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Burden of Proof

Election 2000: Florida Supreme Court Hands Gore Unanimous Victory; Manual Recounts Continue as Deadline Nears

Aired November 22, 2000 - 12:30 p.m. ET



CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: In its opinion, the court has reversed the two orders of the trial court. It did so based on longstanding rules that govern how to interpret a general statute containing conflicting provisions, as is the case with Florida's election code.

VICE PRESIDENT AL GORE (D), PRESIDENTIAL CANDIDATE: The Florida Supreme Court has now spoken, and we will move forward now with a full, fair and accurate count of the ballots in question. I don't know what those ballots will show, I don't know whether Governor Bush or I will prevail. But we do know that our democracy is the winner tonight.

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: It is not fair to change the rules and standards governing the counting or recounting of votes after it appears that one side has concluded that is the only way to get the votes it needs.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The Florida Supreme Court has ruled; but how will the Bush campaign respond? Will the Republican candidate's legal team turn to the Florida legislature? And will dimpled chads be used to determine a voter's intent and, potentially, the next president?

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF. As CNN has reported throughout the day, vice presidential candidate Dick Cheney was admitted to George Washington University Hospital overnight, complaining of chest and shoulder pain. Now, we're expecting a news conference shortly from George Washington University.

GRETA VAN SUSTEREN, CO-HOST: Meanwhile, the legal battles in the race for the White House continue. The Florida State Supreme Court handed Vice President Al Gore a unanimous victory last night. Manual recounts are continuing, but the time is counting down on submitting those vote totals to the Florida secretary of state. Governor Bush had a reaction to the ruling just a few moments ago. (BEGIN VIDEO CLIP)

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I am disappointed with last night's ruling by the Florida Supreme Court. We believe the justices have used the bench to change Florida's election laws and usurp the authority of Florida's election officials. We believe the court overreached; writing laws is the duty of the legislature, administering laws is the duty of the executive branch.


COSSACK: Joining us today from Detroit is former chief justice of the Florida Supreme Court, Gerald Kogan.

VAN SUSTEREN: And here in Washington: Judy Siegel (ph), law professor Larry Gibson and Tony Cooper (ph). And in our back row, Hadiza Buge (ph) and Erin Maloney (ph).

Justice Kogan, first to you. Last night in the written opinion from the Florida Supreme Court, the Florida Supreme Court did not outline specific standards as requested by Broward County. Is it beyond the Florida Supreme Court's authority to issue standards, in your opinion?

GERALD KOGAN, FORMER CHIEF JUSTICE, FLORIDA SUPREME COURT: Greta, I think the problem there is that, without a record on appeal from the trial court that heard testimony in this particular matter, the court really is not in a position to rule specifically on what should or should not be counted.

VAN SUSTEREN: You know what I think is so interesting about, justice, is this: is that the whole issue was, how do you determine the intent of the voter; and everyone seems to be struggling like there must be standards.

In the law, we oftentimes asked jurors, at least, to determine the intent of someone acting -- for instance, when you go into the Safeway, did you intend to put the candy bar in your pocket to steal it or was it accidental. So is it so unusual that they wouldn't even talk about the standards?

KOGAN: Well, basically, I think they told the various election officials what ballots they should count. For example, they said first of all they should ascertain what the intent of the electorate is; and I understand that in one of their footnotes they even cited to an Illinois case...

COSSACK: Justice Kogan, I want to talk to you about that case. I just happen to have it here with me.


COSSACK: And what they said was, they cited Depullin versus Milligan (ph), which is an Illinois case, a 1990 case; and they talk about a hand count there and they say the voters did everything which the election code requires when they punched it with a stylus. And they talk about, perhaps the chad did not dislodge from the ballot. Such a failure may be attributable to fault of election authorities and/or it may be the result of the voter's disability or inadvertence to be able to, you know, punch the hole all way through.

Whatever the reason, where the intention of the voter to satisfactory ascertained, that attention should be given effect. Now what does that tell the people who are trying to count the vote? Does that say that you can try and figure out what it is, and if you do, go ahead and do it?

