorities about a buckling beam. 

Laura Herosa (ph) of NBC affiliate KUSA has more.


UNIDENTIFIED REPORTER:  (voice-over):  A horrifying scene from Saturday morning.  A 40-ton, 100-foot-long steel girder dropped from an overpass just as the Post family‘s SUV drove under, killing William Post, his pregnant wife Anita and their 2-year-old daughter Koby.  Now comes word of a detailed warning more than an hour before the accident in a call to 911.

CALLER:  It looks like they hung a new I-beam girder in the last couple of days.  Well, it‘s rolled and it looks like it‘s structurally unsafe over the freeway.

DISPATCHER:  So, is the sign actually hanging down?

CALLER:  Well, it‘s rolled toward the existing bridge a good two or three feet.

UNIDENTIFIED REPORTER:  The dispatcher calls the Colorado Department of Transportation to take a look.  The road crew fixes a damaged sign and does not notice the structural problems.  An hour later, the girder collapsed. 


ABRAMS:  (UNINTELLIGIBLE) what a horrible story.  KUSA‘s Laura Herosa (ph), thank you. 

So what kind of investigation?  How are they going to figure out sort of exactly how this happened?  Joining me, someone who knows exactly how they‘re going to do it, former National Transportation Safety Board Chairman Jim Hall.  Thanks very much for coming on the program.  Appreciate it.

JIM HALL, FMR. NTSB CHAIRMAN:  Good evening, Dan. 

ABRAMS:  All right, so what‘s the first step here?  I mean you know you hear this 911 tape.  There‘s a guy calling in basically warning about this.  How important is that in the investigation? 

HALL:  Well, the team of investigators from the NTSB will obviously look at the emergency response, the training of the individuals who responded, as well as the bridge construction and what may have led to this horrible tragedy. 

ABRAMS:  In the wake of things like this, do people lose jobs?  Are there—you know you‘ve got to believe—is there a level of blame that the NTSB in its report says this person should have done this, this person should have done that and didn‘t? 

HALL:  Well, the NTSB very similar to the—you know it‘s the permanent 9/11 commission that we have...


HALL:  ... over transportation safety and we don‘t look at blame.  We do look for causes.  And there will be specific recommendations that are probably made as a result of this tragedy.  But very similar to an autopsy, it‘s very important that we look at all of the factors so that we can prevent this from recurring.  There are thousands of these overpasses, as you know, Dan across our interstate system in the United States. 

ABRAMS:  Have you seen this kind of incident before where literally the whole thing seems to come down? 

HALL:  We‘ve seen some bridge collapses.  Several accidents while I was chairman were as a result of, you know, 18-wheelers or large vehicles going into the bridge supports and bringing the bridge down.  This a little unusual with the—you know obviously some sort of construction failure, which is significant, and also significant the individual that was a caller in this situation you know provided a great deal of information and exactly how that information was processed, what type of inspection took place, you know, I think those are all going to be critical elements for the investigators, the NTSB, to look at. 

ABRAMS:  All right, Jim Hall thanks very much.  We appreciate it.

HALL:  Thank you very much Dan. 

ABRAMS:  Coming up, can Arnold terminate a bobblehead that looks, well, certainly appears to be him?  He‘s suing. 

And your response to our story on high school teachers directing their students to the Web video of the beheading of Nicholas Berg. 

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


ABRAMS:  We‘re back.  He certainly has one of the most recognizable faces in the world.  For more than 30 years, we‘ve seen him in on television and in movies as a bodybuilder, an actor and now a governor.  That wasn‘t a very good imitation.  So, it comes as no surprise that the makers of Bosley Bobbers wanted to create a bobblehead doll featuring Schwarzenegger‘s likeness.  The company sells dozens of bobblehead dolls featuring prominent politicians like John Kerry, Howard Dean, Wesley Clark. 

