Guest: Jonathan Zittrain, Michael Curtin, John Ellsworth, Pam Bondi, David Wahl, Larry Pratt, Barry Steinhardt, Jan Ting
DAN ABRAMS, HOST: Coming up: Terrorists in Iraq kill at least 15 Americans in the deadliest single attack on U.S. troops since the war began. A radical Islamic group claims responsibility for the attack that ripped through a mess tent as hundreds of soldiers ate lunch.
And the father of a Marine killed in Iraq fights to read his son‘s e-mail, but Yahoo! says its e-mail accounts are private and won‘t open the account to the family. We debate.
Plus, a new anti-terror law calls for national standards for driver‘s licenses. Critics on the left and the right say a national ID could become an invasion of privacy. But if the goal is just to standardize the system nationally and to prevent fakes, isn‘t it a good idea?
The program about justice starts now.
First on the docket tonight, the deadliest single incident for U.S. troops since the start of the war in Iraq. At least two dozen people, including 15 U.S. soldiers, killed during an explosion in a dining hall at a U.S. base in Mosul. Army officials are looking into whether it was the work of a suicide bomber. NBC‘s Tracie Potts has more.
(BEGIN VIDEO CLIP)
TRACIE POTTS, NBC CORRESPONDENT (voice-over): What‘s believed to be a rocket exploded in a tent at a U.S. military base in Mosul. Soldiers, contractors and Iraqis were eating lunch when it happened. Richmond newspaper reporter Jerry Redmon was there.
JEREMY REDMON, “RICHMOND TIMES DISPATCH: Several medics had showed up and set up an area where they were working on the soldiers in the parking lot. It was really sort of a sea of wounded and dead. There were people crying. There were folks that were numb, that collapsed in grief.
POTTS: More than 20 were killed. Three times that many were wounded.
GEORGE WALKER BUSH, PRESIDENT OF THE UNITED STATES: We send our heartfelt condolences to the loved ones who suffer today. We just want them to know that the mission—it‘s a vital mission for peace.
POTTS: Many of the soldiers at the base were from Maine, Virginia and Fort Lewis, Washington, where families are now awaiting news.
LT. COL. BILL COSTELLO, FT. LEWIS, WASHINGTON: There are families affected in the Washington state area who are not going to welcome home a dad or a brother or a son once the deployment‘s over. So it does hurt.
POTTS: A militant Sunni Muslim group claimed responsibility on line. One Mideast expert says they‘re trying to scare their own people from voting in January.
UNIDENTIFIED MALE: Well, they are attacking American installations just to send a message to the population of the city that, No one can protect you. And therefore, their message is, Do not go and vote.
POTTS: But with young soldiers now dying in their own camps, Americans are troubled. A new “Washington Post” poll finds a majority of Americans, 56 percent, now believe the war isn‘t worth it. Tracie Potts, NBC News, Washington.
(END VIDEOTAPE)
ABRAMS: Now to a story about one family that can relate to losing a loved one and a soldier. Twenty-year-old Lance Corporal Justin Ellsworth, a Marine in Iraq, was killed by a roadside bomb in November. Throughout his tour of duty, he sent e-mails to his family and friends, letting them know he was OK, telling them what he missed about being home, wishing them a happy Halloween.
Now that Justin is gone, his family wants to save his incoming and outgoing e-mails. They say it‘s their only way to hold onto the last words of their son. Sounds like a reasonable request from a mourning family. But there‘s a problem. Justin used Yahoo! as his e-mail provider, which protects access to his account with a password, one his parents don‘t know and haven‘t been able to figure out. And when Corporal Ellsworth signed up for an e-mail address, he agreed to Yahoo!‘s terms of service, which clearly explain that all accounts are terminated upon death. So far, Yahoo! has refused to give his parents access to their son‘s account, and the Ellsworths they say they are fighting a race against time because Yahoo! terminates all accounts left inactive after 90 days.
“My Take”—I can‘t even imagine what this family is going through. This has got to be so difficult for them. And in almost any case, I‘d want to give them just about anything that they want. My concern is that I‘m not convinced that we know what their son would have wanted. If there‘s any indication he would have been OK with this, that he wanted this, then I say give them access. But absent that, who knows what he wrote in those personal e-mails about his parents, for example?
What we know for a fact is that Lance Corporal Ellsworth signed an agreement with Yahoo!, where he agreed that his account would be destroyed. Maybe he relied on that. We‘re going to talk with Ellsworth‘s father in a moment, but first, joining me to debate is estate law attorney, Michael Curtin, and Harvard law professor and expert on Internet law Jonathan Zittrain.
Gentlemen, thank you very much for coming on the program.
JONATHAN ZITTRAIN, HARVARD LAW SCHOOL PROFESSOR: Thank you.
ABRAMS: Appreciate it. All right, Mr. Curtain, what am I—am I getting something wrong here? I mean, it seems to me that this is a horrible, horrible case, but the bottom line is that we don‘t know what this young soldier would have wanted.
MICHAEL CURTIN, ESTATE LAW ATTORNEY: That‘s right, we really don‘t know. But what we‘re talking about is basically a property right, in my view. And it would seem to me that the next of kin—in this case, the corporal‘s father—has the legal authority through the probate court or the family court in Michigan to be the spokesperson for the estate, the executor or the personal representative. And he is seeking to establish a property right. It‘s no different than if it was a printed manuscript, if it was a bank account or anything else.