VAN SUSTEREN: Wait a second, Roger. All that does is merely restate the law. The distinction is Broward County actually wanted the court to set specific standards -- hanging chad, pregnant chad...

COSSACK: I understand, but I just want to know from the justice what it is that -- why did they cite that if they weren't trying to give instruction as to how to count those ballots?

KOGAN: I think, essentially, they were telling the officials to use whatever method they feel will show what the true intent of the voter was. Now it may be just a little dot, it may be an indentation, it may be the chad is only dislodged in one corner. They're leaving that up to the local officials.

COSSACK: But Justice Kogan, isn't that sort of so -- that's no standard whatsoever.

VAN SUSTEREN: But Roger, they don't even have -- see, that's the whole point is that, why did they even have to create a standard? First of all, as Justice Kogan pointed out, it was never raised in the trial court before. It just came up sort of as a surprise to the Florida Supreme Court. This is not...

COSSACK: My theory would be is that they're trying to figure out who, correctly, should be the president of the United States and it seems to me that's...

VAN SUSTEREN: No, no, no, no.

COSSACK: They're not?

VAN SUSTEREN: No, no; they are not. The role of the Florida Supreme Court here was to resolve, using the law, the dispute between the two sides. It was not to pick a president, it was not to legislate but -- let me ask you, Larry, about the whole issue, about this whole -- you know, standards.

Should the Supreme Court -- or was that -- would that have been legislative -- should the Supreme Court have given standards -- tell these counties how to determine intent?

LARRY GIBSON, LAW PROFESSOR: I've now read this opinion five times; and a couple things that strike me about it -- one is this whole matter of the principles of statutory interpretation that, perhaps, we'll come back to. But this particular reference in the opinion to the Illinois opinion -- first of all, it's almost a non sequitur, it don't follow what was earlier. My guess is that the court is doing is saying, we're going to see this case again and that's when we're going to deal with this matter, but we're going to send the signal to the folks below as to our approach to it.

My guess is that the court would expect that, first, a state trial judge, a circuit judge, at the contest proceeding would develop a record as Justice Kogan has indicated. The court would look at, what were the precise instructions at the voting place? Did it say, remove the chad, did it say not -- why didn't the chads fall? Is it what the Democrats are saying, is that the ballots are flat and often the holes where the chad is to fall gets clogged? The court, I think, expects the details of why some ballots were not fully perforated to be developed at the trial level; but it's saying, or telling you now in this -- by citing the Illinois case, that we're going to be looking towards trying to count votes.

VAN SUSTEREN: Except, of course, they're under the clock because we're running out of time because December 12 may be the drop-dead date.

COSSACK: No, they have to count.

GIBSON: Oh, no; they left time for the contest. That's why they shortened, I think, the period, so that there would be time for a full contest at the circuit level as well as appellate review by them.

VAN SUSTEREN: I think the Florida Supreme Court ducked the issue of specific standards. I think that they did it for a deliberate reason: No. 1, it wasn't raised below; and No. 2, it would require them to legislate, and they're simply interpreting the law and the law said the canvassing boards are to...

COSSACK: Then why put this in here, if it wasn't...

VAN SUSTEREN: I agree with Larry that it was a non sequitur. It flows, actually, sort of funny in the opinion. But we need to take a break. And when we come back -- I've got the last word on this one...

COSSACK: When we come back I'm not through.

VAN SUSTEREN: The Bush legal team plots its next move. Will it be in Tallahassee or Washington? Stay with us.



BUSH: If Vice President Gore is seeking some common ground, I propose a good place to start. He should join me in calling upon all appropriate authorities in Florida to make sure that overseas military ballots that were signed and received on time count in this election. Our men and women in uniform overseas should not lose their right to vote.

(END VIDEO CLIP) VAN SUSTEREN: Last night's Florida Supreme Court ruling set a Sunday deadline for manual recounts to be submitted to the secretary of state. The fight for Florida's 25 electoral votes, though, is far from over, and a statute in federal law could open a door for the Bush team to the Florida legislature. And in Tallahassee today, we're now joined by the minority leader of the Florida statehouse, Democrat Lois Frankel. And on the phone, Republican state Senator Ginny Browne- Waite.

