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THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, CO-HOST: Slobodan Milosevic: wanted for alleged human rights violations. Will the former Yugoslav president ever face charges in a war crimes tribunal?
Today on BURDEN OF PROOF: A top Yugoslav court suspends the process, but politicians say they will press on.
ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.
COSSACK: Hello and welcome to BURDEN OF PROOF.
Accused war criminal Slobodan Milosevic won't be heading to the U.N. War Crimes Tribunal just yet. In a 4-0 decision, Yugoslavia's Constitutional Court says it needs more time to decide if the former leader can be legally extradited. That country's constitution bans the surrender of Yugoslav citizens to foreign courts.
GRETA VAN SUSTEREN, CO-HOST: Yugoslavia's interior minister says the judges are protecting Milosevic, the man who appointed them. And some senior leaders say they'll deliver Milosevic to The Hague no matter how the courts rule. But Milosevic's defense team calls the ruling -- quote -- "the victory of law over politics."
COSSACK: Joining us today from New Haven, Connecticut: Ruth Wedgwood, an international law professor at Yale University; in New York, former Deputy National Security Adviser Jim Steinberg.
VAN SUSTEREN: Here in Washington: Anthony Crocker (ph); former U.S. Ambassador to the United Nations Bill Richardson; and Nina Bang- Jensen, the executive director of the Coalition for International Justice. In our back row: Kerry Sutherland (ph) and Matthew Dardin (ph).
But first breaking news in the federal and state government's case against Microsoft. Let's go to CNNfn reporter Tim O'Brien.
Tim, what does the decision say?
TIM O'BRIEN, CNN CORRESPONDENT: Well, the decision says that Judge Thomas Penfield Jackson went too far in breaking up Microsoft. There is an appearance of bias there. And because of the appearance of bias that his ruling does not stand. It did not find that Judge Jackson's findings of facts or conclusions of law were incorrect, only that the decision was sufficiently tainted. The appearance of bias was so great that it must be thrown out.
The court criticized Judge Jackson for his interviews with the news media and his public criticisms of Microsoft and its witnesses.
The appeals court did not disturb Judge Jackson's findings that Microsoft had violated federal antitrust laws. That's important. Only the remedy is in question.
Microsoft has consistently argued that it did not violate the antitrust law. So it can appeal today's decision to the Supreme Court, if it chooses. And, of course, the Justice Department can also ask the Supreme Court to review today's appeals court ruling.
The Supreme Court doesn't have to take the case if it chooses not to. But it does appear, Greta, that unless the Supreme Court says otherwise, Microsoft is, at the very least, entitled to a new hearing on whether it should be broken up.
And this time around, there will be two major differences. One is that the decision will be made by yet another judge. The court of appeals has essentially taken Judge Jackson off the case. And the second difference is that there's a different administration in power. It was the Clinton administration that brought this case. Now it's up to the Bush administration and the Bush Justice Department to decide whether to continue it.
The new judge, whoever he is or she is, will be wanting the Bush administration's advice about what to do and whether Microsoft should be broken up -- Greta.
VAN SUSTEREN: Tim, before I let you go, is this a unanimous decision from the United States Court of Appeals?
O'BRIEN: Unanimous -- not on the merits of what Judge Jackson said, but on his demeanor, the way he handled the case, his interviews with the press. His decision no longer stands.
COSSACK: You know, Greta, I just want to add that this is -- I know in your experience, this is such a highly unusual decision where you see a district court judge get criticized like this and have a case sent back because of the actions of the judge.
VAN SUSTEREN: And even worse than that -- you know, I practiced in this court. You know, the behind-the-scenes insult that the higher court has now delivered to the lower court is astounding.
Thanks to CNNfn's Tim O'Brien.
And let's go back now to original topic: Milosevic.
Let me go to you Mr. Secretary. Milosevic, whether he gets surrendered or not, the high court in Yugoslavia says, at least not for now. What do you make of that decision?
BILL RICHARDSON, FORMER U.S. AMBASSADOR TO THE U.N.: Well, it's a temporary setback. But I don't think it's the end.
