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Should the Moussoui Trial be Televised?

Aired January 10, 2002 - 21:00   ET


LARRY KING, CNN HOST: Tonight, fresh from of Afghanistan, "Newsweek" correspondent Colin Soloway. Just home from the war zone, too, CNN correspondent Nic Robertson. And in Kandahar where the transfer of battle detainees triggered gun fire, CNN's Bill Hemmer. Hope he's keeping his head down.

And then laying down the law, "Court TV" anchor Nancy Grace former prosecutor; defense attorney Mark Geragos; Jeanine Ferris Pirro, former judge now D.A. for Westchester County; and Julian Epstein, former Democratic counsel for the House Judiciary Committee.

Plus, an update on Lisa Beamer and her beautiful new baby. They're all next on LARRY KING LIVE.

We begin in New York with Doug MacMillan. The executive director of the Todd M. Beamer Foundation. The foundation's Internet address is, by the way, is Doug, you were a friend of Todd's, were you not?

DOUG MACMILLAN, TODD & LISA BEAMER'S FRIEND: Yes, Todd was my best buddy. And I miss him quite a bit.

KING: And what's your involvement with the foundation, and how does it work?

MACMILLAN: Well, I'm the executive director of the Todd M. Beamer Foundation. And our foundation is set up to provide long-term assistance to the children who lost one or both parents on September 11. And we hope to pride ourselves on being a foundation of honor and integrity and we look forward to being there for the long-term.

KING: And it goes directly into trust funds for children?

MACMILLAN: We're working on that now. We're really focusing on probably the health care issue for the children. We think that's a going to be a major issue. But we're surrounding ourselves with some top notch people to look at what the needs are going to be for these children in the next 15 to 20 years.

KING: And how is Lisa doing? The baby was born, we announced it last night on this show, Morgan Kay is seven pound, 21 inches. How's she doing today? MACMILLAN: She's doing great. I have a beautiful new niece, so to speak. And both Lisa and the baby are doing extremely well. And I wish I could be with her right now. But Lisa's doing great, her great spirits and we're just honored to have a new baby into our family.

KING: When does she go home?

MACMILLAN: Probably sometime tomorrow. We're not sure of the time, but Lisa's anxious to get home. And her brothers are anxious to meet the new little baby, and they can't wait to have Morgan come back to them.

KING: Going to share you a quick sound bite from Lisa's appearance on this program on Christmas Eve, when we asked her whether she knew if her new baby would be a boy or a girl. Watch.


LISA BEAMER, WIDOW OF TODD BEAMER: We had the ultrasound in August, which I'm really glad that Todd got to see, but we didn't find out. With our first two we were surprised, and we just thought that worked out well. So we decided to go the same route this time.

KING: Are you leaning toward wanting a girl, having two boys?

BEAMER: In some ways I just want a boy, make it easier. They could all just wrestle together. But a girl would be a nice thing, too. So whatever it is will seem like the right thing when it comes, I'm sure.


KING: Doug, how do you think Todd would have reacted to finally having a daughter?

MACMILLAN:: Probably a lot like, myself. I'll be selfish and say I wanted a little girl, and I know -- Todd and I actually talked about it. A few weeks ago we were in a car ride out to Lancaster, Pennsylvania and I asked him that question, and Todd had a great answer. And he said, God always gives you the perfect gifts. And whatever he gives me is exactly what we need. So he would have been ecstatic, whether it was a boy or girl, but I think a little girl would have been all that much more special for Todd.

KING: Where were you when you heard about the crash?

MACMILLAN:: I was on the New Jersey Turnpike heading home, and kind of had this sense of foreboding. I knew Todd was in the air, and my wife was in the air at the same time, as well. She got diverted to Newfoundland. And I quickly got home and kind of surmised, knew that Todd was traveling. And kind of put things together and figured out he was on Flight 93. So I found out rather quickly.

KING: How do you explain how well Lisa carries herself?

MACMILLAN: You know, I've known Todd and Lisa for a number of years, and the Lisa that you see on TV is the same Lisa that I've always known. She has an unbelievable sense of grace and poise and dignity that transposes to the American public via television. And the bottom line is she has a very strong faith, and that faith has enabled her to be the type of person that we see. It sustains her and it gives her hope and gives her that presence of who she is that we see almost daily now on television.

KING: How are the two boys doing, Drew and David?

MACMILLAN: They're great. I saw them this morning for a little bit. I stopped by, and I walked in the door and Dave came running over and said, "Hi, Uncle Doug." And they were playing with makeshift hockey sticks in the kitchen. And I asked Dave if he was excited that he had a little sister, and he said he was. And, you know, Drew is -- Drew is Drew. He's a great little kid. He's a little too young to really take in what's going on, but he's doing phenomenally well. I know they're going to be excited to have a little sister around the house.