Let me put up for the viewer is for the screen a copy of this statute that could be invoked in the event that Florida does not get its electors elected in time. Here's what the federal code says. It says, "Whenever any state has held and election for the choosing electors and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct."

Lois, let me go to you. You are in the Florida statehouse, a minority leader; that means a Democrat. Has there been any discussion about invoking that federal law in the event that Florida doesn't make that drop-dead date?

LOIS FRANKEL (D), FLORIDA STATE HOUSE: I've heard that rumor. I heard a statement by James Baker last night on television, but I think it would be absurd and politically unacceptable for the citizens of this state or the country that the Florida state legislature would decide the next president of the United States.

COSSACK: Why would that absurd if they can't have it done by December 12th?

FRANKEL: Well, we live by a rule of law. There's a process going. We've had six million people vote. We're just waiting to get the last few thousand of those votes recounted. The Florida Supreme court has -- which is the highest court in our state -- has said that we need to have it done by Sunday, and I expect that we're going to follow that rule of law.

VAN SUSTEREN: And of course, I like the irony that apparently part of the problem created by the laws legislature, has created a conflict of laws, and suddenly it could end up back in lap of the legislature to decide.

But let's go to the phone, Republican state Senator Ginnie Brown- Waite.

Ginnie, you're on the other side of the table. Have you heard any discussion about whether or not if the counts aren't completed and Florida, doesn't make that drop-dead date of December 12th, apparently the legislature chooses the electors?

GINNY BROWN-WAITE (R), FLORIDA STATE SENATOR: I've heard some discussion about the need for a special session to select the electors. You know, my phone is ringing off the hook of people who say the legislature needs to make this decision if this issue is still up in the air, as the federal law allows us to do. VAN SUSTEREN: What do you make of the fact part of the problem was created by your legislator -- maybe not you; maybe you weren't there. You have a conflict in the statute that the supreme court has tried to sort out last night. You guys created the problem, and now you get to make the decision theoretically.

BROWN-WAITE: OK, basically, I disagree with you, because I think what happened was the supreme court overstepped its bounds and virtually trampled on our rights under the Constitution. The supremacy clause gives us standing for an appeal on constitutional grounds.

You know, the guiding principle that the supreme court cite -- based its decision on, not based on law.

COSSACK: Ginny, there is a Florida statute that will allow you also to select your own electorates, the Florida legislature to select it's own electorates if it's not done by December 12th. It's not just a federal statute, isn't that true?

BROWN-WAITE: Correct, you're absolutely right. And that's why, if it is undecided as of that date, we may have to make that decision.

COSSACK: So even if there is a conflict within the laws as the supreme court has said, as Greta has pointed out, if this thing isn't resolved by December 12th, there's is, within the Florida laws, the right that gives the Florida legislature the opportunity to do this. Whether or not you should or shouldn't, that's a different issue, correct?

BROWN-WAITE: That's correct, and I believe it's in many other state laws also. So if that decision is not made, if it's still up in the air, then the decision most likely will be made by the legislature.

VAN SUSTEREN: Justice Kogan, let me go back to you for a second. Last night, the Florida Supreme Court, which you used to serve on, talked about this conflict in the laws that the legislature has written.

How often is the Supreme Court of Florida confronted with the problem where you have the legislature giving sort of misguided -- or at least giving inconsistent signals as to how to do things?

KOGAN: Well, this is something that the court deals with very, very regularly. And it's the job of the supreme court to interpret the Florida statutes. The legislature passes them, but the mere fact that the legislature passes them doesn't mean that you have to accept it completely as it is, if in fact it is misleading, if in fact the law itself is unconstitutional.

So this is not something which just happens when there's a tie or a near-tie vote in the state of Florida during a presidential campaign. This takes place on a regular basis. This is nothing new for the state supreme court to have to interpret what the law means, and also to decide how you handle inconsistencies within the law. COSSACK: All right, let's take a break. Up next, dimpled chads -- will they determine the next U.S. president? We're going to have a live report from the Palm Beach County courthouse also.

Stay with us.