ABRAMS: All right, you know what I want to do? John Ellsworth, the father of Justin Ellsworth, has just been able to join us. So why don‘t we continue with this debate in a moment. I want to get right to Mr. Ellsworth.
Mr. Ellsworth, thank you very much...
JOHN ELLSWORTH, WANTS ACCESS TO HIS SON‘S EMAIL: Thank you.
ABRAMS: ... for taking the time to come on the program.
ELLSWORTH: Thank you for having me.
ABRAMS: All right. So tell us what you‘ve been doing and what Yahoo! has been saying to you so far.
ELLSWORTH: Well, basically, we‘re at a stalemate with Yahoo! There‘s, obviously, their policies that they want to follow, and I can appreciate that. However, in this case, this particular case, we also have word from Justin where we were saving the e-mails. He was going to forward those to me, and we were going to save them in a book. We actually have corresponded e-mails back and forth that can state that. And that‘s kind of where it stands.
When I called Yahoo!, I talked to customer service and then their legal department, and they are steadfast in their position that the policy stands. And so I‘m running out of time.
ABRAMS: What do you say to the concern that we don‘t know sort of what your son would have wanted, that maybe he had written things about his family or his friends that might be something that, even upon death, he wouldn‘t want someone to read? Do you have any indication that he wanted - - he would have wanted it this way?
ELLSWORTH: Actually, I do. Like I said, we‘ve exchanged e-mails stating that, you know, we were going to print those out. And actually, we had joked back and forth that when he got out, we were going to print those in a manuscript and sell it as a book and make millions. But obviously, that‘s not my concern right now.
My concern is keeping these e-mails for his brothers and sisters, to make sure that they have an accurate account of just who their brother was. And as far as if I‘m concerned about things, you know, for years we‘ve written letters from, you know, the front, and we have books from letters from the front. And it‘s been no different than the U.S. Postal Service. Now, because we have them in cyberspace, I‘m just trying to retrieve the letters that are out there. It‘s no different than the United States Postal Service. However, the United States Postal Service will forward them to the next of kin.
ABRAMS: But is there a difference, in that you‘re going to get access to everything that he‘s written? I mean, as opposed to with the Postal Service, you‘re just asking for letters, for example, that have been written to particular people.
ABRAMS: No, actually, the Postal Service will turn over all his mail, including unopened letters that he has received because they are part of his property.
ABRAMS: Received or written?
ELLSWORTH: Both, because they are part of his property. I will get all his personal property. The problem I‘m having is, obviously, the e-mails I cannot retrieve because it‘s from a third party, which is Yahoo! in this case.
ABRAMS: Is there any way that they‘ve told you that maybe they can sort it out, where, you know, you could get access to any interchanges between you or anything that he had written, as opposed to what other people had written to him? I mean, is there any sort of deal that Yahoo! seems willing to work out with you here?
ELLSWORTH: At this point, there really has been no deal-making. We haven‘t had any real conversation, other than they‘ve been really steadfast it‘s a policy that they will not release any e-mails once the person has passed on, that they are destroyed after a certain inactive period.
ABRAMS: How are you holding up in general?
ELLSWORTH: It‘s rough. We went through a lot of things. The community outpouring has been wonderful. The United States Marines are behind us. They‘re behind us in this venture, as well. They feel—in fact, I saw a comment from the commandant of the Marine Corps, said, Lookit, they‘re no better than the United States mail. We would forward on that United States mail. And to me, that made me feel a little bit better that I am fighting the right battles.
ABRAMS: Sir, good luck to you in whatever you choose to do. You know, we can sit here and have a technical debate, a legal debate in my next block, but you know, that doesn‘t—that doesn‘t answer the questions that you‘ve got to deal with, and your desires. So thanks very much.
ELLSWORTH: Thank you very much.
ABRAMS: I appreciate it.
ELLSWORTH: Thank you very much.
ABRAMS: All right, coming up, we are going to have that debate, as the question of does Yahoo! still have an obligation to protect Justin‘s privacy? Some say yes. We‘ll finish our debate in a minute.
And a familiar defense comes to light today in the Robert Blake case, as attorneys telling jurors there‘s no evidence, and instead, they blame the LAPD for comprising the investigation. I‘ve heard that.
Plus, the ACLU and the Gun Owners of America teaming up to fight against a national driver‘s license. We‘ll debate that.
Your e-mail, abramsreport@msnbc.com. Please include your name, where you‘re writing from. I‘ll respond at the end of the show.
(COMMERCIAL BREAK)
ABRAMS: We just heard from a man fighting for access to his son‘s e-mail after the 20-year-old was killed in Iraq. Justin Ellsworth‘s family wants to hold onto his last words and thoughts. Obviously, they‘re not going to get another e-mail from him. The problem: Justin agreed to Yahoo!‘s terms of service when he created his e-mail account, and those terms guaranteed his personal files would never be turned over, even after he died.
All right, joining me once again to debate is estate law attorney Michael Curtin and Harvard law professor and expert on Internet law Jonathan Zittrain.
Professor Zittrain, it is a sympathetic position that the father has, but again, it seems to me that they have a difficult argument here, in that the son signed a document which is pretty clear.