KING: I understand, after we made the announcement last night and the statement that in lieu of gifts to them they wanted people to contact the foundation that it kind of broke the machines down. What happened?

MACMILLAN: Well, Larry, we are receiving 500,000 hits per second. It's an amazing, staggering number. You know, it seems that the whole world has been waiting for the birth of this child. I know when Lisa was on the show with you, she was with Queen Nor. And Queen Nor came into the green room, and said, Lisa, this is the baby of hope for this world. And we kind of said, that's an amazing statement to be made. It evidently seems to be true, because the public has been clamoring to get more information. And our Web site has been overwhelmed by people wanting to just contact us and find out more about Lisa.

KING: I was told it was almost instant last night.


KING: As soon as we said it, bam.

MACMILLAN: It was absolutely incredible. And I logged on, right after you made the announcement and I couldn't get on the Web site. So that was just quite amazing.

KING: And I understand the president called today.

MACMILLAN: The president did call. Actually, his people called me today to get in touch with Lisa. The security is very tight at the hospital where she's staying. They called to say how do we get a hold of her? He will be calling her personally tomorrow morning.

KING: I see. So he didn't make contact, but he will contact tomorrow.

MACMILLAN: He will. He mentioned Todd today and the birth of the baby, and he wants to speak with her directly. That will be done tomorrow morning, sometime.

KING: That's great, Doug. And let me give it again: And again, the money does not go to Lisa, right, and her children?

MACMILLAN: That is right. It's going to go to the other children of September 11, to those that lost one or both parents on that day. This foundation and this money coming in is for them.

KING: Thank you very much, Doug. We salute you.

MACMILLAN: Thank you. I appreciate it.

KING: You are watching LARRY KING LIVE. Tomorrow night, John McCain is here. We'll be taking -- he'll be just back from Afghanistan. We'll talk a lot about that and we'll talk about Enron, too. That's kind of in the news.

When we come back, we'll get an update on Afghanistan. And then a major discussion and debate about whether we should televise the trial of an accused terrorist. Don't go away.


KING: Welcome back LARRY KING LIVE. Joining us from New York is Colin Soloway, the correspondent from "Newsweek," just back from Afghanistan. In London is Nic Robertson, CNN correspondent. He's just back in London from Afghanistan. And in Kandahar, Afghanistan is Bill Hemmer, CNN anchor and correspondent.

Bill, we'll start with you. While they had that air transfer today of the first contingent of the detainees going to Guantanamo, there was fire and arms and blast. What was going on?

BILL HEMMER, CNN CORRESPONDENT: A whole lot going on, Larry. The best we can tell you right now. We thought the headline, basically would be the detainees, the first group of 20 leaving here from Kandahar. To make a long story somewhat relatively short, the 20 were loaded on board of a C-17, under very tight, very deliberate security. But as that C-17 was moving toward the runway, we noticed a flair in the distance off the northern edge of the runway. We now understand that flair was shot by elements of al Qaeda or elements possibly of Taliban working in the area.

They threw up those flairs, Larry to illuminate the area for snipers operating apparently in the mountains surrounding the area. They say it could have penetrated in three different areas here.

Over the next three to three-and-a-half hours, operations were completely shut down here. Members of the U.S. Marines 101st Airborne Division, the U.S. Army, took cover, defensive positions. We saw a couple of Cobra helicopters in the air. They also report receiving small-arms fire against the pilots. However, the pilots say they did not return fire. In a nut shell, Larry, no injuries but a lot of questions as to how the security was breached tonight here.

KING: Nic Robertson in London, what do you make of this?

ROBERTSON: Well, Larry, it's interesting that this should happen on the first night when al Qaeda prisoners being transported. Just between the Kandahar airport and the city, there is a ridge line, a small line of hills, and that's quite a strategic location. That is to the north of the airport, and also very, very close to the runway where -- just where planes take off and land.

A main road goes right by. It's the main highway from Kandahar to Pakistan. So it's quite possible even for people to drive up along that roadway, park a car and try and break in through the perimeter or through the sort of outward -- outside perimeter of anti-Taliban forces that maintain the outward perimeter. But it is significant that they've chosen to do this on a very significant night when the first of these al Qaeda prisoners are being taken out of the country, Larry.

KING: And, Colin Soloway in New York, what's your read?

SOLOWAY: Well, as Nic says, it is very interesting and obviously very significant. I think we'll probably have to wait and see whether this was something that was directly planned with, you know, at this aircraft, at this incident. But, you know, it's no secret that there are still plenty of al Qaeda guys running around in Afghanistan. You know, if they had short-wave radios, it's possible that they knew that this aircraft was going to be taking off today.

You know, what they were planning to do, it seems difficult to say. If it was just sniper fire, it seems unlikely that they were going to take down an aircraft to do that. It's difficult to say. Bill is on the ground and he, you know, hopefully is getting better information than we are.

