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Interview With Joe DiGenova; Interview With Stanley Cohen

Aired January 23, 2002 - 19:30   ET


BOB NOVAK, CO-HOST: Tonight, American Taliban John Walker is back in the United States. What should be his punishment?

And, the federal government takes on telemarketers. Is it time for the industry to hang it up?

ANNOUNCER: Live from Washington, CROSSFIRE. On the left, Bill Press. On the right, Tucker Carlson. In the crossfire, former federal prosecutor Joe DiGenova and criminal defense attorney Stanley Cohen. And later, Jerry Berman, executive director of the Center for Democracy and Technology and Robert Wientzen, president of the Direct Marketing Association.

PRESS: Good evening. Thanks for joining us. And talk about stepping into the crossfire. John Walker's about to do just that. Now back on U.S. soil, he landed at Dulles Airport about an hour and a half ago. The Taliban's American warrior will appear in federal court in Alexandria, Virginia tomorrow morning, charged with conspiring to kill Americans and doing business with the enemy.

No doubt, Walker was caught on the wrong side behind enemy lines, but how solid is the government case against him? Is a confession made to the FBI, without his lawyer present, valid in court? And can he be sent to prison for life, based on what he told CNN? Sounds like questions for two good lawyers. And we've got them tonight.

Joe DiGenova, let me start with you.


PRESS: Just before we walked into this studio, we were handed this statement that was released by Mr. James Brosnahan, the attorney for John Walker. Lindh has said that today Walker's parents received a letter dated January the 8th, sent with the help of the U.S. military.

In the letter to his parents, Walker states "it is comforting to know that you have found a lawyer." So doesn't that indicate, that contrary to everything the government has said, that Walker knew he had a lawyer, wanted a lawyer, was looking forward to talking to a lawyer, and in fact that letter validates maybe the entire case against him?

DIGENOVA: No, in fact, that's not what the letter says. Mr. Walker, apparently knowing he had a lawyer, voluntarily waved his right, gave statements to the FBI, and of course, gave lots of statements to CNN and others. He didn't have to speak to CNN. He chose to do that freely. That letter had nothing to do with CNN. He didn't have to the speak to military or the FBI, but he obviously, voluntarily chose to do so because he signed a waiver. Even if he has a lawyer, he can choose to wave the presence of the lawyer and speak. And he apparently chose to do so.

PRESS: Yes, but there's another option here, which is in the government case is build, as you say built, built on two things it seems, on the FBI statement and the CNN statement.

DIGENOVA: Well, that's only the case that's in the arrest warrant. The government is going to file another charge.

PRESS: OK, but let's...

DIGENOVA: That's the preliminary charge. They're going to file an indictment...

PRESS: Right.

DIGENOVA: ....which I predict will include treason.

PRESS: All right, well, let's talk about what we got, OK?


PRESS: We'll get to CNN next. But look at the FBI statement. This -- the statement he made to the FBI, this was made without his lawyer present.


PRESS: And possibly when the guy was on morphine. His attorney says he's going to challenge that statement as being invalid. If he successfully gets that thrown out of court, you've got to admit, no statement, no case against John Walker, right?

DIGENOVA: Oh, not at all. Oh, no, no, Bill. Actually, that's one of the reasons the government is going to bring a treason charge. And the reason is very simple. The statements that John Walker made to CNN will clearly be admissible.

Second of all, the statement that he made to the government will not be thrown out. But if it is, the government has plenty of other evidence. For example, John Walker was arrested, taken into custody by the U.S. military on the battlefield, with the Taliban and the al Qaeda, the enemy of the United States. He participated in the riot at the prison. He was present when CIA officer was murdered in the prison, in which he rebelled. He was in the basement, had to be flushed out when the rebellion was quelled. I think the evidence against him, which will include testimony I predict from al Qaeda members who are not presently known to the American public.

His case will be good one by the government. And even without his statement to the FBI, the government will have a very good case.

TUCKER CARLSON, CO-HOST: That's exactly right. And Stanley Cohen, thanks for joining us. You know, every day we hear more information about this guy and more damning details. And you stick by him. So you get credit for fortitude, if nothing else.