JUDGE CHARLES BURTON, PALM BEACH CO. CANVASSING BOARD: We're looking at the card in total to see if we can determine the intent of the voter. If the only mark is on that first column, and every other hole is punched out, our interpretation of that has been that does not show the clear intent of the voter. If on cards where a couple, or two or three or four, and we don't have any set numbers, also show indentations, or not quite full punches, then we've taken the position that does show the intent of the voter in that this person obviously had difficultly punching out.


COSSACK: A Palm Beach County court is hearing testimony today about dimpled chads and whether the vote counters can determine a voter's intent.

And joining us now from West Palm Beach, Florida is CNN Miami bureau chief John Zarrella.

John, what's going on down there at the courthouse?

JOHN ZARRELLA, CNN MIAMI BUREAU CHIEF: Well, Roger, they wrapped up just a few minutes ago, and Judge Jorge LaBarga said he would have a written ruling at about 4:30 this afternoon. Basically, the Democratic Party came in here, and they want him to clarify a rule that he issued about a week ago, which left it up to the canvassing board to determine the intent of the voter. And the Democratic Party says: Well, that's fine, but they are not allowing dimpled chads to be counted. And they want the judge to actually set some standards. At one point, Judge LaBarga said, well, who am I to tell these people what they should be counting and not counting? They are the ones that are looking at the ballots.

And that was Charles Burton, Judge Charles Burton actually testified, he is the head of the canvassing board, and it was fascinating to listen to him talk about the real difficulties in determining the intent of the voter.

The Republican attorneys actually sided with the canvassing board today, saying that they felt the canvassing board was doing a fine job in determining the intent of the voter, and that is probably because the vice president, Al Gore, has only picked up three votes here in Palm Beach County, based on the way they are determining the ballots here.

So it has been a fascinating hearing. The judge has said, again, about 4:30 this afternoon, Democrats saying you've got to count the ballots, that's what the law has been in these other states, citing case law from Illinois, and place like that, and the Florida Supreme Court's ruling of last night. And actually saying, the Democrats saying: You've got to set a standard.

So it may well be that Judge Jorge LaBarga is put in a position of either reaffirming that it is up to the individual county here and the canvassing board, or getting in the position where he is setting some sort of a standard -- Roger.

VAN SUSTEREN: Let me ask Larry. We are back to this whole issue of who gets to set the standard, the canvassing board, Judge LaBarga, who is a trial court judge, or the Florida Supreme Court, which I think ducked it last night, and maybe legitimately so.

Larry, should there be a standard? Is intent enough? Is that enough of an assignment for the canvassing board? Can you delegate it? or should somebody be setting a standard?

GIBSON: The courts seem to say that it will eventually be a judicial decisions, that is why I assume it cited the Illinois statute. The interesting thing about the opinion is that in trying to determine the legislative intent, the court applied a principle that the last law is the one to be applied, if they are in conflict. This principle also applies in wills, if a person does more than one will, it is the last will they give effect. The same thing in contracts, if two parties enter into inconsistent contracts, the court will give effect to the last contract.

The courts seem to be saying here that when these laws conflict, the "shall" and the "may" language, that that principle required it to use the last contract -- the last statute.

As to this particular matter, the court, in its opinion, seemed to think that ultimately it was a judicial decision, perhaps initially a call to be made by a board, it seemed to be saying: When it gets back up here after the...

COSSACK: Let me interrupt you a second. We have to go to breaking news in Miami-Dade County, Frank Buckley.

Frank, what is going on.

I'm sorry we have a hearing that is continuing in Florida. Go ahead.


MIGUEL DE GRANDY, GOP ATTORNEY: ... Tuesday you had a 1 percent count. You voted, by majority vote, that there was not sufficient evidence to have triggered the statute to mandate any further action than the 1 percent count.

On Friday, there was a motion for reconsideration heard, and the board reversed itself. In that discussion, there was ample discussion of what the law says, Your Honor, as I said, as quoted on page 96 and 97 of the transcript, stating clearly that in your opinion, sir...

LAWRENCE KING, CHAIRMAN: I'm well aware of what I said, Mr. De Grandy. I don't mean to interrupt, but we know clearly that the vote was taken, and that we ordered a hand recount of all of the ballots in Dade. And in...