KING: By the way, Colin is, of course, the man who has been on this program a number of times, who interviewed John Walker. Still haven't decided what to try Mr. Walker on. But he's gotten so famous that last night he was on Letterman and we're going to show you a clip of that. Watch.


SOLOWAY: He could have been from a Pakistani tribe, sort of very Aryan features. And so, I -- you know, and he was also, as can you see in the pictures, he was covered with, you know -- he had dirt. His face was burned. And he was very difficult to tell. But then I looked at him, he looked at me. And I asked him, I said, are you an American? He said, yes. And we started talking.

DAVID LETTERMAN, HOST: Just like he's there on spring break or something.


SOLOWAY: One hell of a spring break.

(END VIDEO CLIP) KING: Colin, when are they going to charge him? Do you know?

SOLOWAY: We still don't know, Larry. I mean, only just today, I was reading that some defense department officials are saying that he's not going to be sent to Guantanamo Bay. It's still not clear where he's going to be sent. And I've not heard anyway whether or not he's going to be charged under military tribunal, whether he'll be tried under uniform code of military justice or whether he'll be tried in the criminal court.

And obviously, these three different options -- will indicate from these options, you know, what sort of rules of evidence can be used, I would imagine. But obviously, your other guests here can give you a much more educated opinion on the details of those different procedures than I can.

KING: And, Nic Robertson, I understand after all these months, you're finally going to get to come to New York and go to ground zero. Is that true?

ROBERTSON: That's right, Larry. Next week I should get to see ground zero for myself for the first time. I was in Kabul when the planes flew into the World Trade Center. And it was quite something to witness the spectacle from so far away. I was very, very removed from it because there's no television in Afghanistan because the Taliban rules we couldn't even see images of it until I left Afghanistan a couple of weeks later. So the impact took a long time to develop on me. Four months inside Afghanistan to go to where all this started from is going to be quite something, Larry.

KING: Any update, Bill Hemmer, on that military plane crash yesterday?

HEMMER: Yes, Larry, they're looking at it right now. About 24 hours ago, a team of investigators left here from Kandahar headed to that rough and steep terrain of southwestern Pakistan. The cause unknown right now.

Also on Thursday, Larry, search and rescue crews did arrive at the site but they weren't able to stay long based on the terrain that they encountered there. No cause given but one Marine says it's highly unlikely, in his words, highly unlikely that plane was brought down by enemy fire. But, again, is a sad day for any time that the U.S. loses men and women over here. Six men on that play plane, Larry, one woman, the first female to die in Operation Enduring Freedom.

KING: Colin, what do you make of the Pentagon's control or lack of control or what's your view of how they handled the media in all this in Afghanistan?

SOLOWAY: Well, Larry, I'm not sure how long you have. You know, I found -- again, I'm looking at this from the field, not from sitting in Pentagon press conferences. But I found that certainly, you know, for the vast period -- for the length of the war at least until the past couple weeks, you know, the Pentagon seemed to keep the -- seemed to have the approach to try and basically keep the press from finding out -- keep the press from finding out anything on an independent basis and that they seemed to take the attitude that we should simply take what they tell us and report what they tell us and that, you know, when it came to -- if it came to actually going out and reporting on anything, even when we found -- even when we would run across information that was potentially sensitive information, sometimes we would want to check with them and say, look, we're concerned about operational security, can you give us someone to talk to just to, you know, warn us off in case this could potentially jeopardize operations that we don't know about, the Pentagon refused.

Admiral Quigley, on one occasion, when I asked him about this, said -- he said no, we're not going to give you the opportunity to basically ask us to warn you off on stuff. If it sounds good, run it. And I think, you know, guys on the ground have orders in some cases not to talk to us. Obviously, special operations people have security concerns and they're ordered not to talk to us, and that's -- you could say that's understandable. But I found it remarkable that the Pentagon brass and the guys back in Washington were basically telling us, go ahead and run stuff, you know, go ahead and run stuff, even if you're not quite sure whether it's dangerous or not.

KING: Nic, do you concur?

ROBERTSON: Absolutely. With what Colin says is what we found when we were inside Afghanistan. When we did come across special forces, they told us not to take their pictures, to respect the fact that we needed to protect their security by doing that. And that was something we went along with at the time. This was their request. And it seemed reasonable under the circumstances.

But at the same time, when you really want to ask them for information and ask them what's been happening, we came across one group who had been involved in a battle for Kandahar airport for a week and you really want to find out what's happened, what's been going on, what are the dynamics of battle been. They just locked up. They wouldn't say anything. And the same, again, when we found another group later on in Kandahar, they just didn't want to say anything. So it was frustrating, understanding for operational reasons not to take pictures. But information, we'd like that.