They also sell celebrity bobblehead dolls.  One of their biggest sellers apparently is Jesus Christ.  But when attorneys for the governor found out about the Schwarzenegger doll they immediately contacted the company and insisted they stop manufacturing and selling them.  Schwarzenegger‘s attorneys claim the dolls violate the governor‘s right to his image.  It‘s the first time a politician whose likeness was used for a bobblehead ever objected to a doll.

Last week attorneys for Schwarzenegger filed a lawsuit seeking damages and an injunction against the company claiming, defendants have misappropriated valuable publicity rights and the resulting success and popularity of Schwarzenegger by illegally using his name, photograph, and likeness for commercial purposes.

Todd Bosley is the president of Ohio Discount Merchandise, the makers of the bobbleheads.  He says the dolls are meant as a political parody and are therefore protected by the First Amendment.  That‘s him and he joins me now.

Thanks a lot for coming on the program.


ABRAMS:  All right.  So let‘s understand—when it comes to celebrity bobbleheads as opposed to political bobbleheads, do you pay the celebrities to make the bobbleheads? 

BOSLEY:  Yes.  What we do, we obtain a license, which is a right to manufacture that particular character or individual.  And then we pay a royalty to either their estate or to the person or character of their self. 

ABRAMS:  And for politicians you don‘t? 

BOSLEY:  No, politicians we do not.  We believe that they‘re part of the public domain and that we are able to produce those without any royalties. 

ABRAMS:  All right.  So that‘s why Schwarzenegger gets into sort of a gray area.  Now, you would concede that Schwarzenegger is certainly a celebrity, right? 

BOSLEY:  He is a celebrity, yes. 

ABRAMS:  And so what is the argument for not...

BOSLEY:  He‘s also a governor...


BOSLEY:  ... a politician. 

ABRAMS:  Yes, that‘s what I figured the answer would be.  Let me read to you from a comment—look at that thing.  It‘s almost like you can‘t stop watching it.  It‘s almost mesmerizing.  All right. 

The attorneys—Arnold‘s attorneys say, this is clearly a commercial use of our client by the people who produce the bobblehead.  Legally you can‘t exploit someone for commercial use.  This is not political speech.  We asked them to stop doing it and they didn‘t.

Any dispute that they asked to you stop doing it? 

BOSLEY:  I guess it would just be the manner in which they asked.  It wasn‘t very pleasant. 

ABRAMS:  What did they say? 

BOSLEY:  It was cease and desist.  Send the remaining inventory to the attorney and pay a large sum of money or we would be sued.

ABRAMS:  How big a company do you have? 

BOSLEY:  We‘re a little company.  My brother and I started it out of my basement about five years ago, founded it on a credit card.  We have six employees.  We‘re not very big. 

ABRAMS:  How much money do you make a year, if you don‘t mind my asking? 

BOSLEY:  Well not very much, but very little.  Our sales are under $1 million a year. 

ABRAMS:  OK.  And you really do these as kind of novelty items, sort of, you know have a good time, et cetera? 

BOSLEY:  Yes, the dolls that you featured, the Howard Dean, Wesley Clark, Arnold Schwarzenegger, those were all done for the Christian & Sarcoma Fund.  We actually made these as a fundraiser for the cancer charity. 

ABRAMS:  And then people buy them and you donated the money?

BOSLEY:  Right. 

ABRAMS:  What is your worst selling doll?  Of all the dolls you have, which doll has sold the least of all the dolls you have?

BOSLEY:  You know it‘s kind of surprising.  When we brought out a few of the politicians, we didn‘t think they would sell very well.  Flash Gordon has been kind of a disappointment, believe it or not, and we thought he would be a very good seller for us.  So in our business, you kind of just have to make it and see if it sells. 

ABRAMS:  So Flash Gordon just not doing the kind of business...

BOSLEY:  No...

ABRAMS:  ... you would expect (UNINTELLIGIBLE).


ABRAMS:  All right.  You know what?  Stick around...


