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CNN Crossfire

Would the Bin Laden Tape be Useful Evidence?

Aired December 12, 2001 - 19:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANNOUNCER: Live from Washington, CROSSFIRE. On the left, Bill Press. On the right, Robert Novak. In the CROSSFIRE, Democratic Senator Dick Durbin of Illinois, member of the Intelligence Committee. And then, in Boston, criminal defense attorney Alan Dershowitz. And in New York, attorney Ann Coulter.

ROBERT NOVAK, CNN CO-HOST: Good evening, welcome to CROSSFIRE. We expected that by tonight we all would have viewed that remarkable video of Osama bin Laden at the dinner table with his buddies, rejoicing over the September 11 slaughter of the innocents, but no, it's not ready yet for our viewing in the opinion of the government.

It seems this very amateurish video is hard to watch. And even four government translators are having trouble with Osama's Arabic. It's not even sure that it'll be ready for public viewing tomorrow, but United States Senators appear to be superior beings with heightened powers of appreciation and Senate Intelligence Committee members have been shown the video. So we have for you, the next best thing to the bin Laden video, a live U.S. Senator who actually has seen it and is going tell us all about it -- Bill Press.

BILL PRESS, CNN CO-HOST: Senator, it's nice to have a superior being on the show, thank you for joining us.

SEN. DICK DURBIN (D-IL), INTELLIGENCE COMMITTEE: Nobody in my family calls me a superior being...

PRESS: Nobody else will.

(CROSSTALK)

DURBIN: ... I can guarantee you.

PRESS: From what we've heard, this videotape shows Osama bin Laden laughing about all the thousands of American civilians that were killed, laughing about the fact that there were even members of his terrorist team who didn't know they were being flown to their death at the Pentagon and the World Trade Center towers. You've seen the video. Before we get into details about it, what was your personal reaction seeing that and hearing that?

DURBIN: I was stunned, Bill. I will tell you that we don't have a recording of Hitler's reaction to the holocaust or Stalin's reaction to the purges, but we now have a recording of Osama bin Laden, calmly, coolly discussing September 11. And if there are any emotions at all, there's smiles, laughter, marveling at all the destruction and death that occurred, and if there are any doubters left, I don't who would be left in this country, but doubters around the world, I want them to see this tape, because I think it dispels all doubt that he was the mastermind behind September 11.

NOVAK: Senator Dick Durbin, there's been so much talk from the government about how difficult this tape is to watch. What was so hard about it? What were the defects in it?

DURBIN: Bob, I think you have to understand this was a crude, it looked like a home video -- it's the kind of thing you'd expect at a birthday party or a family gathering. And it was with available light in the room, it wasn't professional -- so the microphone's on the other side of the room, he knew it was there, there's no secrecy involved. They have the video camera showing Osama bin Laden walking into the room with his AK-47 over his shoulder. Al-Zawahiri his Egyptian doctor, adviser right behind him, and a fellow who's last name, I think, is Gaffe (ph) who is his spokesman, third in line. And then they sit down and the video continues and it's from across the room, and he mumbles and he looks down and he looks away from the camera from time to time. And I assume, and I really want to cut some slack here, I assume the administration wants to make sure they've done everything possible to have the best and most accurate translation, so there's no doubt about its authenticity and what it says.

NOVAK: Explain something for me, if you would, Senator. It's so difficult for people to see, they can't understand it, but you have watched it. I just ran into Congressman Saxby Chambliss, Republican of Georgia. So it isn't just Democrats who understand this, he saw it and understood it, and you seem to be able to tell what happened. Are members of Congress sort of like dogs who hear high-pitched voices that you can see things, other people can't?

Why can't you show it to the American people if you can show it to Dick Durbin and Saxby Chambliss.

DURBIN: Because we have to take it face value what our translators, standing right next to the TV screen, tell us Osama bin Laden said. And I'm sure that the administration wants to make certain that when this is release to the world, that this won't be in dispute as to what he said. I accepted what the translator said, I looked at the transcript, it was consistent. And some of the things in there are so clear, that frankly I don't think there's much dispute about them, but I think the administration is just trying to be cautious to make sure that no one can question the authenticity of what was said.