KING: And, Bill, we're running out of time. When do you get to come home, Bill?

HEMMER: That's always the big question, isn't it? No telling right now. A good chance within the next week. But I do not leave from here until a replacement comes in, Larry. So I'll man my post until we get relief here in Kandahar. I've been here almost a month now, going on the better part of four weeks. That's the best of my recollection. It's been a long night, Larry.

KING: Thank you all very much, three top journalists on the scene.

As we go to break before we meet our panel, there was a memorial ceremony today to honor Army Sergeant Nathan Chapman. His parents were on this program last week. The first U.S. soldier to die in combat in Afghanistan -- here is the playing of "Taps" at that memorial. We'll be right back.


KING: On October 15 in federal court, the trial will be held for Zacarias Moussaoui, who is charged in the -- there you see his picture. He is charged in the conspiracy to commit the acts of September 11. That trial will be judged by U.S. District Judge Leonie Brinkema. And she heard argument on televising that trial yesterday and she may rule as early as next week.

To discuss that, joining us from New York, Nancy Grace, former prosecutor, anchor for "Trial Heat" on Court TV; here in Los Angeles, Mark Geragos, the famed defense attorney; in New York, Jeanine Ferris Pirro, the district attorney for Westchester County, a former judge herself; and in Washington, Julian Epstein, former chief minority counsel for the House Judiciary Committee.

The Court TV organization, Nancy, is one of those media groups pressing for televising, is that correct?

NANCY GRACE, FORMER PROSECUTOR: That's right. And a lot of people have compared this, I think wrongly, to the O.J. Simpson trial, which did become a circus. But, Larry, as you know, I originally wanted a military tribunal. But since Bush is insistent this is going to trial in a regular courtroom, why not, if you're going to have a regular trial, open it up to all Americans. You know, Court TV has covered over 700 trials. Very few of them turned into a circus.

KING: And other news outlets are joining you in that. Is that correct, Nancy?

GRACE: That's right.

KING: Mark, what's your position?

MARK GERAGOS, DEFENSE ATTORNEY: I think they should televise it. I think there is -- the interest is overwhelming. I think the only limitations that I would have is for any kinds of pretrial hearings, that they not televise the pretrial hearings, especially if it has to do with evidence that's to be excluded or any other kinds of suppression motions or things of that nature. But other than that, I think I would -- I'm in favor of them doing it.

KING: The attorneys for Mr. Moussaoui also wants the jury sequestered, if the trial is televised.

GERAGOS: I think that's going to be ultimately the only way that they can try this case. And I think a lot of jurors will want that. I mean, if you are on that trial, I think you're going to feel as if it's better if you are sequestered. There's going to be such overwhelming emotion surrounding that trial, that the last thing you want to do is be smack-dab in the middle of the community.

KING: You're the former judge on the panel, Jeanine. How would you rule?

JEANINE FERRIS PIRRO, WESTCHESTER COUNTY D.A.: Well, I think it's very important that we have open criminal courtrooms. And by making a decision to have Moussaoui tried in a civilian criminal court, essentially we have guaranteed him to the right to an open trial. And cameras are nothing more than a reflection of the advanced technology that we experience.

Historically in this country, courtrooms have been open to the public. And now it should not be limited to those 50 or 60 people who wait in line long enough to get into the courtroom. But I think there's a more important issue here, Larry, and that is the fact that we should be and showcase to the country and the world the fact that we will accord all of the rights that are inherent in a trial in a civilian criminal court to a foreign national. And all of those people who are complaining about not having cameras in the courtroom, for example, saying that people, you know, people won't remain anonymous. I mean, there are ways to deal with that. And as a judge in the past, I have. You can obscure the faces of witnesses. You can make sure that the jury selection is anonymous.

All of the complaints that are made are ones that can be remedied. But what we're dealing with is a federal statute right now that says that cameras are not allowed in federal courtrooms. And so the judge now has to essentially overrule that statute or as Congress is attempting to do now, legislatively overrule it.

KING: All right. Julian, the federal prosecutors say everyone is not entitled to observe trials. They have concerns for the security of people, witnesses, judges and the like, and potential disruptive. Where do you -- so far the panel here is three to nothing in favor of televising. How do you come down?

JULIAN EPSTEIN, FORMER JUDICIARY COMMITTEE COUNSEL: Well, what would this show be, Larry, if there wasn't some dissent on it? I actually side with the prosecutors in this case.

KING: Really?

EPSTEIN: You know, I had to deal with this -- yes, I do. I actually had to deal with this issue a number of times at the Judiciary Committee when we considered making changes in the federal statute.