ZITTRAIN: Well, Dan, I think you‘re absolutely right. And as you hear Mr. Ellsworth tell his story, your heart goes out to him. I mean, it would clearly make the world a better place to be able to turn this e-mail over. But I think we have here a great example of the law of unintended consequences, and I think Yahoo! finds itself, through its own terms, boxed in a corner. It really can‘t release this e-mail without running into trouble possibly with the Federal Trade Commission, with others that try to keep an eye on privacy policies and say, If this is your policy, you have to adhere to it.
ABRAMS: What if they can show—and I asked him about the intent of his son. What if they can show that his son intended that all of these e-mails be saved and that his father have access to them? Could that change anything?
ZITTRAIN: Well, it might prospectively change things. I think probably they‘re huddled at Yahoo! right now, trying to figure out how in the future to write a policy that maybe permits somebody to check a box or to otherwise indicate that they‘d like to have this sort of thing happen if something terrible should befall them. People really do plan for these kinds of eventualities.
But retrospectively, I still think they‘re stuck. Any e-mail they might have from Justin to other people, talking about it is just—it‘s sort of outside evidence. It‘s not a direct instruction to Yahoo!...
ABRAMS: Yes.
ZITTRAIN: ... to waive that aspect of the policy.
ABRAMS: Here‘s what he agreed to when he created his e-mail account. “You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or content within your account terminates upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.”
I don‘t—I just—Mr. Curtin, I don‘t see how they get around this.
CURTIN: Well, first of all, you just quoted, Dan, that “may be terminated.” They didn‘t say that it would be terminated.
ABRAMS: The first part says the contents—“any rights to your ID or contents within your account terminates upon your death.”
ELLSWORTH: That‘s right. They terminate as to him, but it is a property right, and if there is somebody who steps up not with a power of attorney necessarily but with legal authority, whether it‘s given by the probate court or the family court, that, in this case, Justin‘s dad has ostensibly the legal authority to obtain this. If they were hard copy and not on a computer disk or not on—in his hard drive, there‘d be no question it would be a hard copy...
ABRAMS: Right.
CURTIN: ... which he would be entitled to pick up.
ABRAMS: It says non-transferable, right?
CURTIN: That‘s right. But now, remember, the person with the legal authority—in this case, Justin‘s dad—he can modify that term. I don‘t understand how Yahoo! feels somehow they are exposed to Justin and or his family, when the person with the legal authority to say, If that‘s what you think the contract says, then we are here as his legal representative, wanting to modify that contract.
ABRAMS: What about that, Professor Zittrain?
ZITTRAIN: Well, again, I think Michael speaks sensibly. He sort of has equity on his side here. And there may be a little bit of wiggle room with that word “may” that was in the clause that was just up on everyone‘s screen.
But again, the fact is, I‘m sure Yahoo! wants to do the right thing. They‘ve got two big worries. One worry is the worry that you said at the very beginning, Dan, that it‘s not clear what Justin would have wanted. It‘s just not something they can assume one way or the other, and in an abundance of caution, they might have to hold back. And the other big worry is that they will run afoul of the privacy advocates and those government authorities that are enforced independently with enforcing privacy rights.
ABRAMS: Professor, is it true that if it had been the Post Office, they would be able to get all of his letters, both the ones that had been sent to him, unsent, ones he‘s received, et cetera, anything that he had written or received from the Post Office, even if it was still in the hands of the Post Office, would be the property of his parents?
ZITTRAIN: Well, I‘m not sure even he would have been able to go to the Post Office and retrieve mail that he himself had entered into the stream of the Postal Service. What the postal analogy really says to me that might be instructive here is that Yahoo! might choose to put what they call a “bounce message” on his account, so people prospectively writing to him will get back a message that says, Please write to the following address to reach Justin‘s father. We have some awful news to tell you. And it also suggests that Justin‘s father can be in touch with everybody who had, in turn, been in touch with Justin and ask for the copies of the mail that were in their outbox aimed at Justin and the mail that came from Justin, and that way, in a distributed fashion, try to put together the scrapbook.
ABRAMS: Mr. Curtin, very quickly (UNINTELLIGIBLE) I know what you think should happen. Do you think that the Ellsworth family is going to win this one?
CURTIN: I think they will. I think that what‘ll happen if there‘s not an agreement worked out with Yahoo!, the family court or the probate court in Michigan is likely to enter an order that I don‘t think Yahoo! will tamper with and will quietly provide what the family wants.
ABRAMS: Tough case, tough case. I want to know—I want to—I want evidence as to what Justin wanted, and that could sway me.
CURTIN: I think you have it. I think his comments, I want to put a scrapbook together, this is my life, and I want this history preserved...
ABRAMS: Yes, but...
(CROSSTALK)
ABRAMS: I don‘t know that that means every single e-mail he wrote, though. That‘s the problem. But anyway, we shall see. I feel very badly for the family here, regardless, and I certainly, as I said before, wish them the best. Michael Curtain and Professor Zittrain, thanks very much. Appreciate it.
ZITTRAIN: Thank you.
CURTIN: Thank you, Dan. Thank you, Professor.
ABRAMS: Coming up: Today in court, jurors hear from Robert Blake himself. His lawyer played a TV interview Blake did to prove he had no animosity against his wife, who ended up dead, and in fact, he was trying to mend their relationship when she was killed. You‘ll get a live report from the courthouse.