PRESS: The question is, if they're being too cautious. If they really had this smoking gun, if this video is as good as they say. Then don't you think they made a mistake in not putting it out there, right away, instead of talking about it Sunday, talking about it Monday, talking about it Tuesday and Wednesday -- put it out there so the world can see it? DURBIN: Bill, I think they should put it out as quickly as they can, and when it's ready. First thing they did was to compare the voice of Osama bin Laden on this tape with his voice on the Al- Jazzerah tape, to make certain that it was exactly the same voice. Because that's the first question, did somebody dub over a voice, did he really say it? They did that, that's been established. And now they're walking through this translation, and I think they want to make certain, as important as this is, that when it's released that there will be people who will question, but they won't be able to question it with as much effectiveness.

PRESS: There are people around the world who question, still, believe it or not, what happened on September 11.

DURBIN: That's right.

PRESS: Do you think this video, you've seen it, is it strong enough is, it compelling enough, is it clear enough that it change the minds particularly in the Muslim community?

DURBIN: If they are open-minded and objective about it, yes. Two things that Osama bin Laden says on this video convinced me. Number 1, he talks about being in his mountain hideout the day of September 11 and the radio broadcast comes over about the first plane crashing into the World Trade Center, and he says the people were overwhelmed with joy. They were dancing and laughing, and he said; wait, wait -- and our translator said, watch his hand, he a Middle Eastern jester like this, which means wait, wait. And they wait, and a short time later they announce the second plane has crashed in. How would he know there were two planes, unless he was involved in it. Secondly, he comes up with the name Mohamed Atta.

Now this is a name we know, from all the news coverage, he could know that too, but he goes on to explain Mohamed Atta was the leader of this. Some of the other terrorists on the plane didn't know what they were in for. They might have thought they were hijacking a plane, let alone crashing into a building, and so after he said this it really, he turns to this Gafe (ph) next to him, and said he didn't even know what the plans were in detail. I mean if I'm the prosecutor in that case, I think that's a smoking gun.

NOVAK: Senator Durbin, there was a Palestinian editor in London who was on CNN, earlier today, and he said something remarkable, he said that the fact that the United States was -- had this tape in its hands now for 4 or 5 days, led people to believe in the Arab world that they were doctoring it. That they were taking all this time, because they were, you know how you can doctor things. It shows me that it's very difficult to ever tell -- teach, get these people to say yes, Osama bin Laden was the perpetrator.

DURBIN: Bob, there's some will never convince. There's some who still believe that Israel was behind all of this. And you heard some of those wacky theories that came out from some of the lands in the Middle East and Far East. But, you know, I think the administration is trying to struggle with number one, get it out there as quickly as you can. But make sure when you put it out, it's credible and you can stand behind it.

Keep in mind that this videotape is kind of disjointed. This started at the end of the tape as Osama bin Laden walked in the room, halfway through his meeting there, the fellow ran out of videotape. So he rewinds back to the beginning and tapes over another part of the tape, so if you look at the tape from start to finish, you think what in the world is this, and then it makes sense. The second half starts it, there's an intervening part of the tape where these Afghans are jumping for joy around a crashed American helicopter. And then it comes to the beginning of his entry in the room. It makes sense if you play with a video camera, but it took a while to put that together.

PRESS: And you have no doubt of its authenticity?

DURBIN: I Don't. And I think -- I can't tell you the sources, but I think the sources are certainly credible, as they were disclosed to the Senate Intelligence Committee.

PRESS: Senator Durbin, thanks very much for joining us. We look forward to seeing the tape.

DURBIN: I hope you do. Thanks, Bill.

PRESS: Hope we can soon. And when we come back, let's go to the videotape. Is the tape good enough to be admissible in the courtroom? We are going to ask two attorneys, professor Alan Dershowitz, joining us from Boston. And attorney Ann Coulter joining us from New York.