There are a lot of cases to be made for cameras in the courtrooms. I think when the cameras were introduced in the House of Representatives in the 1970s, it had some very solitary effects in terms of educating the public has to how our legislative branch operates. I think as the three previous panelists said, some of those arguments can be made for cameras in the courtroom on a general basis. The judges, the judicial conference, the Conference of Federal Circuit Judges, has had a very, very strong policy against it.

And let's just put their policy out there so people understand it. I mean, they really believe that once you introduce cameras into a courtroom, you utterly change the atmosphere of the courtroom, that witnesses can be easily intimidated by the presence of cameras. Some witnesses can actually start playing to the cameras. The attorneys actually get more histrionic in their presentations and even judge behavior changes. In fact, there was a pilot project that the judicial circuit ordered years ago. It was federally authorized, and 64 percent of the judges and attorneys involved that were involved in the pilot project said that there were some real changes in behavior as a result of the...

GRACE: Julian.


EPSTEIN: Let me tell you why I disagree with...

KING: In this particular case, why not?

EPSTEIN: Generally, I disagree with the judicial circuit. Here, I think there is a real potential, given the nature of the threat by the al Qaeda network, that the witnesses in the trial can be significantly intimidated. And so I generally do agree. I'm not concerned about Moussaoui giving out public signals and al Qaeda sending signals through the television networks. I think there's a real potential for intimidation of witnesses. And so I think in this case, I would have an exception to my general position, which there should be cameras in the courtroom and say there shouldn't be.

KING: Nancy, why is he wrong?

GRACE: Well, when he said lawyers become more histrionic, you know, if you are a trial lawyer, you know lawyers grand stand when ever possible, camera be damned. You can't stop them. A camera is not going to change that. And let me tell you a little about this judge -- very, very firm. A lot of it depends on how the judge chooses to conduct the trial. So that will be the difference in this trial and other trials that do get...


KING: One at a time.

EPSTEIN: The judge clearly has the ability, as Jeanine pointed out, to blur the faces of witnesses that don't want to be televised. They do a lot of things to control it. But I think, you know, if we go back to the words that you used just about a month ago, Nancy, on this program, where you were complaining about the public spectacles of trials if we were to go the civilian court system. And you were complaining about people sending...

GRACE: No. No. I thought he should have a military tribunal.

EPSTEIN: Repeatedly, you complained on this program, Nancy, about the ability of al Qaeda members to send signals over the airwaves. You repeatedly did that.


GRACE: No, I did not complain about signals over the airwaves.

EPSTEIN: Oh, you didn't.

GRACE: No, but I do still think...

EPSTEIN: Oh, yes, you did, Nancy.

GRACE: I do still think that there should be a military tribunal. But if President Bush is insisting that this is going to be a civilian courtroom, then it should be open to the entire country.


GERAGOS: As a practical matter...

KING: Mark, hold it -- Mark.

GERAGOS: As a practical matter, the only way this is going to be televised is if Congress changes the statute because the culture...

KING: She won't rule? She can't change it?

GERAGOS: The culture is -- well, she could, but she won't. The culture in the federal courts is such that judges -- it's just anathema to have a camera.

KING: She's going to rule against those?

GERAGOS: She's going to rule against television. I'm telling you right now. The only way there's ever going to be a camera is if there's some kind of a mandatory provision that's enacted by Congress.

KING: Before we get a break, Jeanine, do you agree that's the way she's going to rule?

PIRRO: Well, she probably will rule that cameras should not be allowed in the courtroom. But, you know, if we fool ourselves into thinking that, you know what, if we don't televise this case, then people won't be injured, then we're being very foolish in our approach because anyone can sit in that courtroom. Anyone can sit there and identify and see the people who are sitting in the courtroom, the witnesses and the jurors. Televising it simply shows the rest of the world that we have sufficient evidence, that we're willing to try foreign nationals and give them rights far beyond what they would experience in their own country.

KING: All right. Let me get a break. We'll be right back. Our panel is with us the rest of the way and we'll be including your phone calls on this edition of LARRY KING LIVE. Senator John McCain tomorrow night. Don't go away.


KING: We'll be going to calls shortly. Julian, you agree that if we poll the country, you would be in the minority? EPSTEIN: There's no question about that. I think that's correct. I'm generally for cameras in the courtroom. I think that the judicial conference is generally wrong. To I think, to use Nancy's words from a month ago, this is is a highly unusual circumstance.

Mark is also correct, however, that the judge has got to rule against this for the following reason -- she doesn't have the authority under the rules that are where the judicial conference essentially establishes these rules, she doesn't have the authority as a sitting federal district judge to say that the camera will be let in, unless she determines the judicial conference policy unconstitutional. It's the only way she can do it.

GERAGOS: And the chances of that are slim and none.

EPSTEIN: That's right, Mark. But not only are the chances slim to none. The Supreme Court has already ruled on the questions of the constitutionality of having cameras in the courtroom, whether the public has a right, and the Supreme Court has said no, as have the circuit courts.