And officials will soon have 18 months to figure out how to turn every state‘s driver‘s license into one standard piece of ID. But some from the left and the right worry it‘s the first step towards a major invasion of privacy. I don‘t know. I‘m all for it. We‘ll debate.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
GERALD SCHWARTZBACH, ROBERT BLAKE‘S ATTORNEY: The only appropriate verdicts will be not guilty, not guilty, not guilty.
(END VIDEO CLIP)
ABRAMS: Robert Blake‘s attorney says there is no evidence, physical or circumstantial, that the actor fired two shots into his wife‘s head, killing her, more than three years ago, says this is just another case of bad police work by police officers who wanted to get famous. Prosecutors stand by their theory that Blake first tried to get hitmen to kill Bonny Lee Bakley, and then when that didn‘t work out, took matters into his own hands. Today jurors heard from Blake himself but not from the witness stand.
The former “Baretta” star was there in court today for day two of his murder trial, and so was NBC‘s Michael Okwu. So Michael, what did we see? What happened?
MICHAEL OKWU, NBC CORRESPONDENT: Well, a lot happened, Dan. I‘m not sure where to begin, but I suppose that Barbara Walters tape is probably a good place to start. In fact, we did hear from Robert Blake, not in live open court, but a tape, a portion of an interview he did with Barbara Walters played by the defense to demonstrate that even though his marriage was not made in heaven, Robert Blake had reason to try to make it work.
(BEGIN VIDEO CLIP - ABC NEWS “20/20” FEBRUARY 2003)
BARBARA WALTERS, ABC NEWS: You could have gotten divorced.
ROBERT BLAKE, CHARGED WITH MURDERING WIFE: Why?
WALTERS: Yes. But I mean, if things didn‘t work out, you could have gotten divorced.
BLAKE: Why? It‘s about Rosie. From the second I touched Rosie, it‘s all about her. The greatest gift in the world, and I‘m going to try to mess it up by being selfish?
(END VIDEO CLIP)
OKWU: Earlier today, dramatic, dramatic testimony from the first prosecution witness, Sean Stanick. Stanick lived just yards away from where Bonny Lee Bakley was shot on May 4 of 2001. He testified that he saw an ashen-faced, loud Blake knocking on his door on that night, urging him to call 911, saying that his wife was bleeding, that perhaps she had been beaten up. In fact, he did call 911.
Now, we also understand that Stanick said on the stand that he tended to Bonny Lee Bakley, that she was bloodied, but Blake kept a distance. In fact, he was getting sick on the sidewalk from quite some way, letting out loud guttural cries. But according to Stanick, he did not see any tears. At one point, Stanick said on the witness stand—quoting now—“What was unusual was he wasn‘t helping me. I don‘t know why I was the one dealing with this.”
Now, during cross-examination, defense attorney Gerald Schwartzbach was able to get Stanick to talk a little bit more about that 911 call, saying that Blake was urging him, even as he was on the line with emergency operators to try to get help as quickly as possible, the implication very clear, the defense trying to make the point that this is not the way a killer behaves, not somebody who wants to see his wife die.
But perhaps the strongest moment for the defense came earlier in the day, when they made the argument that the police were really rushing to judgment here and looking for a little bit of fame. By coincidence, they were being tailed by a writer who was writing a book on the homicide division, and the theory here is that the police really wanted to get a big fish—Dan.
ABRAMS: Michael Okwu, thanks a lot. Appreciate it. The police wanted a big fish. You know, his wife was killed. It‘s going to be looked at.
Robert Blake‘s attorney tells jurors there is not any evidence to link him to the murder. But you know, we‘re going to talk. We‘re going to show you more of that interview with Blake and ask, Can he really make a case that it was just coincidence that his wife was shot to death in their car, as he just ran back inside that restaurant to get his gun?
And it‘s the most sweeping intelligence reform in almost 50 years, in an effort to make our nation safer from terrorists. But some say creating a national standard for driver‘s licenses opens the door to a national ID card and an invasion of privacy. Is it really that dire? I say no.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP - ABC NEWS “20/20” FEBRUARY 2003)
WALTERS: And that night, the night of her death, your relationship was a good relationship?
BLAKE: Yes.
WALTERS: A friendly relationship?
BLAKE: Yes. We had a lot to talk about because it was a time when her entire family was going to move to Los Angeles and everybody was going to have to get situated someplace. So there was a lot to talk about, but there certainly wasn‘t any down side for me.
(END VIDEO CLIP)
ABRAMS: That‘s not what prosecutors say. Robert Blake makes it sounds as if there was no reason for him to kill his wife. California prosecutors, though, say he shot Bonny Lee Bakley because he hated her and wanted to protect their infant daughter from her and her checkered past. “My Take” again, if Robert Blake didn‘t kill his wife, it sure sounds like someone beat him to it. Talk about motive. To say he was trying to work things out with his wife, I don‘t know, sounds like a long shot to me, considering what he has said on other audiotapes.
Joining me now, prosecutor Pam Bondi and criminal defense attorney David Wahl. David, what am I missing here? I mean, he keeps saying how great everything was with his wife, and yet there are other tapes where he‘s talking about how much he hates her and wants to get rid of her.