ABRAMS:  ... for a minute because I want to—by the way, if you want to make a bobblehead, you know, of me, I‘m...

BOSLEY:  I think that would be a great idea. 


ABRAMS:  All right.  So what‘s the law?  Joining me now to discuss is UCLA law professor Eugene Volokh.  He‘s been on this program before. 

Professor thanks for coming back. 


ABRAMS:  All right.  So you know this is sort of one of those gray areas.  He was—you know, Mr. Bosley points out they pay celebrities.  They don‘t pay politicians.  Are they going to have to pay Arnold Schwarzenegger? 

VOLOKH:  Well the answer is probably yes, although maybe he won‘t let them do it even if they do pay him.  The law does not distinguish between politicians and say sports figures.  One of the leading cases in this area involved a bust of the late Martin Luther King Jr., who while he did not have elected office, was certainly a political leader.  And in that case the Georgia Supreme Court held that the King estate had the exclusive right to authorize bust of Martin Luther King.

Rather, the gray area is whether this is a—just a plain use of somebody‘s likeness, just basically like a bust or just his appearance, or is it a transformative use?  Does it really add something new? 


VOLOKH:  And that‘s where the parody argument might come in. 

ABRAMS:  Yes, that‘s what I was going to ask you about.  Go ahead.

VOLOKH:  Now, so if this were clearly a parody, if it were—if it had a pretty clear negative commentary or even positive commentary but something more than, hey, here‘s Arnold, then in that case it probably would be legally permissible for them to put it out without permission from the—from Arnold and it would also be constitutionally protected. 


VOLOKH:  On the other hand, it‘s not an obvious case for parody in part because while they show him say with bandolier and a weapon, you know, that‘s actually pretty close to his actual movie persona....

ABRAMS:  Right.

VOLOKH:  ... so it looks like kind of a straight out depiction, albeit in a bobblehead. 

ABRAMS:  Let me read you what Mr. Bosley‘s attorney says in his papers. 

I believe very strongly that under California law and the First Amendment the Bosley brothers have a clear right to sell dolls that are caricatures and parodies of political figures, including a politician who happens to be a Hollywood star.  I am aware of no single case where a sitting politician has successfully sued someone to stop political commentary parody or satire aimed at that politician.

It sounds like what you are saying, Professor, is that it may not be commentary, parody or satire. 

VOLOKH:  Yes, I think that‘s a nice argument.  I just wouldn‘t put the word clear in there.  They‘re probably trying to be objective about the subject.  Of course the lawyer doesn‘t need to be objective about it.  I think it‘s a nice argument.  I hope he wins.  I think the right of publicity—this area is what this area is called—has gotten really too big recently and I hope the courts can trim it down in cases like this.  But I think the reason we don‘t know—we don‘t see many cases where politicians are sued isn‘t legal, but political.  Many politicians probably think it‘s a bad idea to sue.  It makes them look a little humorless.  It makes them look...

ABRAMS:  And they‘re probably happy for the P.R., right?

VOLOKH:  Exactly.  And many of them figure, hey, this is a sign that people like me.  This helps boost my image and such.  So, in fact, it‘s been very rarely the case that politicians have sued. 


VOLOKH:  My understanding—I‘m not sure if it came to a lawsuit—but the last person that I heard threatening a suit or something like this was actually Jesse Ventura, another celebrity turned governor.  So I think what often happens is a lot of celebrities if they go into politics they‘re just more sensitized to these kind of legal issues. 

ABRAMS:  Let me ask Mr. Bosley.  What happened with Jesse Ventura?

BOSLEY:  You know I don‘t know. 

ABRAMS:  OK, because you made a bobblehead, right? 

BOSLEY:  I‘m not aware of that. 

ABRAMS:  Oh...

BOSLEY:  I don‘t know.


VOLOKH:  No, I‘m sorry, it wasn‘t...


VOLOKH:  ... it wasn‘t involving the Bosleys.  It was involving action figures put out by someone else. 