So, I think the chances as Mark says are slim to none that she just doesn't have the authority.

KING: Nancy Grace, you're up against it, right?

GRACE: Yes. But another thing is, I would like to see it for myself. I feel deeply affected by what happened on September 11. I would like to see it for myself, not hear some journalist's interpretation of what went down in the courtroom. And another thing, everyone keeps saying this is just what Moussaoui wants. But why would we cut off our nose to spite our own face? It is what the American people want too. They want to see justice. GERAGOS: And the idea that somehow all we're going to see are the sketch artists, and they're very good, but the idea that we're going to see a series of sketches.

GRACE: I want the real thing.

GERAGOS: Exactly. It's such a throwback to 20 or 30 years ago in this culture that was anti-lawyers advertising and anti-TV and the federal court does have a tendency to look down on the state court because state courts do allow cameras in most jurisdictions.

But the fact of the matter is that really what we're looking for here is and I think the reason that the president made the decision to have no military tribunal was to show the world that we have a justice system, that this justice system operates and it's not going to be overrated.

EPSTEIN: Can I ask Nancy a quick question?

KING: Yes.

EPSTEIN: Nancy, the Friday after Thanksgiving, we were both on this program, and you can go back and look at the tape, you said that in the...

GRACE: I said he would use it as a platform.

KING: Let him finish.

EPSTEIN: You said that in the trial of the 1993 terrorist bombing of the World Trade Center, that because it was a public trial, it sent signals and it's national security information to the al Qaeda network such that Osama bin Laden was able to realize that they were listening to him on his satellite phone.

GRACE: That's true.

EPSTEIN: That's the principle argument that you made about not having an open system. And that is for conducting military tribunal. How do reconcile these two positions now?

GRACE: Because if you recall, I'm for Moussoui being tried by military tribunal.

EPSTEIN: Totally closed -- and those are totally closed proceedings. GRACE: However, that's not going to happen. It's going to be in a civilian court. If it's in a civilian court, the rest of America should see it.

EPSTEIN: You're missing the logic of your argument. One of the reasons that argue that we should have military tribunals is to keep them closed so these guys can't send signals.

GRACE: But it is not going to be closed.

EPSTEIN: That is exactly what you said, Nancy.

KING: Nancy, he's got a point. If you thought they could signal each other, what's the difference if it's civilian, military or whatever. You should be against it.

GRACE: If it were a military tribunal, it would be totally...

EPSTEIN: What's the distinction, Nancy?

GRACE: If it were to be a military tribunal, it would be totally closed.

EPSTEIN: So what's the distinction?

GRACE: It's not going to be a military tribunal. It's open.

KING: One at a time.

GERAGOS: What you'll see is...


EPSTEIN: ... consistent, with due respect. KING: One at a time.

GERAGOS: What you'll see is, is like you what you have in other federal courts. You'll see what you have in other federal courts, is the "New York Times," the "L.A. Times," Washington Post" will put in excerpts of daily transcripts. So whatever was going to be said or testified to in court is going to be available to the public anyway the very next day.

KING: Not in Des Moines maybe.

GERAGOS: Everybody can go online and get You don't need to say that it's got to be -- it can't be video broadcast, therefore people can't read, so it's really kind of a silly argument that way.

EPSTEIN: It isn't. Let me tell you why it isn't, Mark.


KING: Hold it, hold it, hold it -- Jeanine.

PIRRO: Larry, we can argue forever and a day about whether or not there will be classified information that will be leaked out to the al Qaeda network. But the bottom line is that a decision has been made to hold this in a civilian criminal court.

That means to me, the signal is that the decision was made not to try it in a military tribunal because there's not classified information that we have to worry about. Then you go to the other side. There is a benefit to having the public know what is dangerous and what some of these organizations do. Because as we saw with Reid on that aircraft, it was the public, it was the passengers who stopped Reid from doing what he was about to do with the bomb in his sneaker.

And it's important that the American public be tuned into the dangers that are inherent, because there are still cells in this country that the al Qaeda network is controlling.

EPSTEIN: I don't think it is entirely correct to say that because it is being tried in a civilian court that there isn't classified information. In fact, this was an argument that Nancy and I had repeatedly, and why I argue you should use a civilian court. There are procedures, and they are known as the Classified Information Procedures Act, whereby you can suppress classified information in civilian courts. I think that's exactly what they're going to do here.

Secondly, I think the fact that they're trying this guy who is likely to have been, or we presume to have been the 20th hijacker in a civilian court, underscores the fact that we can use our judicial processes and we can uphold all of our legal traditions that we believe are so important that define us as a country, and fight terrorism effectively.

And I noticed Donald Rumsfeld again going back to the debate we had last month about tribunals over the break since we've been on, Larry, came out and said a lot of this debate, a lot of this criticism about the tribunal has actually been useful and the administration has really backtracked on a lot of the positions it took on the tribunals.