DAVID WAHL, CRIMINAL DEFENSE ATTORNEY: Oh, Dan, absolutely. And if you listen to what McLarty (ph), the stunt man, Hambleton, the stunt man, if you listen to Detective Welch (ph), ex-detective Welch, have to say, I mean, Robert Blake described this woman as basically the bride of Satan. I mean, are you kidding me? This was clearly an attempt to manipulate the jury pool, to make the people of this jurisdiction feel that he had nothing against this woman. And I think when you hear the rest of the testimony that‘s forthcoming, it isn‘t going to fly, Dan.
ABRAMS: Let me play a little bit more from the Barbara Walters interview. This is him talking about why he married—I mean, remember, the defense here—actually, can we put up No. 2 here? This is the defense as to the Robert Blake case, all right? There‘s no evidence, they say, physical or circumstantial, linking Blake to his wife‘s murder. Two key witnesses, would-be hitmen Blake supposedly tried to get to kill his wife, they say were drug addicts who suffered hallucinations, didn‘t (ph) cooperate with prosecutor, and they say the LAPD was negligent, mishandled evidence and compromised the investigation.
All right, here‘s what Robert Blake said about why he married Bonny Lee Bakley.
(BEGIN VIDEO CLIP - ABC NEWS “20/20” FEBRUARY 2003)
WALTERS: You married Bonny-
BLAKE: Of course!
WALTERS: ... because you wanted...
BLAKE: Of course!
WALTERS: -- to give the baby...
BLAKE: What‘s the down side? She told me, she said, I‘m either going to be a movie star or I‘m going to marry a movie star. And what‘s the down side? I‘m an old man. I ain‘t got no life. What am I doing, hanging around jazz clubs, sleeping with women I don‘t even know their name? Everybody thought I was crazy. I don‘t care. We had plans. She was going to live in the two-story place to start with, and we were going to kind of get to know each other and go from there.
What did I have to lose? You tell me. God gave me the gift of the century. I always thought my life was a home run. I always thought my life was a home run. And all of a sudden, at the end of the trail, I get to put the ball out of the universe. And I‘m going to complain?
(END VIDEO CLIP)
ABRAMS: Pam Bondi, his position, basically, that he had no reason to want kill his wife.
PAM BONDI, STATE PROSECUTOR: Well, that‘s right, and that‘s what he said to Barbara Walters. However, Dan, you know, we have controlled phone calls, the prosecutors do, that are going to come out, where he calls her a monster, he calls her horrible things, he despises her family. And I anticipate all that coming out at trial. And that‘s really going to contradict his interview with Barbara Walters. I think it‘s going to end up really hurting the defense.
ABRAMS: Dave, what about that, about the fact that he—that they‘re playing these tapes as if they‘re so helpful to the defense case, and it seems like there‘s an obvious response to them, right?
WAHL: Well, Dan, a lot of this initial evidence actually can go either way. As far as I‘m concerned, it‘s a wash. When this first witness, who was on the scene, describes Blake‘s affect when he first arrived—I mean, that can go either way, a distraught elderly man or someone who‘s got something to hide.
But Dan, I‘ll tell you, from a purely defense perspective, I see immediate problems. Shellie Samuels, the DA, comes off as very arrogant, very dismissive, reminds me of Marcia Clark in the ‘95 O.J. Simpson case.
And the second one—Dan, you were at Redwood City. Remember how much sympathy there was for Laci and Conner? Well, for this victim, there is no such sympathy. She was a schemer, a scammer. She was a lonely-hearts perpetrator. And they‘re going to have a huge problem because if the jury‘s on the fence on this one, it could well be that that alone causes them to fall to the defense club (ph).
ABRAMS: And Pam, I think that jurors are—in particular in LA, are tired of this argument that, Oh, the police just were so bad and always wanted to get my client from day one. I mean, that‘s what happened in the O.J. defense they‘re using here. They wanted him. He was a big celebrity. Look, it‘s not as if they picked him out of a hat.
BONDI: Exactly. Exactly. And the fact that the two hitmen are going to come forward and say all these things. I mean, they didn‘t go out and find these hitmen. Exactly. Something else. I mean, juries know that. They are. They‘re sick of hearing, I think, about the LAPD. And I mean, they—their integrity‘s been attacked for so long, and now—I think there‘s plenty of other evidence in the case, and I really think it makes it seem like a fishing expedition for the defense when they do that.
ABRAMS: But very quickly, David, if they‘re able to discredit both of these hitmen, both of whom say, Robert Blake wanted me to try and kill—kill his wife—if they‘re able to discredit them, the prosecution still have a case?
WAHL: Absolutely, Dan. Listen, they‘re going to be testified—there‘s going to be testimony that both of them have long drug histories, that one of them‘s hallucinated about aliens...
ABRAMS: So assuming that happens, does the prosecutor still have a case?
WAHL: They have a case, but it‘s going to be an issue of credibility. The case is strong on the facts alone, but ultimately, as we saw in Peterson, what is credible, what isn‘t—I mean, that‘s going to be huge. And they‘re going to have to really hope that their testimony comes off as credible.
ABRAMS: Yea. All right. Pam Bondi and David Wahl, thanks a lot.
BONDI: Thank you.
ABRAMS: Coming up...
WAHL: You bet.