Now look, let's just take a look at two charges -- two things he's being charged with. Providing support to a foreign terrorist organization and contributing goods and services to Taliban. Now he admitted both of those things, both to the FBI and to CNN. And to CNN when he was not on morphine, incidentally. He only got morphine at the end of the interview, after he's already admitted that he was working for the Taliban and al Qaeda. It's open and shut, isn't it?

STANLEY COHEN, CRIMINAL DEFENSE ATTORNEY: Well, it was after he had been on the battlefield, after he'd been shot, after he was obviously under the duress of pain, after he'd been in the basement. But you know what? Even if the statements come in, the one thing that Joe jumps to, and you know, he's got the benefit of knowing the evidence and I don't, the one thing is the fact that he went to war against the great heroes, the great freedom fighters, the Northern Alliance, doesn't, by itself, mean that he went to war against the United States. It may have been he went to war in the battlefield, but it doesn't mean he went to war in the courtroom.

CARLSON: Now wait a second, Stanley Cohen. Now there were two things we've learned about him. A, that he knew that Osama bin Laden, whom he met with, as you know, had sent suicide cells.

COHEN: Well, I don't know that.

CARLSON: Well, he said that he met with Osama bin Laden. So I think we can take his word for it.

COHEN: He also said he was black rap star.

CARLSON: And he knew -- hold on. Not to CNN and not to the FBI. But he knew, he said, that al Qaeda had sent suicide cells into the United States, three months before 9/11> Moreover, we know that he stayed with al Qaeda after the attacks of September 11. Now if that's not evidence that he knew that he was supporting an organization at war with the United States, I don't know what is.

COHEN: Well, we're going to find out because it's not up to you. It's not up to Joe. It's not even up to me. Fortunately, we don't run simply by what the president or the Secretary of War says. We have jury system. We have judges.

I suspect lots of things that Americans believe he knew, he said and he did, when in the light of day shines on it, did not in fact occur. What we've got here is a young man who deserves the presumption of innocence, who was obviously seriously injured. He's still limping. He was given morphine, who was probably interrogated ad nauseum under horrific circumstances, who went to war against the Taliban. There's no evidence. While Joe says oh, he was there during a riot and participated in the riot. To the best of my knowledge, there's no evidence he picked up a gun or did anything against any U.S. service person.

DIGENOVA: Well, there's plenty of evidence that he was present at the time the Taliban decided it was going to take on the United States, along with al Qaeda, after the September 11 bombings. There was warfare after that. He didn't switch sides. He didn't get a plane ticket to come back to the United States. He engaged in the riot at the time the American troops were on the ground, in the compound. And he was present when a CIA officer, Michael Spann, was murdered.

PRESS: Joe, hold up, hold up. I watched that entire CNN interview. John Walker says he was in the basement of that prison. He did not take part in that riot. He heard the noise. He did nothing though. He didn't even know what was going on. He found out later what had happened, that an American was killed. How can you say the opposite? What do you know that he doesn't know?

DIGENOVA: No, he's charged with conspiring with others. Once you're in the conspiracy, you're responsible for everything that happens, even if you don't participate in it.

COHEN: You're wrong, Joe.

DIGENOVA: Oh, I'm sorry.

COHEN: It's not that simple. The conspiracy requires...

DIGENOVA: No, Stanley, I'm not wrong. I'm right.

COHEN: It requires more than just being in a conspiracy. You've got to have a specific intent at some point, and the specific intent to go to war against the Taliban.

DIGENOVA: No, you don't. No, you don't. You have to withdraw from the conspiracy.

COHEN: There could have been a number of conspiracies.

DIGENOVA: Stanley, what's the evidence he withdrew from the conspiracy?

COHEN: What's the evidence that he did anything? You don't know and I don't know. You assume things.

DIGENOVA: I see, I see. Well, Stanley, this may come as a shock to you, but you know what? We're all assuming a lot of things. This is a television show. We're here to have a discussion.

COHEN: Well, yes, but when you stand here and we have a discussion and you put forward as if it's chapter and verse and truth and then say there's overwhelming evidence.