We will be right back with more on the videotape.

(COMMERCIAL BREAK)

PRESS: Welcome back to CROSSFIRE. So, suppose American forces do capture Osama bin Laden and he's brought back to this country for trial. Knowing what we just heard about the videotape, how valuable would it be as evidence in the courtroom against him?

Two experienced courtroom lawyers jump into that debate now. In New York, attorney and legal reporter for "Human Events Magazine" Ann Coulter, and up in Boston, criminal defense attorney Alan Dershowitz, author of "Letters To A Young Lawyer" -- Bob.

NOVAK: Professor Dershowitz, none of us have seen the tape but we've all heard all about it. My goodness, that is a smoking gun if I ever heard one. Forget about laws of seizure and search and all that sort of thing. Even Alan Dershowitz would have trouble defending Osama bin Laden with that evidence in court, wouldn't he?

ALAN DERSHOWITZ, CRIMINAL DEFENSE ATTORNEY: Well the interesting thing is the first time the case will come into court, it probably won't be in a case involving bin Laden. I suspect that the lawyer for Zacharias Moussaoui will want to subpoena the tape and possibly introduce it in his trial because he will argue that, look, my client's name is not mentioned on the tape. Moreover, you hear bin Laden himself saying some of the people who were involved in the hijacking didn't even know that anybody was going get killed.

So we may ironically get the case unauthenticated because the defense seeks to introduce it into the case, and the government on the other side of the case will have to acknowledge it's authentication because they will want to use it in a subsequent case, so yes, I think we have to assume this case is coming in, that we are not going to have the usual problems of, you know, course of custody or authentication, or best evidence. We have to assume this case -- this evidence is coming in.

And if it says, all we have heard is is hearsay so far, if it says what the senators say it says in context, it's pretty damning.

NOVAK: In all due respect to Mr. (UNINTELLIGIBLE) , what the people are interested in is Osama bin Laden. This is devastating for him, is it not?

DERSHOWITZ: Well I think the most devastating part of it, look, his defense lawyers, whoever they may be, and I sure hope that when the court comes to appoint a lawyer for him, they appoint a woman to represent him.

What great, sweet irony. Ann Coulter would be the perfect person to do it. And I suspect that the lawyers will acknowledge the authentication of the tape because it would be foolish to dispute it. But they will probably try to argue, and I don't think they won't prevail, that look, in that part of the country people often take credit for things that they really do.

The thing that really is the smoking gun is his knowledge that the second tower would be coming down, or that the plane would be hitting the second tower before it ever happened. I can't imagine any way of getting around one, if it is true, that is, if he said it, and if he wasn't making it up after the fact. After all, the tape was taken after these events occurred.

PRESS: Ann Coulter, now that we know that you are Alan Dershowitz's candidate to represent Osama bin Laden, fat chance of that, I'm sure, but you heard what Senator Durbin said about the tape. I'd like you to listen to what someone else, Victoria Clarke, over at the Pentagon had to say about this tape today and some of the problems with it. Please listen.

(BEGIN VIDEO CLIP)

VICTORIA CLARKE, PENTAGON SPOKESWOMAN: The quality of the tape is poor. The picture is not great. This is not a professionally produced videotape. The audio is very poor. Evidently even if you're a fluent Arabic speaker, it's very hard to hear some of the things. So we want to be careful we have an accurate translation of those parts that we can.

(END VIDEO CLIP)

PRESS: And Senator Durbin adds that parts of it had clearly been tapped over. Were you defending him, it would be easy to knock this tape out of court, wouldn't it, as a sloppy piece of tape?

ANN COULTER, ATTORNEY: Well, in a real court -- or a normal civilian court -- that is to say, I think there are real chain of custody problems but I don't really know what the chain of custody of this tape has been.

That's one of the great things about military tribunals for suspected terrorists, different rules of evidence. But I think there is a chain of custody problem. I suspect it's not going to be necessary, this tape, and I mean I think there's a reason we are dropping "daisy cutters" on Osama bin Laden's caves right now. We didn't follow strict Fourth Amendment procedure for that.