ABRAMS: ... the intelligence reform bill President Bush signed into law also calls for driver‘s licenses in every state to meet national standards. Critics in the ACLU and gun owner groups fear it could lead to a national ID. I think it‘s long overdue. We‘ll debate.
And if you‘re traveling this holiday, be nice to your airport screeners. Most of the time, they‘re just doing their job. Leave them alone! That‘s my “Closing Argument.”
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP - DECEMBER 17, 2004)
BUSH: Under this new law, our vast intelligence enterprise will become more unified, coordinated and effective. It will enable us to better do our duty, which is to protect the American people.
(END VIDEO CLIP)
ABRAMS: President Bush speaking about the anti-terrorism bill signed into law on Friday, the most sweeping intelligence reform since ‘47. Its purpose, to make the nation safer after September 11. All right. But one part of the act that‘s fueling a lot of debate are national standards for driver‘s licenses to be accepted as proof of identity for boarding airplanes, applying for federal benefits and other government purposes. Some of the measures to include digital photographs, that they be resistant to tampering or counterfeiting, they contain very personal information, like age, gender, home address and date of birth, that they‘re machine-readable, like identity information, similar to how you use a credit card. Some on the left and the right say it‘s too Big Brotheresque, paving the way for a national ID card that can intrude on an individual‘s privacy rights.
“My Take.” Every state already has a driver‘s license. All we‘re talking about now is making them uniform, setting forth uniform standards to make sure people can‘t make fakes—still going to be issued by the states—and to ensure that all licenses can be equally relied on as identification. If you don‘t want to have an ID, don‘t get a driver‘s license. In the post-9/11 world, I don‘t think it‘s a lot to ask. I don‘t really get what all the fuss is about.
Joining us now is Barry Steinhardt, director of the Technology and Liberty Project at the ACLU, Larry Pratt, executive director of Gun Owners of America, who agrees with the ACLU on this one, and Jan Ting, law professor at Temple University, also served as the assistant commissioner at the INS from 1990 to 1993.
Mr. Steinhardt, what‘s the big deal here?
BARRY STEINHARDT, AMERICAN CIVIL LIBERTIES UNION: Well, it depends on what happens here. First of all, we can have uniform standards for these driver‘s licenses, which we don‘t object to. Or secondly, we can create a very laden—heavily laden identity document that‘s, in fact, going to become a national ID that‘s going to be used in all sorts of circumstances to make us prove our identity, that‘s going to be used against minorities, and it‘s not going to make us any safer because, in the end, it‘s still going to be subject to counterfeiting. It‘s still going to be subject to fraud. The bad guys are still going to be able to get phony IDs. Good people are going to get trapped.
ABRAMS: But it seems like you‘re worrying about something that doesn‘t exist. I mean—I mean, you‘re saying it might possibly happen that X, Y, Z. Why don‘t you—I mean, let‘s let the states do what they have to. And let me read from the—what the law says, No. 1 here. “The secretary of transportation, in consultation with the secretary of homeland security, shall establish a date after which no driver‘s license or personal ID shall be accepted by a federal agency for any official purpose unless such driver‘s license or personal ID card conforms to the minimum standards” we talked about before.
STEINHARDT: Well, Dan, you have to ask the question, what are the minimum standards? They‘re not the minimum standards that you just said they are. There is a process that‘s going to be set up here where these standards can be much more elaborate than what you‘ve just said. This can either turn out to be the national ID, or this could turn out to be minimum standards for driver‘s licenses as we now know them. We‘re not going to know the answer to that question for another year or two. But there‘s a lot of rhetoric coming out of the 9/11 commission report, there‘s a lot of rhetoric coming out of the congress that suggests what we‘re going to get is a national ID, not the minimum standards that you‘re suggesting.
ABRAMS: I don‘t know. Jan Ting, I‘m just—I‘m just not that worried. I mean, I‘m happy—I mean, look, apart from the issue of a national ID card, which I don‘t—I‘m not particularly worried about, either, I don‘t think that that‘s what they‘re talking about here.
JAN TING, LAW PROFESSOR, TEMPLE UNIVERSITY: Yes, I think the 9/11 commission, the Congress and the president got this exactly right. And I think seeing the ACLU and the NRA together criticizing it gives me reassurance that they got—that they got it right. And I hope those who would consider supporting their position would reconsider, based on seeing these two organizations together in their criticism.
You know, Barry raises concern over a national ID card. You know, a lot of people don‘t think that‘s such a bad idea. Every poll I‘ve shown—
I‘ve been shown says that the American people, by overwhelming margins, would welcome...
ABRAMS: But you know, Jan...
TING: ... a national ID card...
ABRAMS: You know what he‘ll say. Look, Jan...
TING: ... and most countries of Western Europe...
ABRAMS: Jan, you know what he‘ll say on the other...
TING: ... already have one.
ABRAMS: Yes, he‘ll say on the other side that constitutional rights aren‘t popularity polls. You know that‘s what this response is going to be.
TING: Well, you know, we have a serious security threat here. I‘m sure the Congress and the 9/11 commission and the president give very serious consideration for constitutional rights. And ultimately, we have the courts to test these issues.
ABRAMS: Yes.
TING: So the system works, as far as I‘m concerned. It‘s produced a good result. I think it‘s just common sense that we not confuse our law enforcement officials with 50 different kinds of identification with varying standards. And to the extent law enforcement agencies are willing to share information, I think we should make it easy for those agencies to share that information.