In fact, I think, because the Serbian prime minister, the Serbian Cabinet, reformers, the fact that a donor conference is taking place on Friday to rebuild Yugoslavia, that this eventually will happen, that he will be transferred.
I think under Chapter 7 of the U.N. Security Council, there is an awful lot at stake. He's been charged with crimes against humanity. I think despite this setback, the Serbs, the country has moderated with democratic forces. I think, clearly, if he is tried in Yugoslavia -- because you've got basically judges appointed by Milosevic -- the transition to legal institutions does not happen in that country, that that would be a serious setback.
But I think it's temporarily a problem. But the court has asked for some international legal scholars to examine the situation. I think the Bush administration has played it well. We should continue and attend the conference on Friday, pledge the funds -- a billion dollars that Yugoslavia is going to need -- but not disperse them until Milosevic is actually transferred.
COSSACK: Jim Steinberg, this seems to be -- when you're in law school, we call it conflicts of law, in a sense. This seems to be a conflict between those politicians who are in power now and running the country vs. the court who says that they have acted illegally. What is -- what exactly is the hook? What is the problem between the two in terms of what the law is?
JIM STEINBERG, FORMER DEPUTY NATIONAL SECURITY ADVISER: Well, I think, as Bill Richardson said, you have here the war crimes tribunal acting under the mandate of the Security Council, which -- and Yugoslavia, as the signatory to the U.N. charter, has accepted the idea that when the Security Council acts under Chapter 7 that that has the force of law for all the signatories.
And so I think many, even in Yugoslavia, think there's a strong case, that even with the provisions in the constitution that -- as a member of the U.N., that Yugoslavia is obliged to respect decisions that come pursuant to a Security Council resolution.
I think the second point, as Bill has raised here, is there's a lot of questions about the legitimacy of this court itself. The individuals were appointed in a nondemocratic regime. And so you don't really have the kind of protection where -- that we would have here about feeling that our Supreme Court was acting pursuant to a really valid democratic constitutional process.
COSSACK: Jim, do you think we would be bringing -- do you think that point would be brought up if the decision had gone other way in this case? I mean, it's one thing to sit back here and say: You know, it wasn't brought up in a democratic way and therefore we challenge the court. We are suspicious of the court.
But isn't that really because they came up with an opinion that we just -- the United States doesn't like?
STEINBERG: Well, I don't think that's a question of the United States. I mean, the war crimes tribunal is acting on behalf of the entire international community. It was unanimously created by the Security Council.
And so it's not something that the United States is acting as sort of an individual country expressing their opinion. And this is, you know, fundamental to the legitimacy of the international system, particularly where the Security Council acts here, that it has a different kind of authority than just the United States saying: Well, we'd like it to be this way or we'd like it to be a different way.
VAN SUSTEREN: Ruth -- I mean, Nina, let me go to you.
I'm actually quite persuaded by the decision in Yugoslavia. As much as I'd like to see Milosevic should be turned over, their constitution says that you can't turn over a citizen to a foreign court. That's not such a bad argument to have in the constitution. Why shouldn't the Yugoslavian constitution trump any sort of international action?
NINA BANG-JENSEN, COALITION FOR INTERNATIONAL JUSTICE: Well, they -- as has been described before, the U.N. Security Council resolution establishing the tribunal says that any orders of this court trump domestic law.
VAN SUSTEREN: So -- well, they can go ahead and say that.
VAN SUSTEREN: But Yugoslavia says that: You can go out and make any rules you want. But we say our constitution says this.
BANG-JENSEN: Well, in fact the justice minister and others in the government have indicated that, in fact, they agree with the opinion of most western governments that the state of the law is that the constitution prohibits extradition to a foreign court, but not transfer to a U.N. institution or a U.N. tribunal.
VAN SUSTEREN: All right, Ruth, same question to you -- you know, I just think that this is such a good argument. And I hear Nina's -- how she's differentiating. I'm getting a little bit more persuaded. But if our constitution -- you know, I can't imagine the shoe being on the other foot. If, in the United States, we had that particular provision, I can't imagine we would ever turn someone over.