He does seem to be the one. Tony Blair tells us he's the one. The defense secretary tells us he's the one. Bush tells us he's the one. I don't think we are going to have a regular trial for Osama bin Laden even if he comes out of this alive, which I really doubt.

DERSHOWITZ: But chain of custody is not an absolute barrier. The best evidence rule is what prevails. If this is the best you can do, Mafia people have been sent to jail on the basis of tapes in jargon Italian that you can hardly understand. And you introduce experts and they enhance the audio and the jury listens and makes its own determination.

I suspect if we ever had a trial this would come in.

PRESS: But I remember a case in Los Angeles, you both do, Ann Coulter, I want to ask you about, the Rodney King trial. Everybody said those cops are guilty as sin. Just look at the tape. How can you dispute it? You know what happened? They got off, first trial, at any rate.

So this tape does not necessarily mean, assuming we have this trial, that Osama bin Laden -- that this hangs him, right?

COULTER: No. I doubt this is the strongest piece of evidence. I mean, all of the harangues of the Bush Administration for not releasing this tape sooner, I'm dying to see this tape, but we may as well all admit it's out of idle curiosity that we all want to see this tape. We are not waiting to see whether it was Osama bin Laden or a Zionist conspiracy, and it is all hanging on this tape. I think most rational people are persuaded it is Osama bin Laden, and we are just all wildly curious and want to see the tape.

PRESS: Professor Dershowitz, in regard to what Ann Coulter said, isn't this an argument for trying these terrorists in military tribunals rather than in U.S. domestic courts?

DERSHOWITZ: I knew you would ask that question and I think it is exactly the opposite. I think our civil courts are perfectly capable of assessing evidence and of making rational logical decisions. No court would require, for example, that the chain of custody disclose who the source was, if the source was somebody who was an intelligence gatherer. Look, constitutionally, I have no doubt. You can try Osama bin Laden in secret, in a military tribunal. Indeed, probably you don't have to try him at all. But we want to proclaim to the world our evidence of his guilt and our confidence in our legal system and I think if we were to have a trial that was open for all to see, you know, you call it a circus, you call it a media, but that's what this world is about.

This whole event has been something of great interest to the world and if we were to try him in secret, it would just add to the paranoia that goes on in the Middle East, that we doctored the tape and we are hiding the evidence. We should be proud of our civil system of justice and we ought to be confident it would produce the right result. And even if it produced the wrong result, look, the process of justice is what matters.

NOVAK: Professor Dershowitz, I would like to you listen to somebody who has a dissenting view, and what's interesting is that it was somebody who I believe, just a year ago, you were fighting very hard to become vice president of the United States. Let's listen to him.

(BEGIN VIDEO CLIP)

SEN. JOE LIEBERMAN (D), CONNECTICUT: This guy, to use the parlance of the regular criminal courts of the United States, is a big fish. And I fear that the decision to try him in the federal district courts of the United States with all the rights of evidence and rules of evidence and rights of due process, may let this big fish get away.

(END VIDEO CLIP)

NOVAK: The big fish he's talking about of course is Moussaoui, the fellow who was indicted yesterday. And he says, if Alan Dershowitz has his way, well not Alan Dershowitz, if President Bush has his way, and we try him in a civil court he may get away, while if we use the military tribunals he won't get away. How do you answer...

DERSHOWITZ: That is certainly true, he won't get away in the military tribunal because the president will tell the majors and the colonels to convict him. Have you ever considered the possibility, and has Joe Leiberman ever considered the possibility that Zacarias Moussaoui may be conceivably be innocent? That's what our legal system is all about.

You can't start by presuming that he is guilty. I hope like hell he's guilty and I want to see him get the longest possible punishment, but I want to be certain that he's guilty. And a trial by a military tribunal wouldn't give me that certainty. A trial in a civilian court, if he were convicted and the appeals confirmed it, would give me that certainty.