ABRAMS: Larry, let‘s be clear. Do you have a problem with states conforming to certain minimum standards, to make sure it‘s not easy to fake driver‘s licenses?
LARRY PRATT, EXEC. DIR., GUN OWNERS OF AMERICA: Well, you might make an effort to require that there be some kind of demonstration that you‘re a legal resident, that you‘re a citizen. But beyond that, we really haven‘t seen the demonstration that the government has exhausted all other reasonable means. They have told us we have an illegal immigration problem. Terrorists can get in. They can get illegal driver‘s licenses. But what they haven‘t done is turned them back at the airport when they come in with a bad visa. Half of the guys that were involved in the 9/11 attack had bad papers. That wasn‘t the fault of anything other than the government.
ABRAMS: But that‘s...
PRATT: Also, we have a border that leaks like a sieve...
ABRAMS: Right. But that seems to me to be saying...
PRATT: ... and we‘re not dealing with that.
ABRAMS: That seems to me to be saying, Look, there are other problems, therefore, we shouldn‘t deal with this one.
PRATT: No, what we‘re saying...
ABRAMS: That‘s not a persuasive argument.
PRATT: ... is that you deal with the problem where you‘re going to do the most good and have the most likelihood of succeeding. They haven‘t done that. The Republicans seem to be happier...
ABRAMS: What‘s the problem here, though? What‘s the...
PRATT: Well, the...
ABRAMS: I don‘t get what the problem is.
STEINHARDT: Well, let me tell you what...
PRATT: The problem is that we end up doing away piecemeal with the Bill of Rights. Admittedly, it‘d be a lot more convenient if we just turned over the Bill of Rights and did away with all of those protections.
But we are talking about a national ID card. It was in earlier versions of the bill, and it was only due to pressure that we and others were putting on that that came out. But the platform is there. And just like our Social Security number has had mission creep and that which was never going to be used for identification purposes is now used, well, we‘re going to see the same thing with this national standard for the driver‘s license.
STEINHARDT: Dan, let me tell you about a very practical...
ABRAMS: Go ahead.
STEINHARDT: ... problem for millions of Americans. According to the FTC, there were 10 million cases of identity theft last year, 10 million cases where people had their identity stolen by thieves. This is going to make that problem much, much worse. We know the bad guys are going to be able to get these driver‘s licenses. They‘re going to be able to buy them on the open market. They‘re going to be able to buy them from corrupt DMV officials. What‘s going to happen is there‘s going to be an identity thief out there running around with an ID in your name with his digital photograph on it. That‘s a significant problem for the victims of identity theft never are going to be able to (UNINTELLIGIBLE)
ABRAMS: So basically, what you‘re saying is, if we get a better system in place, that therefore, we have more confidence in, anyone who gets one of these licenses, passports, whatever it‘s going to be, is going to have more sort of credibility. The problem is that using that argument, you can‘t do anything to try and improve the system.
PRATT: Yes, you can deal with it at the border. You can deal with it at the airport.
ABRAMS: But that‘s not addressing the question!
PRATT: We‘re not doing that.
ABRAMS: That‘s saying...
PRATT: Now that all the illegals...
ABRAMS: ... do other things.
PRATT: ... have been allowed in by the government, they‘re saying...
ABRAMS: Yes, but that‘s...
PRATT: ... Oh, the people have to become like a herd of sheep.
ABRAMS: Look, Jan Ting knows a lot about illegals. He was siting there at the INS for many years. But Jan, that‘s a separate question.
PRATT: No, that...
STEINHARDT: Well, but you know, the question...
(CROSSTALK)
ABRAMS: Let me let Jan Ting in here.
TING: I agree with—I agree with the notion that we could do a better job on border enforcement.
ABRAMS: Right.
TING: But I don‘t think there‘s anything inconsistent with doing a better job on border enforcement, and on the other hand, providing uniform standards on driver‘s licenses. You know, I mean, the situation of identity theft cannot be worse—cannot be better with 50 different ID cards out there. I mean, it‘s got to be worse. And so I think national standards can only improve the situation.
PRATT: No, well...
TING: I would suggest that maybe the improvement isn‘t going to be huge. Well, maybe that‘s right, we have to wait and see. But I think Congress is on the right track. We have to see what works and make it work.
ABRAMS: Mr. Steinhardt, final word here quickly.
STEINHARDT: Well, Jan, you can‘t have it both ways. It can‘t (UNINTELLIGIBLE) both a simple bill about uniform standards and a national ID card. This is a national ID card. At least, that‘s the direction in which we‘re headed. It‘s going to have all of the problems of a national ID card. The polls I‘ve seen actually suggest that most Americans oppose the concept of a national ID card. (UNINTELLIGIBLE) national ID card come in through the back door rather than the front door.
ABRAMS: I say you guys don‘t have to worry yet. Well, we‘ll see. If it becomes a big problem, then we can come back on and we‘ll worry about it. But for now...
PRATT: No, then it‘s too late, Dan.
ABRAMS: ... it doesn‘t seem to me we have to worry yet. All we‘re saying is we want to try and do exactly what the 9/11 commission recommended, and that‘s try and make it a little bit easier to have national standards and make the country a little safer. And I understand, Mr. Pratt and Mr. Steinhardt...