DIGENOVA: Stanley, I'm doing nothing more than you are on the other side. What are you talking about?

COHEN: I admit I don't know the strength of the government's case or the weakness. And you don't.

DIGENOVA: Congratulations.

PRESS: I think that is the question. Not defending what he did, but how good is the government's case?

DIGENOVA: I agree with you.

PRESS: Now let me ask you something which I don't understand. OK? In May, let's go back to last May, the United States was doing business with the Taliban. We were paying them money not to grow poppy.

DIGENOVA: Correct.

PRESS: If you believe...

DIGENOVA: Actually, we were doing during the Clinton administration.

PRESS: And during the Bush administration.


PRESS: I'm just going back to May because it's a key month. Also, if you believe the latest book, the United States was negotiating with the Taliban to build an oil pipeline across Afghanistan.

DIGENOVA: They were the government.

PRESS: And also in the month, and also John Walker. Exactly. John Walker arrives to join the same people we're doing business with.

DIGENOVA: Correct.

PRESS: Now if we charge him with conspiring with the bad guys, aren't there maybe a lot of other people like in the administration that ought to get to the same charge?

DIGENOVA: Oh, please, Bill.

PRESS: They're doing business with the Taliban?

DIGENOVA: After September the 11, all of these changes, and Mr. Walker has an opportunity to subtract himself from his relationship with the Taliban...

PRESS: How do you know this?

DIGENOVA: and al Qaeda.

PRESS: He's not in the... DIGENOVA: No, no, he, in his statements to CNN, he said met with Osama bin Laden and al Qaeda leaders. He knew they were on a suicide and martyrdom mission. He knew about the September the 11 bombs. He knew that they had been ordered by Osama bin Laden. He never withdrew. He stayed there with them and continued to fight.

CARLSON: Now Stanley Cohen, I have to say you are living in parallel universe. You say that there's no -- we don't know anything about John Walker. The guy was caught on film in the middle of a prison uprising...

COHEN: That's correct.

CARLSON: ....saying that he's a member -- that's working for the Taliban. If I'm caught on film in a liquor store with a gun in my hand and a cash register drawer in my hand, owner says there's a robbery, I think we can assume I'm the prime suspect.

COHEN: It's the same time...

CARLSON: To say we don't know anything is ludicrous.

COHEN: It's the same time when a medic reaches over, gives him liquid morphine, and says, "Here, young man, here's your happy juice." What we do know is that he's captured on the field fighting Taliban. There's not a shred evidence, and I don't suspect there'll be a shred of evidence, that he fired a single shot at any service person in the United States. Unless the government is lying, they told us there weren't even U.S. ground troops in the area at the time. (UNINTELLIGIBLE)?

CARLSON: Stanley, as you know, that's not what he's charged. Let me ask you something else. One of the criticisms that's coming from Britain now is that he's been given preferential treatment, in preference to those in Guantanamo Bay as an American.

And actually I have to say, I agree with this. I mean, there are -- he's one the lucky ones. There are thousands, as you know, of prisoners who are rotting Northern Alliance prisons in northern Afghanistan. And this guy, because he's a rich white kid from northern California, from a fashionable suburb, has the privilege of being in Alexandria, Virginia tonight. So I mean, you say he's not being treated well. He's being afforded due process. Isn't that more than he deserves, a lot more?

COHEN: Well, he's being accorded due process, because unlike those people there are being tortured in Guantanamo Bay, he's being prosecuted in the United States as a U.S. citizen. Due process attaches here. He has a fundamental right. The answer isn't to treat him worse. The answer is to treat everyone else in a humane fundamentally fair fashion.

DIGENOVA: First of all, nobody's being tortured in Guantanamo Bay.

COHEN: No, they're being kept in cages outdoors around the clock.

DIGENOVA: Yes, but you said is false.


PRESS: Real quick question, before we break. It has to do a lot to do here. God forbid that any of us would be held responsible in a court for what we have said on CNN. He talks to CNN. God bless him, but how could that be used against him in a court?

DIGENOVA: Well, because it's a statement made by a defendant about himself to the world. It's voluntary and it's admissible evidence. But the world is full of videotapes of people making statements on television in criminal...

