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CNN Live At Daybreak

Interview of Barry Pollack, American Bar Association

Aired December 14, 2001 - 06:34   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.
CATHERINE CALLAWAY: For some insight into the legal implications of the bin Laden tape, we turn now to an expert in the field of criminal litigation, Washington attorney Barry Pollack. He chairs the American Bar Association Sub Committee on federal rules and procedures. He's joining us now live from our bureau in Washington, D.C. Thank you for getting up so early this morning to discuss this with us. First, you know, is this enough to convict bin Laden in a military tribunal?

BARRY POLLACK, AMERICAN BAR ASSOCIATION SUB COMMITTEE: Good morning, Catherine. It's certainly close. There's no question in my mind that the tape shows that he had advanced knowledge of the attacks, but that is not itself enough. It would have to show that he agreed and had some role in the participation in carrying them out. And I think the phrase where he says we sent them to America is the phrase that a prosecutor is really going to zero in on to prove just that.

CALLAWAY: Yes, I was going to ask you what the most incriminating statement in your opinion was and just your impressions of the tape in general.

POLLACK: Well that is I think the most incriminating statement where he says we sent them to America and we revealed the plan to them or the operation to them. The entire tape, that to me is the portion where he really reveals not just that he knew that this was going to happen, but that he had a role in it and indeed maybe a key role in it.

The tape itself, of course, is a very poor quality, even though a couple of translators, at this point, have agreed on what it says. Obviously there would be some dispute about that and also the language is very tricky. When he says "we," does he mean the royal "we" or does he really mean himself.

CALLAWAY: So do you think the translation issues will be the biggest problem or just why bin Laden would make the tape? I'm trying to figure out what else do you need besides a videotape of someone talking about the plan and their thoughts of how it was executed.

POLLACK: Well, as a criminal defense attorney, what you're going to want to do is break down the tape. You're going to want to look at each segment. You're going to want to look at each word and parcet (ph) very carefully. Translation is certainly going to be an issue. There are places where the tape is not that audible and you might disagree about what is said during those portions.

You might disagree about what it means to say we did something. Does that mean that bin Laden did it or does it mean that people that bin Laden knows and associates with did it. And then of course, even if you were to interpret the tape as saying that he's claiming responsibility for it - that doesn't mean that he's being truthful in the tape. We've seen all sorts of terrorist attacks where various organizations or various individuals - quote - "claim responsibility" for it after the fact, because it enhances their stature in the world in which they deal. That doesn't necessarily mean that they actually had a role in carrying out that offense.

CALLAWAY: Would the tape even be admissible? Would there be some problems in how the tape was acquired?

POLLACK: Well what you would need is you would need somebody to authenticate the tape. You've got to demonstrate that it is, in fact, a real tape. But once you're able to do that - if you're able to do that, then it certainly ...

CALLAWAY: How would you do that?

POLLACK: ... is admissible.

CALLAWAY: How would you do that Mr. Pollack? How would you make the tape admissible? What would you need?

POLLACK: Well, what you would need is you would need expert testimony that this is a tape that has not been doctored with, and even then, it's difficult if you don't have somebody that was present when the tape was made that can testify it is in fact an accurate reflection of what took place. Without that, I think that it would be subject to an attack by the defense.

CALLAWAY: You know, there would have to be a lot of questions raised on why bin Laden would make a tape in the first place with bombings underway and he actually did at least one interview since September 11th - so why not admit then that he was involved in the attacks, so you know, there would have to be lots of questions on why bin Laden would make that tape.

POLLACK: Well, it's certainly very difficult to understand what it is he's thinking or what his motivations are.

CALLAWAY: But wouldn't you have to establish that to admit the tape?

POLLACK: Well, no you don't. You don't have to establish someone's motive. You just have to establish, in this case, that they said it. If they said it, it is an admission, and it is admissible evidence. But it's only going to be part of the picture. The government, of course, is not going to try a case based solely on this tape. If they have other evidence, which I would imagine that they do, linking bin Laden to the attacks, the fact that he sent funding to the individuals who carried them out or provided training to the individuals who carried them out. CALLAWAY: And ...

POLLACK: What this tape does is take away the defense that he didn't really know what it was that they were planning on doing when he gave them money or he gave them other assistance.

CALLAWAY: And quickly we're running out of time, but was the U.S. correct in releasing this tape? Will it help or hurt the case?

POLLACK: I don't think it's going to affect the case one way or the other. Once this thing goes to court, whether it goes to a regular court or a military tribunal, the evidence is going to be heard in that forum and bin Laden is going to be judged in that forum with that evidence. I think this is more a matter of the court of public opinion, which is of course also very important to the United States at this point.

CALLAWAY: Barry Pollack, Washington attorney. Thank you very much for getting up so early this morning and discussing the tape with us.

POLLACK: Thank you, Catherine.

CALLAWAY: And you can read the transcript for the bin Laden tape at CNN.com. It's linked right off the main page and while you're there at the Web site, you can check out the message board and see what other people are saying about the tape.

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