RUTH WEDGWOOD, INTERNATIONAL LAW PROFESSOR: Well, there's a way that the Yugoslav court can take care of it that handles both their tradition of protecting nationals and yet their international obligations, because there is a distinction between surrendering to an international court and surrendering to another country's court.
There can be proper...
VAN SUSTEREN: So you're saying this is not a foreign court, the way it's worded in the Yugoslavian constitution -- at least that's what I understand you to say, is that you can't turn it over to a foreign court.
COSSACK: It's not a national court, isn't that right, Ruth?
COSSACK: It's not -- the United Nations court would not be the same as turning it over to another country's court. That's the argument.
WEDGWOOD: Well, there's no interpretive tradition in every country to try to read national law in conformance with their international, legal obligations, if you can. And I think it's a fair interpretation here.
So I don't think -- whatever the providence of these judges, they don't have to bend the law to conform to the order of surrender.
VAN SUSTEREN: All right, we're going to take a quick break.
Still ahead: defending Milosevic -- what do his lawyers mean when they say, sending Milosevic to The Hague would amount to legal terrorism?
(BEGIN LEGAL BRIEF)
Two Pennsylvania brothers who run a pair of supermarkets have been charged with mail fraud and tax evasion for allegedly redeeming bogus coupons bought off the black market. The brothers allegedly made $800,000 off the scheme and if convicted face up to 20 years in prison and fines up to $1 million.
(END LEGAL BRIEF)
VAN SUSTEREN: Welcome back to BURDEN OF PROOF. The Department of Justice has issued a statement in connection with the decision out of the United States Court of Appeals in the Microsoft antitrust case.
The Department of Justice has said -- quote -- "We are pleased that the court of appeals found that Microsoft had engaged in illegal conduct to maintain its operating system monopoly. We are reviewing the court's opinion and are considering our options."
Once again, the lawyers of both sides claim they've won but they're not nearly as pleased, I assure you, as Microsoft is.
COSSACK: Everybody wins.
VAN SUSTEREN: Everybody wins, so you've got to love lawyers.
Anyway, let me go back to you, Mr. Secretary. What's the next step for the U.N., if any? RICHARDSON: Well, I think for the U.N., there has to be some patience. The fact that the European Union, members of the Security Council, I think the United States -- the fact that this donor conference is taking place on Friday is very important. This is really the group of nations that's going to rebuild Yugoslavia. That's a source of...
VAN SUSTEREN: And they need a lot of money. They're desperate for money, are they not?
RICHARDSON: We're talking about 1.5 billion. And I think what the United Nations has done -- is set up a sound structure. I think the Chapter 7, crimes against humanity, the fact that in 1993 Louise Arbour proceeded with the indictment of Milosevic -- the next step really has to be internal, within Yugoslavia. I think it's going to sort itself out.
I think that the prime minister, the view of the Cabinet, the reformers there, the fact that this court is appointed by Milosevic, the fact that international pressure is going to be brought forth -- I think we just have to recognize that the former Yugoslavia may need a little time to deal with this. It's not going to happen next week. And we ought to just be respectful of that.
They're moving in the right direction. But the reality is that their legal institutions are such that they cannot adequately try Milosevic within their own country.
COSSACK: All right, Nina, let's jump a step ahead and say that Milosevic does get extradited. What happens at the war crimes hearing?
BANG-JENSEN: Well, he'll be processed and he'll have the opportunity to hire counsel. If he can't afford them, they'll be provided for him. And then he can defend himself. And he's presumed innocent until proven otherwise.
VAN SUSTEREN: How many actual charges?
BANG-JENSEN: I don't know the number, but the charges are basically war crimes and crimes against humanity for actions taken in Kosovo. He and four other top officials of the former government essentially expelling 740,000 of his own citizens because of ethnicity -- they were Kosovo-Albanian -- murdering them -- they have specific charges, estimated at 340 murders.
VAN SUSTEREN: Ruth, what exactly is -- how do you define crime against humanity? How does the law define that?