PRESS: Be careful what you say.

CARLSON: And there is the deep lesson: Be careful what you say on CNN. Stanley Cohen, that is particularly aimed at you. Be careful. Thanks for joining us. Joe DiGenova, thank you.

DIGENOVA: Thank you.

CARLSON: Very much.

Coming up, they call when you least expect it and most detest it. They're telemarketers, perhaps the most mocked, abused, disliked species on the planet. Should the Feds put them out of business? Or does the government have better things to do these days? A ringing debate. Up next.


CARLSON: Welcome back to CROSSFIRE. It's dinner time. The phone rings. You push back from the table, sprint across the room, only to find someone you've never met hawking a pre-approved, double- platinum, 16 percent APR, no money down, cannot fail, credit bargain of the century, a telemarketer. Very annoying.

But should it be illegal? The government has come a lot closer to saying "yes" recently. Yesterday, the Federal Trade Commission proposed broad new restrictions on the telemarketing industry. Telemarketers and some civil libertarians have criticized the proposals as an assault on free speech. Which raises the question, are cold calls protected by the First Amendment? Our debate begins there tonight.

Joining us, Jerry Berman, director of the Center for Democracy and Technology, and Robert Wientzen, CEO of the Direct Marketing Association.

Now Mr. Berman, the government has come in. I'm against telemarketing as much as anyone. I've got a phone. I'm a human being. I'm annoyed about it. But the idea that the federal government is taking up this as an issue implies, I think, that it has solved every other problem in American life, starting with the war, going in descending order down, up into telemarketing. Is this really where the government ought to be spending its time doing?

JERRY BERMAN, CTR. FOR DEMOCRACY & TECHNOLOGY: No, the Federal Trade Commission, however, is not in the frontlines against the Taliban. Its job is to protect consumers. And there is just a growing outrage by consumers, homeowners, people in their little castle that it's being invaded by telemarketers who are making these calls that they don't want. They don't want to be hustled at dinner time or at home. And they want to have a way to get out of that.

And what the federal government is providing is a call list, a do not call list, which they would maintain and help to enforce, which is not taking telemarketers off the air, but it's giving the consumer a chance to say no. I'd rather watch CROSSFIRE. Don't want to be running across...

CARLSON: Now wait a second. Wait a second. With all due respect, Mr. Berman, OK, they're protecting the consumer. This is an invasion of the home. My internal hyperbole alarm is going off here. I don't think when people speak in movies, when they talk over the sound of the movies, but I don't think we ought to send the federal marshals in. There are many things in American life that are annoying, but it doesn't mean they rise to the level of the federal response. And this strikes me absolutely as one. this is a piddly, non-problem. Makes yuppies mad. So what?

BERMAN: Oh, it doesn't make all the yuppies. In the last few years, about 10 states, now 20 states have past do-not-call laws. There is -- when you poll the public about what is their major privacy gripe, this is at the top of their list. 50 percent of the public say I don't want this to happen. Give me a way out. And there is no transparent way to do it. And this is a way to give them that option.

PRESS: All right, Mr. , let me pick up there with you.


PRESS: No, hold it, just if I may.

WIENTZEN: It seems to me that that's the very basic reason that we're talking about whether this is a governmental function or not. The government doesn't need to jump in where we already have a bunch of people. We're talking belts and suspenders here.

PRESS: All right, now, let me suggest why you're wrong. OK? Look and I want to tell you, we don't know each other. I'm a very gentle person. But if you want to see me get angry, if you want to see me come out with a string of loud, obscene profanity, it's when I get one of those calls. And I get them, and they're usually at dinner. They're obnoxious, they're insulting, they're invasive. And if the FTC wants to set up a number using my tax dollars, so I don't get those damn calls, why not?

WIENTZEN: Well, look at it this way. First, the telemarketing industry is $688 billion in sales. 6 million people employed. Somebody must be buying something. So not everybody agrees with you and agrees with, admittedly... PRESS: Fine.

WIENTZEN: A number of people who don't want those calls. So that's point number one.