ABRAMS:  OK, because I was showing just there a bobblehead of—isn‘t that a bobblehead of Jesse—no, I guess maybe it‘s not a bobblehead.  The head is not bobbling.  All right, I take that back.  There is no bobble in the head.  So it is possible that those are different.  OK...

BOSLEY:  Right.

ABRAMS:  Let‘s take those off the screen.  Those are not bobbleheads.  OK.  Let me read you another, Professor, one more, this from the other side in this and this is from the plaintiff, it‘s from Arnold Schwarzenegger‘s side. 

Defendants were aware that the express permission of Schwarzenegger was required to be obtained prior to be using the name, photograph or likeness of Schwarzenegger on the product, packaging and advertising, marketing promotion and sales thereof.  It goes on to say the product and packaging was grossly misleading and deceptive to the public because it appears that Schwarzenegger agreed to permit the use of Schwarzenegger‘s name, photograph and likeness.

VOLOKH:  Yes, this shows there are actually two kinds of claims in this lawsuit.  One is, you can‘t use my name, period, no ifs, ands or buts.  The other is you can‘t mislead the public and by using, excuse me, not my name, but my image you are making the public think that I endorsed it.  The second claim is I think is a little weaker because I think a lot of people when they see a bobblehead especially of a politician don‘t necessarily think that it‘s being endorsed.  But there are these two different kinds of claims and obviously the plaintiffs figure two claims are better than one, so they‘re suing under both.

ABRAMS:  Mr. Bosley, final question.  Who is next up in the factory? 

Who‘s—who are you working on right now? 

BOSLEY:  We‘re actually working on a bunch of different dolls right now.  Our next will be the Pope. 

ABRAMS:  Of course.

BOSLEY:  We‘re going to do that in good taste and we think it will be a big seller. 

ABRAMS:  How do you do a post—a Pope bobblehead in good taste?  I mean honestly.

BOSLEY:  Just check our site


BOSLEY:  ... and you‘ll be able to see it. 

ABRAMS:  Yes, I set myself up for that one. 



ABRAMS:  All right.  Todd Bosley, thank you very much...

BOSLEY:  Thank you.

ABRAMS:  ... for coming on the program and Professor Volokh, thanks a lot for coming on.  Appreciate it.

VOLOKH:  Thank you. 


When we return, my “Closing Argument”—why the radicals in the Middle East are once again hijacking the peace process.  And your response to my comments when I defended the activist judges who decided Brown v.  Board of Education...


ABRAMS:  Coming up, how the radical Israelis and Palestinians continue to hijack the peace process.  It‘s my “Closing Argument” coming up.


ABRAMS:  My “Closing Argument”—how the radical Israelis and Palestinians continue to hijack the peace process.  After Israeli Prime Minister Ariel Sharon announced that he would dismantle all settlements in the Gaza Strip both sides went ballistic.  First, Sharon‘s own Likud Party rejected the effort in a party vote fearing it would be—quote—“giving into the terrorists.” And now the far right-wingers have taken to the streets over land that is of little consequence to Israel as nation, where 7,500 Jewish settlers live amongst 1.2 million Palestinians. 

But this represents the majority of Israelis.  A hundred and twenty thousand showed up to urge the immediate withdrawal from Gaza.  Almost 80 percent of Israelis support Sharon‘s pullout.  It‘s time for the Israeli government to represent its people, not the fringe settlers, many of whom came from Brooklyn to wreak havoc on the process. 

With that said, unfortunately there have been no large Palestinian support protest and no leading Palestinians were crediting Sharon before the vote that could now end his political career.  Only condemnation from Palestinian leaders who have said the proposal doesn‘t go far enough, that it will legitimize Israel remaining in the West Bank settlements.  You know that‘s when some tobacco members talked about creating a cigarette that would automatically burn itself out to avoid fire hazards. 