DE GRANDY: Sir, either I can argue my client's position or I can't.

KING: We're not here for that. We're here to ask your input with respect...

DE GRANDY: I'm not arguing it to you, but to the other two members, sir.

KING: No, I'm not trying to cut you off. What I'm saying is...


It's clear to me that the board -- and I'm sorry, Mr. De Grandy, we don't do things in a snapshot, we do things over the life of the last week, and you've been involved in each and every one.

And I concur with you wholeheartedly, sir, that the board did what it did at those times. But now we're faced with a new challenge, and we're asking for your input on that.

Thank you.

DE GRANDY: Well, I wanted to speak to that, Your Honor, and unless you prohibit me from doing so, I think my duty as (inaudible) representation requires me to put it on the record, that the finding that was made was a legal finding, was not a discretionary finding.

COSSACK: You have been listening to a hearing going on in front of the Miami-Dade County Canvassing Board, an argument of course about deciding how things should be counted, and what should be counted.

Greta, we are going to finish up in just the few minutes we have left. One of the things we've been arguing about, of course, is the standards, and the lack thereof. And I guess the question that I have to you is: Unless there are more standards, isn't there always going to be this question of how this thing gets done?

VAN SUSTEREN: Well, actually, this is what I don't understand is that the whole idea of determining intent of the voter by the legislature has been cast on the shoulders of the canvassing board. Now, everyone has taken it a little bit farther to say that we have to have more rigid standards, rather than determining the intent. Determining the intent is a standard, that's what they are supposed to do. Every day of the week juries and people are called upon to determine the intent of people's conduct.

So I'm not so sure these rigid hanging chads, pregnant chads, dimpled chads, I'm not sure that's for a court to get into. The canvassing board has its mission, how it decides to carry out its mission is its business unless it becomes unconstitutional.

COSSACK: And speaking of those canvassing board, let's go back to the Miami-Dade County Canvassing board and listen to some more of that hearing.

DE GRANDY: ... based on the trend Gore would win before Hispanic precincts were counted, before Republican precincts were counted.

Again, sir, nothing in the Supreme Court's 40-some page order tells you that to abide by it, you have to violate the law and conduct an illegal count.

Now what we do know, sir, is that the Supreme Court was well aware of what was going on in Dade County. The Supreme Court -- as a matter of fact, a couple of justices talked about Dade County, and when they started the recount. It was very apparent to them that you were conducting a process, and they took that into account when they said you have till Sunday.

And so if you cannot do that, and there is no evidence, as we understand it -- Your Honors and us lawyers -- there is no evidence on the record, other than the learned opinion of Mr. Leahy, that a whole count could not be done; if you had a bigger room, if you had 50 more tables, there is no evidence to say that it is an impossibility. Just the opinion of someone that I do personally respect, but that is not evidence.

And so I will tell you that the Supreme Court knew exactly what you were doing here, knew exactly what your time constraints were, and ruled that you have to do it by Sunday. And so you either do what the law requires, which is a full recount by Sunday, or, sir, I would take you back, and, ma'am, I would take you back to what we are argued to you Tuesday of last week: This should have never happened. There was no evidence based on the 1 percent count that would have triggered the statute that demonstrated errors in tabulation.

Mr. Leahy, who, again, I respect, said as much when he voted against the motion for reconsideration, who voted against a full recount. Let's do the right thing. Let us go back to that Tuesday. Let us stick to that finding of this canvassing board, and let's, at this point, certify the best and most accurate results that you have.

Thank you.

KING: Thank you, Mr. De Grandy.

Mr. Young?

YOUNG: May it please the board. The best is exactly what I think the board should be about, and the best is to have a full summed count.

What we know as evidence, what we know from the records of this board, is that there are some 10,750 ballots cast that have not been tabulated. That is 10,750 people went to the polls, and their votes have not been cast. Everyone else's vote has been tabulated. And I would ask this board to carefully review with its attorney the law. As we read the law, it is very clear that where the total is not correct -- that is, there is an error in the total because of the human nature of our interface with machines -- that if the manual recount indicates an error in the vote tabulation, which could affect the outcome of the county canvass, the first statutory duty is to correct the error -- that is, to recount the 10,750 votes. And when I say "recount," I now mean count for the first time. There are 10,750 citizens out there whose vote has not been seen by man, woman or machine. That is simply an error. It's a systematic error. It's nothing more than the way machines and the process is designed.