PRESS: Fine.

WIENTZEN: Point number two, the opportunities that this presents to a lot of people, people who wouldn't have those opportunities presented any other way, I think is a significant part of the American scene, the American commerce, and the economy right now.

PRESS: Well...

WIENTZEN: Wait a minute. Just one last point. There is already a lot of ways in which you can exclude yourself from those calls. We have maintained a list like this for 17 years.

PRESS: Mr. Wientzen, I appreciate the commercial for the Direct Marketing Association, but it doesn't come close to answering my question.

WIENTZEN: It's not a commercial. It's true.

PRESS: I am not talking about the people who want these calls. They can have all the calls. They can have my calls. I'm talking about the people who don't want to be annoyed. And I think they're most Americans. Why shouldn't the government protect the consumers, set up the person, so we can call them, put our phone number on there? And we'll never be bothered by these pests again?

WIENTZEN: Well, there is already such a list. It's been around for 17 years. There about 4.25 million people on it. When they sign up for that list, about 80 percent of the calls are excluded. Now you got to look at what the FTC is proposing here. For one, they're saying this is now, or they're at least considering this being a federalized function. Why shouldn't it be when the private sector's already got it? Point one. Point two...

PRESS: Because the private sector doesn't cover everybody.


BERMAN: It is. We are in national economy, even a global economy. There are 20 now different state laws. It would help industry and everyone to have a one size fits all list. There is right now the consumer doesn't know where to go. Call the state, call his attorney general, call the Direct Market Association, call a third party, buy caller ID, buy another phone. There's no transparent way to do this. It's very complicated.

And all this is doing, the big federal function, it's not a major one. It's maintaining a list that says I want to get on that list. Don't call me.

CARLSON: But I'm wondering if there isn't a cost here. I mean, we just heard -- Mr. Wientzen made an excellent point. This is an industry that employs 6 million people; $668 million a year. Hold on for a second. And at a time when we're so concerned about Enron and the upper middle class shareholders who have lost their retirement, et cetera. We're talking about industry employs people at the bottom end.

And there's a human face to this. And I wonder why the federal government ought to be in the business of attacking industries it employs that need it most.

BERMAN: Wait a second. All right, the employment is terribly important, but doing business..

CARLSON: But not being annoyed during business is more important?

BERMAN: No, but doing business in a way which turns consumers off, so that they're not buying anything or don't want to buy anything is not good business.

CARLSON: But your argument is prima facie absurd.


CARLSON: It's a $668 billion industry. Obviously, people are buying stuff.

BERMAN: Presumably based on people who, if they want to buy over the phone, will not sign up for the do not call list. And since Mr. Wientzen himself has maintained a list, it just hasn't been effective. He doesn't have enough members. He doesn't represent all the telemarketing industry...

PRESS: Right.

BERMAN: ...but he recognizes the principle. If he recognizes the principle, let the government pay the cost.

WIENTZEN: We represent the vast majority of the callers out there. But point one, we are happy to exclude those who don't want to receive calls. We've said that from the beginning. We don't disagree with the FTC's basic interest, which is saying, people who don't want to receive calls are not good customers. So we don't want to call them. It's too expensive. It's not effective.

PRESS: Yes, but let me tell you the problem. Here's another problem here. You know, people like me are smart enough to hang up. You know, the people, the real victims of these obnoxious phone calls are the senior citizens. They're the lonely people for whom getting a phone call is the big deal. They're the ones. It's just like TV preachers. They're suckered in by your calls and they're buying something they don't need.

Again, don't you think it's a legitimate function? Because your system doesn't reach everybody because all these businesses don't belong to it. So have the federal government set one system, one phone number, that everybody can call? God bless America.

WIENTZEN: Well, the federal government suggests that it would be an $11,000 fine to call someone, which seems ridiculous.

PRESS: Good.

WIENTZEN: Point one. Point two, it would only cover interstate commerce. It would not cover intrastate commerce. So calls made from within a state would not be covered. The FTC does not have jurisdiction over banking. It doesn't have jurisdiction over common carriers. It doesn't have jurisdiction over politicians who exempt themselves from everything that is regulated like this. And it doesn't have jurisdiction over non-profits. We require all of those categories.