WEDGWOOD: Well, it's a catchall kind of charge. Some people have complained, historically, that it's too vague. But in this case, it's been made quite clear that it's the deportations and the murders and the expulsions, so that it's vagueness as accounted -- is cured, if you like, by a kind of bill of particulars.
But it's interesting that, way back when, when the Kaiser was going to be tried in 1920, the U.S. secretary of state objected that this kind of charge was too vague.
COSSACK: What -- how do you defend yourself against this? I mean suppose, Ruth, does Milosevic come in and say you know: "All these things happened, but you know I didn't have anything to do with it; or, you know, I certainly wasn't -- didn't give an order to kill anyone"?
WEDGWOOD: Well, the really interesting question at the trial is going to be how much we really have showing that Slobo ordered these things, how much the U.S. is willing to share of its electronic intercept.
VAN SUSTEREN: It's not enough just to be the head guy in a crime against humanity? I mean, you actually have to have your hands in it.
WEDGWOOD: Well, there's a strong legal theory of command responsibility, which we used in the Yamashita trial in the Far East after World War II. But then you oftentimes give the appearance of being unsure of your proof.
What would be nice is if we had some nice, ripe, juicy proof that shows that Slobo really, actually -- if he didn't sign written orders, that he gave oral commands.
COSSACK: Mr. Secretary, have we got that proof? You were there with the United Nations. You probably know what kind of proof we got.
RICHARDSON: Without revealing sources, there is plenty of proof. I think he is...
VAN SUSTEREN: Like what kind: documentary or...
RICHARDSON: Well, there's...
RICHARDSON: You know, there's others involved. There's documentary. Let's just say that I believe there's enough and I believe that this is shared by the international community.
The worry that I have, as chairman of Freedom House, a human rights organization, is if you try this in a Yugoslav court, you know, they're going to just stay with the corruption charges and mismanagement charges. And because the rule-of-law institutions there are not fully developed, you will have a bogus trial. So I think it makes sense to continue the pressure, the push.
RICHARDSON: And Serbia is moving in that direction. They deserve a lot of credit for this, too -- the institutions there, the leaders, this court. You know, this is a Milosevic court. They're all appointed by him.
COSSACK: All right, let's take a break. What would happen if Yugoslavia does not extradite Milosevic? Well, we'll look at some of those options right after this.
Q: Why did the town of Kendleton, Texas file for bankruptcy Wednesday?
A: State officials seized the town's bank account because the town owed $660,000 from traffic fines collected between 1990 and 1996.
COSSACK: Welcome back to BURDEN OF PROOF. Yugoslavia's high court is deciding whether it's constitutional to send former leader Slobodan Milosevic to The Hague to be tried for alleged war crimes. Now, what happens if the court decides against extradition?
VAN SUSTEREN: Roger, let me interrupt for one second. We're going to go to The Hague, where standing by is CNN's Christiane Amanpour.
Christiane? Christiane, can you hear me?
CHRISTIANE AMANPOUR, CNN SENIOR INTERNATIONAL CORRESPONDENT: Well, Greta, you know that the Yugoslav government -- yes, I can hear you. Can you hear me from The Hague here?
VAN SUSTEREN: I can. Go ahead, Christiane.
AMANPOUR: Can you hear me, Greta?
VAN SUSTEREN: I can. Go ahead.
AMANPOUR: As you know, the Yugoslav government -- the Yugoslav government adopted a decree that permits the extradition of suspected war crimes suspects. You know -- and today, the Constitutional Court then decided to temporarily suspend that while it investigates its constitutionality. The court is made up a lot of Milosevic appointees.
However, in the last few moments, a local radio station, B92 in Belgrade, is saying that its sources are saying that Slobodan Milosevic, the former president of Yugoslavia, who is under criminal indictment by this court, may in fact be on his way here.
We're now going to turn and talk to Jim Landale, who is the spokesman of this tribunal. This is fast-breaking news. Do you have any way of knowing right now whether this is happening?