I believe that the statute tells you to correct the error. And the statute says, recount the remaining precincts with the vote tabulation system. The vote tabulation system is the machines. So what this board decided this morning, as I think we said this morning, was lawful, proper, and I think, a fair understanding of the law, which I know this board, as an administrative agency, would follow.

I think that the law guides us precisely as to what to do. The question then is how to do it. And I believe that the problem has really arisen out of logistics. Let's not have the logistics effect or disenfranchise any voter.

I believe that the best way to proceed efficiently, effectively is precisely how Mr. Leahy and others have suggested, and that is that it can be done in the tabulation room. The question I think is then one of simply ensuring that all concerned see a process that is transparent.

Well, that seems to me to be something that we can do. For example, in a northern county, Volusia, Judge McDermott had one pool camera in his counting room and allowed everyone to share off that, so the media saw precisely what the board was doing.

We can also have microphones so that each and every word that is said in that room between now and Sunday can be heard and recorded by whoever wants to record it. We can also designate pool reporters, so that again, each and every member of the press and the public sees the process. We have representatives.

I have no concern, and I don't believe that anyone who looks at this problem, has any concern over the efficacy, the integrity of the process that we would undertake, so it is simply one of transparency.

Are we not going to count 10,750 votes for want of a process of disseminating information? Well, I believe that this board can overcome that quickly. I do believe that having a pool reporter, pool cameras, microphones, we can have court reporters, we can have anyone there to memorialize and to make the world assured that this process can go forward. I think that can happen.

What I certainly would urge this board is to proceed forthwith.

My experience in recounts in large states, in statewide recounts, is that where there is a will, there is a way. And I believe that 10,000 votes can in fact be counted accurately between now and Sunday. We will become dear friends in the process because we will spend a lot of time together. But I do honestly believe that it is possible if we -- the lawyers, the media, concerned citizens, protesters, or who ever -- allow you to do your job. And I believe that it can be done.

The process does have the power to count these votes. And I would urge you to proceed in a manner that is lawful, appropriate and the right thing to do. Thank you.

KING: Thank you, Mr. Young.

I want to thank both representatives of their various parties for their persuasive and meaningful arguments here today.

Mr. De Grandy, just one point of clarification: I know you all like to say that to us, so I'm going to say it to you.

When the vote was taken with respect to the two-to-one, at that time, as you recall, Mr. Martinez, who was on behalf of the Republican Party, said to this board, and I'm sorry if I don't quote him exactly, that there are no deals made in this county, that we don't make deals, that we wish only to see a full, complete, accounting. Your own Republican Party wanted a hand recount of the ballots -- if it were to be done, if it were to be done -- an entire hand recount of that ballot. And I think if you will look at page 17 and 19, you will find I concurred with him.

What I did not -- and we're not getting into why I did what I did then -- we've moved radically from that. Mr. Leahy and Judge Lehr and I discovered, like the rest of the nation last night around 9, that the Supreme Court had said, yes, that the recount may go forward.

And what I envisioned, sir, and I think what the board envisioned, was that the hand recount would go forward, as we had planned. It became evidently clear this morning around 6:30, 7:00, when we arrived here to start our task for the 8:00 session, that that was going to be, as David has already said, "a physical impossibility," because of time.

You cannot count the remaining hand ballots in this county by Sunday.

Therefore, the only alternative that this canvassing board had to meet the needs of the people and meet the needs of the parties was to try to adopt what was originally suggested and discussed in open forum with you present...

VAN SUSTEREN: We've been listening to a hearing down in Miami- Dade Canvassing Board. The ongoing dispute about the hand count, exactly what they will count and what they will not. But the headline I suppose is the news that they say it is a physical impossibility to finish the hand count down there by the deadline set by the Florida Supreme Court.

And that's all the time we have for BURDEN OF PROOF today. Thanks to our guest and thank you for watching. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT


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