PRESS: Ann Coulter, you just said a little earlier in the show that you really support these military tribunals, but I want you to respond to Professor Dershowitz's point. What are you afraid of? We've got a system of justice. It is the best in the world, may not always get it right, but shouldn't we trust it, and don't you?

COULTER: Well, a couple points. One, in direct response to what Professor Dershowitz just said, I think the idea that any American jury is any less likely to convict a suspected terrorist than a military tribunal is preposterous.

I mean, that would be a problem with civilian trials.

DERSHOWITZ: Except if you were innocent.

(CROSSTALK)

DERSHOWITZ: What about that? You know, Ann, it is so hard for me to conceive of the fact that somebody might be innocent? But what if he were innocent?

COULTER: The other point I was going to make, is that the other problem with civilian trials as opposed to a military tribunal, is that they go on and on.

DERSHOWITZ: So?

COULTER: Professor Dershowitz will correct me on this if I'm wrong, but I just read in the newspaper that one of the agents involved in the bombing of the Lockerbie plane is still having his conviction appealed by none other than Professor Dershowitz.

DERSHOWITZ: No, I will correct you. I'm not appealing his case. I am consulting with the British law firm that's looking into the issue and indeed many intelligence agencies around the world have come the conclusion that they have the wrong person.

(CROSSTALK)

COULTER: Since 1988.

DERSHOWITZ: Wait a minute. But what if this was an attack by Syria, by the popular front for the liberation of Palestine and not Libya? No matter how long it takes we wants to know the truth.

NOVAK: We are out of time. Thank you very much, Alan Dershowitz. Thank you Ann Coulter.

When we return, "Backfire." Can you what believe what happened a year ago today.

(COMMERCIAL BREAK)

PRESS: And now "Backfire." Who can forget? One year ago today, December 12, 2000, here is my spin on that day, the Supreme Court shut down the recount, making George W. Bush president of the United States. How times have changed.

Then, George Bush was worried about hanging chads. Now, he's in the White House. Too bad he was appointed, not elected. Then, Al Gore was counting on dimpled chads. And now, Professor Gore looks more like a Taliban fighter than a presidential candidate. And then, Katherine Harris became Florida's queen of chads. And now she's trying to ride her fame for notoriety, all the way to the U.S. Congress.

Bob, may we never experience another election like that one?

NOVAK: Bill, even if the Supreme Court had acted differently George Bush would still be president. He did save us a constitutional crisis. But let me give you one more "then and now." Then Bill Press standing in front of the Supreme Court in the middle of the night, trying to figure out what the judges have done to destroy his candidate, and now Bill Press still mourning the defeat of Al Gore.

Bill, get over it. The rest of America has. Why don't you?

PRESS: Look. I still wish Al Gore were president, but I accept George W. as my president, Bob. I want you to know that.

NOVAK: Hallelujah.

PRESS: But I'll never accept how he got there. The process was unfair and the court -- they stopped the election and appointed him president.

NOVAK: As I say, you didn't listen to me because even if they had ruled the other way, he would have still been president. The vote counting shows that.

PRESS: No!

NOVAK: Oh, yes it does. Those things that were challenged under the court things, Bush would have won. You know, if you read the papers carefully, Bill, you wouldn't make these mistakes on national television.

PRESS: If you read the whole report instead of the headline, you would learn that if they had done a state-wide recount, which Gore...

NOVAK: But Gore wasn't asking for that.

PRESS: Which he should have asked for...

NOVAK: But that wasn't the issue.

PRESS: You know, Bob, I simply believe that we ought to counts all the votes and the one who gets the most votes should win and Al Gore got more votes than Bush did.

NOVAK: Well, if they had counted the stolen votes in California then Bush would have won a national majority. I can be as silly as you.

PRESS: Should we have this selection all over again?

NOVAK: God forbid.

PRESS: All right. From the left, I'm Bill Press. Good night for CROSSFIRE.

NOVAK: From the right, I'm Robert Novak. Join us again next time for another edition of CROSSFIRE.

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