JIM LANDALE, TRIBUNAL SPOKESMAN: Not right at the moment. We've heard the same reports you have. We're busy seeking clarification. And as soon as we do hear something concrete, we'll let you know. AMANPOUR: Is it possible that somebody as significant as the former Yugoslav president, who you've been waiting for all of these years now, could be on his way here without the court knowing? Is that possible?
LANDALE: Well, I think we're checking into it right now. If it is happening, this is amongst a very, very important moment in this institution's history. This tribunal was not set up to investigate and prosecute every single person who might have committed war crimes in the former Yugoslavia. Instead, it was set up to concentrate on the higher-most commanders, the architects of the policies that brought so much misery to the region. And if we succeed in getting Slobodan Milosevic here, the message will be clear and that is that, no person is above the law no matter what position of authority they might have once held.
AMANPOUR: Certainly, there was a great deal of skepticism when this court was set up -- that you would ever get any of the senior people that you were searching for and that you had indicted, the tribunal had indicted. Many people I know thought that they would never see the day that Slobodan Milosevic would be here.
Whether he's on his way or not, do -- are you now sure, given the situation in Belgrade that he will be here at some point?
LANDALE: Yes, I think we're very optimistic now that he will be here if not very soon in the coming days. And it marks a very important time for us. We hope he will get here -- he will arrive. He'll be processed as any other accused in our detention units. And then we hope to have him in court within a week of his arrival to hear the charges against him and to enter a plea of guilty or not guilty to the charges.
AMANPOUR: Now, there's been a great deal of legal wrangling in Belgrade over the last several months. Was there a reason for all this wrangling? Surely, this court takes precedence and they should have just, under international law, transferred him, no?
LANDALE: Well, that is the position we have always maintained. We have always said that it has not been necessary to pass any legislation in order to cooperate with the tribunal. What we've been more interested in is concrete action. And hopefully that is what we will be seeing in the very near future.
AMANPOUR: And when he comes here, what kind of conditions will he face?
LANDALE: He'll be housed in the detention unit, which is a few kilometers from the headquarters here. He will have his own single cell. He will go through the usual checking-in procedure, which involves a medical checkup to make sure that he is healthy, to see whether there are any special requirements he might need and then he'll be in court in a matter of days.
AMANPOUR: And what special procedures are there envisioned for somebody of his stature -- any? Or is he just treated like anybody else?
LANDALE: Well, he's treated like anybody else. But obviously, if there are security concerns, they will be brought in mind and any appropriate measures would be -- will be taken to ensure his safety and to make sure that he is safe and well within the detention unit.
AMANPOUR: Now, Slobodan Milosevic and indeed four other senior and Serbian and Yugoslav officials are indicted for their role -- their alleged role in Kosovo. The prosecutor here has said that she is ready to go to trial whenever he or any of them arrive at The Hague. What, realistically, though, is the time lag between the arrival here in detention and the start of the trial?
LANDALE: Well, when he arrives after his initial appearance, the prosecution will have to disclose all the information, all the evidence that they have against Slobodan Milosevic so that the defense can start to build their case to rebut those charges. That can take some time. And it's impossible at this stage to say exactly with when a trial might start.
AMANPOUR: All right, you go back and try and hunt down that information and let us know as soon as you know. Thank you very much, Jim. Jim Landale, spokesman for the International Criminal Tribunal here in The Hague. And as you know Slobodan Milosevic was indicted, almost -- exactly two years ago on counts of crimes against humanity and the violation of the laws or customs of war for his role allegedly in the Kosovo conflict. He was indicted along with four other senior Serbian security and political officials. And now, the prosecutor is saying that if and when he does come here, she is ready to go to trial.
You heard that there might be a delay in terms of the defense trying to bolster or rather gather their evidence. But also, the prosecutor is saying that she will expand the charges and perhaps seek new indictments against Slobodan Milosevic for his roles in the wars of Croatia and Bosnia in the early part of the '90s -- Greta.
VAN SUSTEREN: Thanks to Christiane Amanpour at The Hague, reporting live.
That's all the time we have for today for BURDEN OF PROOF. Thanks to our guests and thank you for watching.
COSSACK: Join us again tomorrow for another edition of BURDEN OF PROOF. I'll see you then.
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