Rather than log the effort, many anti-tobacco folks denounced the idea as just another effort to sell cigarettes.  Well, maybe, but that doesn‘t mean it‘s not a good idea.  Israel getting out of Gaza is a good start.  It‘s good for Israel, good for the Palestinians and bad for those who don‘t really want to see any progress in the region and it seems they still hold many of the cards. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night we debated whether three California and two Washington State teachers should have been disciplined for allegedly showing or directing students to the gruesome video of the beheading of American Nick Berg, which is on the Internet.  Lots of reaction on this one.

From Pensacola, Florida, Wade Wasserman.  “I have played some video games that would make the beheading video eligible to run on the Cartoon Network.  And let‘s not forget that some of these seniors in high school will be fighting in the Iraq war in six to 12 months.”

Fourteen-year-old Courtney Gehl from Elmira, New York.  “I think that the teachers should be able to tell the people where to find because it‘s up to them to look.  They can watch it if they want, but they aren‘t being forced to watch it.”

From New York City, Shani S.  “Dan, let me get this straight.  It‘s OK for teenagers to see a violent Schwarzenegger movie or others like “Scream”, “Nightmare on Elm Street”, et cetera, but it‘s not OK for them to see in a history class graphic footage of real life terrorism?  That‘s simply ignorant.  I believe kids should be given the opportunity or choice to see what‘s really going on in the world because the fact is no one can shield them from reality.”

But Twinnette Andrews in Vistula (ph), California writes.  “Some teachers fail to respect a parent‘s right to decide what‘s best for their child.  High school is no exception, because that is a critical emotional time for some.”

From Glen Burnie, Maryland, Terry Hart.  “These are children and will become hardened to life soon enough without you forcing the brutal realities on them at an early age and I may add impressionable age.”

Also last night my “Closing Argument”—the landmark Supreme Court case of Brown v. Board of Education was a major development in the way the justices evaluate cases.  That this was a unanimous opinion of an activist court and I said while I‘ve criticized some judges for going too far, when it comes to fundamental rights sometimes only a—quote—“activist” court will make the tough and brave decisions that politicians can‘t or won‘t. 

Brian Whalen in Baltimore.  “It goes without saying that Brown v.  Board of Education was a morally sound decision by the justices, but does that really mean you want judicial activism?  Once you let that genie out of our bottle then you will be forced to accept not just positive activism, with which you agreed, but also negative, with which you disagree.”

True, Brian, but if you agree it was morally sound and you think they did the right thing, then you must accept that judicial activism can be a really good thing.  Same thing applied when it came to interracial marriages and a lot of other important rights. 

John Conradis in Chevy Chase, Maryland.  “With the Pickering nomination, excuse me, you argued for moderation in our judicial system.  With the celebration of Brown v. Board of Education you argue for activism in our judicial system.  In 2000, an activist Supreme Court made a momentous decision that many people like a lot less than Brown v. Board of Education.  Whose activism is good?  Whose bad?”

First there‘s nothing inconsistent with me saying that President Bush‘s choices for the bench should be moderate conservatives and saying that some judicial activism is OK. 

And Patty Dadamo in Aliso Viejo, California.  “Hey Dan, your online fan club Blue Earth has a question about Pfc. Lynndie England.  Why does she have civilian attorneys including the one who walked off the show last night and not a lawyer from JAG?  Thanks.”

It‘s a good question Patty.  Pfc. England has the right to hire a civilian attorney, although an Army JAG is available to her for free.  Now, why would she have done it?  Well sometimes because civilian lawyers are more experienced.  Sometimes they are concerned about the ability of JAGs to freely attack the prosecution with guns blazing.  Civil attorneys don‘t have to worry about upsetting officers higher in the chain of command. 

Thanks Patty and thanks to all of you (UNINTELLIGIBLE).  I really do appreciate all of your support. 

That‘s it for this edition of the program.  That‘s the address to write if you write into the program.  See you tomorrow.

“HARDBALL” up next.  Thanks for watching.


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