PIRRO: But Julian, people who know more of the facts than either you or I have made the decision that this case, which is the first case, be tried in an open civilian criminal court. What that signals is that they are not concerned about the classified information, which they would be.

Moussaoui has no right to be tried in American court and be afforded all of the constitutional protections that he will be. He only has a right to be tried in a military tribunal. Someone bigger than us made the decision, made the decision to have him tried in an open court. That tells me that there is tremendous evidence here, that security is not going to be compromised.

It tells me that we are not going to present our first case involving a conspiracy in al Qaeda and lose it. This is a winnable case where we can showcase the evidence to the world.

EPSTEIN: I agree with that. But that's not what it tells me at all. Because we've used the Classified Information Procedures Act and tried cases involving classified information with terrorists before. So, it doesn't tell me that at all. What it tells me is that they made a decision that this was a guy who was apprehended within the borders of the United, one, and two, that to start off the first case using these closed military tribunals, which I think are at least as originally drafted, are an embarrassment to us as a country, they're much better now with the new rules, I think that's the basis on which...

KING: Nancy, doesn't that mean it's likely, based on public clamor, we know how the Congress listens to the public, and the statements made so far on this show, this trial will be probably telecast?

GRACE: Well, of course it is going to be closed circuit to all the victims involved, but I think there is a big possibility it may be televised. Reason, we saw Bush's Administration backtrack. He was all for military tribunals, he issued the order regarding military tribunals, very unusual. But now the very first trial as Jeannie has pointed has pointed out, is going to be open. And Julian, you're the one who was for open courtroom. Then why not have it open?

EPSTEIN: I never said open. I said civilian.

GRACE: Why don't you want the American public to see it?

EPSTEIN: I explained that. I am generally for it. I did not say open. What I said was a civilian court system which respected due process procedures, which are not necessarily open. This is the argument I kept trying to emphasize with you, Nancy. The Congress has given the federal prosecutors the ability to close down the proceedings from the public and the press and even sometimes from the defendant, under The Classified Information Procedures Act when there's classified information. So I think these things are perfectly reconcilable within the system. That was my point.

KING: Let me get a break. We'll come right back and include your phone calls. This is LARRY KING LIVE. Don't go away.


KING: Let's reintroduce the panel. In New York, Nancy Grace, former prosecutor, anchor for "Trial Heat" on Court TV. In Los Angeles, defense attorney Mark Geragos. In New York, Jeanine Ferris Pirro, the district attorney for Westchester County, and a former judge. In Washington, Julian Epstein, former chief minority council, House Judiciary Committee.

And the first call is from Anaheim, California, hello.

CALLER: Larry, my question is, we've already had questions about whether this can be a fair trial. If one person votes against a conviction, if it is televised, won't they raise the issue that the whole country has seen it on TV and it must be moved to a neutral country to get an impartial jury?

KING: Mark?

GERAGOS: No, -- I mean, yes, they would -- would they raise the issue? Yes. You can always raise the issue of pretrial, post trial, during trial publicity. The only issue, though, is when you're seating the jury, it's whether or not you can get jurors or members of the veneer panel, the jury veneer panel, who say that no matter what they've seen, they can still be fair.

The fact of the matter is I've yet to see any trial, any high- profile case I've been involved in or have seen, where you couldn't find some jurors who always will say, of course I've heard about it, of course I know about it, but I can still be fair. You're always going to find 12 people who will say that.

KING: Do you think he can get a fair trial, Nancy?

GRACE: Well, you know, a lot of people are claiming, based on pretrial publicity, and the way the entire incident tore the country apart, you can't get a fair trial. A fair trial is not 12 people who have lived in a cave during all this who don't know a thing about it. So, yes, I think you can get 12 honest impartial jurors.

KING: Toronto, Canada. Hello.

CALLER: Larry, is the panel not concerned by televising this trial that it might cause more trouble with possible copycats or sympathizers?

KING: Jeanine?

PIRRO: I think the fact this case is going to be publicized, irrespective of whether or not there are cameras in the courtroom, pretty much answers that question. But there were no cameras in the courtroom in the trial that involved the bombers from the 1993 attack, and yet the judge in that case is still under 24-hour security. So it is not really an issue of cameras, it is an issue of publicity.

And I think this country has to have a sense that justice is being done and the way to do that is to make sure that everyone knows truly what the facts are.

KING: Palm -- sorry, Julian, go ahead.

EPSTEIN: But I think that is exactly the point about the danger of having cameras in there, with due respect, Jeanine. I think yes, the judge is under 24-hour security.

I think the likely result is that if you bring cameras into this courtroom, you're going to have every single witness that testifies is going to be required to have 24-hour security perhaps for perhaps for the rest of their lives. And that can potentially have a very intimidating effect.