PRATT: When we come back...
ABRAMS: ... don‘t think it‘s going to have that impact.
PRATT: ... it‘s too late.
ABRAMS: I know. I get it. All right. Barry Steinhardt, Larry Pratt, Jan Ting—it‘s an important issue, and I think it‘s real interesting and I appreciate all of your thoughts on this.
Coming up: Anyone who travels frequently has probably gotten frustrated with airport screeners. I say, Get over it. Let them do their job. Leave them alone. That‘s my (UNINTELLIGIBLE)
(COMMERCIAL BREAK)
ABRAMS: My “Closing Argument.” The travel season in high gear, crowds at airports will mean more tension and more problems, particularly with tougher screening procedures in place. But no matter what you think about those screening procedures, it just doesn‘t help anyone to lash out at the screeners.
I fly a lot, and I can tell you that the vast majority of the TSA screeners have been patient and professional, as long as you play by the rules. And that includes basically doing as they say. It‘s the price we pay for flying while the threat of terrorism looms. Would I prefer if they had better technology? Yes. Would it be better if they could more accurately assess potential terrorists? Of course. But until that happens, we‘re going to have to accept sometimes invasive, uncomfortable screening procedures designed to protect all of us.
The screeners have instructions, and they‘re trying to abide by them. Don‘t give them a hard time. If you think they‘re violating their rules about physical examinations or something else significant, take the name down. Send a complaint to the TSA when you get home or politely ask for a supervisor. Makes me crazy when I see people at airports moaning about, Why am I being singled out? I have to catch a plane! Yes, that‘s why we‘re all at the airport. If you don‘t like the stress, get there earlier. You‘re just exacerbating the situation for everyone by yelling.
On my most recent trip last week, a seemingly frustrated—and I have to say somewhat rude—airport screener accidentally hit me in the head pretty hard with one of those plastic baskets and hardly seemed apologetic. OK. He could have dealt with it differently, and if it had been much worse, I might have lodged a complaint. But you know, we all just have to live with it a little.
And one thing I know for certain, you‘re not going to be able to change any TSA policy by screaming at the screeners. So this holiday season, give them, give us all a break, walk through the metal detector with a smile.
“Your Rebuttals” coming up in 60 seconds, along with a tale of what one twin did to get his brother out of prison. Yes, it worked.
(COMMERCIAL BREAK)
ABRAMS: We‘re back. I‘ve had my say, now it‘s time for “Your Rebuttal.” Last night, we told you about the Kansas woman who strangled a pregnant mom to death, allegedly, and ripped the fetus from the womb, then allegedly confessed. She appeared in court for the first time. Her husband said he didn‘t know the baby wasn‘t his.
P.J. McCafferty in Washington—“His wife calls and says, ‘I went
into labor and had the baby. Meet me in a fast-food parking lot.‘ Didn‘t
he question anything about her story, like, ‘Did you ever have her in a
hospital? Why didn‘t you call me when you first went into labor?‘”
We asked if her lawyers will use some mental deficiency defense. Robin Duffey in Palmer, Alaska, seems frustrated that I was saying I didn‘t have much patience for a psychological defense in this type of case. “I really get tired of all of you folks in the media who call these horrible illnesses ‘psychological illnesses.‘ Remember, Jane Pauley has been diagnosed with bipolar disorder, and everyone seems to accept that for her because she is a well-known and loved person. But when it comes to just regular people, they are called crazy. I wonder why that is?”
Well, Robin, because that‘s what they are, psychological illnesses.
That‘s what they‘re called. And because Jane Pauley hasn‘t killed anyone.
(LAUGHTER)
Finally, from last night‘s “Legal Lite,” the 60-year-old bank robber who wrote his demand note on the back of a piece of paper with his own name it. It was a letter from his parole officer, on parole for robbing a bank. Steve Eshbaugh in St. Louis—“Come on. The poor guy was 60 years old, on probation, probably no job. Sounds like he wanted to get caught so he could go back to prison and have society take care of him. He‘s probably smarter than any of us.”
Your e-mails, abramsreport—one word -- @msnbc.com. We go through them at the end of every show. Please include your name and where you‘re writing from.
And now to our “Legal Light” segment, which will officially have a new name tomorrow, which is—I‘ll tell you later. Remember, we asked you to name the segment. We got nearly 4,000 responses, or actually, entries into the contest. We got a lot more responses than that. We read all of them, and we‘re going to announce the name tomorrow. OK. The lucky viewer, of course, gets the MSNBC goodies.
Now to today‘s tale, which really is a Swede story of brotherly love and deception. Stockholm, Sweden, a creative prison break. An 18-year-old man visits his identical twin brother who‘s doing time for assault and robbery. Somehow, they manage to swap clothing. The convict walks out casually, leaving his innocent brother in his place. Sounds like the perfect dupe. But when the good twin realized he‘d have to spend the night in jail, he went to the prison guards and confessed their diabolical double take. Although the visiting brother was released, he may face charges of aiding a prison escape. His convict brother is still on the run. Can you imagine? Let me out of here! It‘s not me!
That‘s it for us (UNINTELLIGIBLE) Coming up next, “HARDBALL” with Chris Matthews. Campbell Brown‘s filling in tonight, talking to Lynne Cheney about her new book.
Thanks for watching. See you tomorrow.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
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