BERMAN: We can extend that jurisdiction. We can go to Congress and cover those other industries.

PRESS: Jerry, that's got to be the last word. We're going to give the government even more power. I love it to stop phone calls. Jerry Berman, thanks for joining us. Bob Wientzen up in New York, glad to have you here. Thanks, guys. We're going to hang up right there on both of you.

And in tonight's last segment, hey, they may no longer be in the news, but they didn't disappear entirely. We've tracked down Gary Condit and O.J. Simpson, would you believe? Where are they now? And what are they up to? Stay tuned. We'll tell you.


CARLSON: Welcome back to CROSSFIRE. It's time for our where are they now segment? The famous, the infamous, the until now unknown. Whatever happened to them? Now it can be revealed. We start with America's most recognized member of Congress, Gary Condit. He's running for re-election. So far, he appears to be losing the fight in the Democratic primary. Here's his explanation.


REP. GARY CONDIT (D), CALIFORNIA: If, you know, by chance I don't win the campaign, that's the will of the people. That's what a democracy's all about. And it'll be up to the people to decide that. Maybe I won't be able to connect with them because of all the negative publicity that's occurred for the last eight months.


CARLSON: OK, if you're looking for nominees, there's the quote of the year. If by chance, I don't happen to win. Gary Condit is getting steamrolled by a former staffer. He deserves it. And bottom line, Bill, you won't have Gary Condit to kick around anymore, coming soon.

PRESS: I'll miss him. No, you know, actually, it's a sad case. I mean, I'm almost starting to feel sorry for Gary Condit because it's clear he's not going to win. And I just hope he's had some feelers out for jobs down in the valley selling real estate or insurance or bibles or something. I mean, he's going to need a job come June.

CARLSON: May I suggest managing Radio Shack?

PRESS: It ain't going to be coming back to Congress.

CARLSON: That's OK with me.

PRESS: Speaking of a blast from the past. Here's another one. You remember of course, how could we forget? O.J. Simpson. Talk about a man who just can't stay out of trouble. Ever since he moved down to Florida, O.J. -- the police were called once because there was a big fight between him and his girlfriend.

He was in court not so long ago, accused of attacking a driver in some road rage incident. He got off of that charge. Well, here's the latest. It seems that O.J.'s girlfriend been missing for a month. I mean, she's not missing, but she took off for a month. And while she was gone, they found her cat dead in her apartment. The big question, Tucker, is was it O.J.'s job to feed the cat while she was gone? And is the cat O.J.'s third victim?

CARLSON: You have missed it. The big question is how did O.J. Simpson get a girlfriend? That's what -- you'd think a worldwide televised murder trial would dampen one's dating prospects. Apparently, it hasn't.

PRESS: Yes, I think -- I cannot comment on that. I just wish O.J. luck in finding the real killer down there in Florida on the golf course as we know.

CARLSON: Yes, good luck, O.J. And finally. move over Ronald Mcdonald. McDonald's has long had an image problem in France. Purists say the Big Mac can't compare to horse meat and frog legs. McDonald's has been attacked. Even so -- from now on, the mascot for McDonald's in France is Astericks, the cartoonish, sword-carrying glutton, who apparently will appeal to French pride. No word is McDonald's would be selling cheval burgers.

So I think that would be perhaps the best marketing tip. Horse meat.

PRESS: I have to tell you, Tucker...

CARLSON: I love it over there, Bill.

PRESS: ... slow down. Astericks, by the way, great comics. If you haven't read them, you ought to read them. He's a good figure for that. You know the biggest mistake France made is letting McDonald's in the first place. They've got great bistros, great cafes, great restaurants. They let this American trash food...

CARLSON: If I can just...

PRESS: It's an insult to France. CARLSON: If I might just -- and they eat horses.

PRESS: Yes, and they drink good wine and cheese. From the left, I'm Bill Press. Bonsoir from CROSSFIRE.

CARLSON: And from the right, I'm Tucker Carlson. Join us against tomorrow night for another edition of CROSSFIRE. See you then.




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