PIRRO: Julian, that makes no sense.

EPSTEIN: Why doesn't it make any sense?

PIRRO: The response to that is the fact that you can have someone from the al Qaeda sitting in that courtroom because it is an open courtroom. You don't need cameras to do that. You can get a copy of the transcript, you can stand outside the courtroom and watch people leave every day. Who are we kidding? Cameras are nothing more than a reflection of a bigger audience seeing this trial than the 50 or 60 in the courtroom.

EPSTEIN: I think the response to that, Jeanine, is that the cameras magnify that problem by a considerable degree. And secondly, with respect to the notion of whether a camera or publicity is going to poison a potential jury pool, if there's a hung jury, the mere virtue of the fact that people have heard, as Mark points out, that people have heard about this case, doesn't mean you can't get a fair trial. That's not what a fair jury means. It's not folks that have never been exposed to it, it is people that have the capacity to judge it fairly.

GRACE: Julian, the whole point is that once Bush allowed a civilian courtroom, the camel's nose is in the tent. It's too late. It's going to be publicized by press, by radio.

EPSTEIN: And I'm all for that.

GRACE: And so cameras are an extension of that.

EPSTEIN: But not cameras.

KING: Palm Springs, California. Hello.

CALLER: Hello, Larry. I'd like to know if the American taxpayers are going to be paying for his defense and if so, are we not entitled to watch the trial?

GERAGOS: They are going to be paying for his defense. His defense -- there's two lawyers. You're entitled to two lawyers any time there is a death penalty prosecution in federal district court. The lawyers are both appointed by the...

KING: He doesn't have lawyers of his own?

GERAGOS: He does not have lawyers of his own. He could have lawyers of his own if he wanted to. But in this case, both lawyers have been appointed by the. one of the federal district court judges.

KING: He stood moot, right, I mean he is not saying anything. He has not said a word.

GERAGOS: So far he has not publicly said anything.

KING: Hasn't even pled.

GERAGOS: He hasn't even pled, but there was a plea entered on his behalf by the court.

KING: Is that a good point, Jeanine that, if the public is paying, they have a right to see?

PIRRO: I think it's a great point. The public is paying for more than just two lawyers. The public is going to be paying for translators, for all kinds of expert witnesses. You've got a foreign national here who is being accorded every constitutional right that an American citizen would.

The American people are foot being the bill at every level. And you know what, not everyone can go into that courtroom or wait in line to get in there and they're entitled to see justice as it's experienced every day in courts across this country. By the way, Larry, just about every state in this nation allows for cameras in the courtroom in civil cases, and most of them in criminal cases.

And the experiment in New York after ten years was that every forum and every analysis was that there should be cameras. Cameras are inconspicuous. They're not even as conspicuous as sketch artists, who are constantly involved in...

GERAGOS: Right, who are constantly -- exactly. And the interesting thing as well, is for the same reasons I think the administration made the decision to put out Osama bin Laden's tape and remember, we talked about it before they did it and there was much discussion -- should they do it or shouldn't do it. We were saying beforehand, we were commenting that part of the reason you might want to do that is so that the international people could see this guy joking about people dying who were working for him who didn't know what was going on.

GRACE: That's a really good point.

GERAGOS: ... also would like to see, well, I think the administration feels, let the international community see what American criminal justice system is all about. We're not going to close this down and do this in a secretive way.

GRACE: You know, there are a lot of contingents that do not believe that bin Laden is responsible, or that there is an al Qaeda, or that it is responsible. That's a heck of a point, because an open courtroom will show them the evidence.

KING: All right, let me get a call. Sebastopol, California, hello. CALLER: Yes, hello. I don't think that it should be televised. I think you'd make a hero of him, just like O.J. Simpson. He would be in jail today if that had not been an open trial. I think it's wrong. What does the panel think?

KING: Let me get a break and come back. I want your thoughts on that. Will it make him a hero, martyr type as she says O.J. was? We'll be back with more. Don't go away.


KING: Mark Geragos the caller was upset, fearing that he could be martyred.

GERAGOS: I don't think she has anything to fear. When you talk about O.J. Simpson, you're talking about somebody who was beloved going into the trial. This gentleman is not beloved going into this trial. This is somebody who has already been effectively demonized, if you will, and he is only going to be further demonized by a federal court prosecution.

I don't think you've got anything to worry about that this guy's going to become a celebrity or martyr. There may be a contingent of people who would naturally be drawn like they were to the night stalker out here, but you won't find a well spring of support for him.

EPSTEIN: Mark is absolutely right as is usually the case. The notion that even if he were to become a Celebrity or martyr, and I don't think that is at all likely to happen, that would be a bad reason for shutting down cameras from the courtrooms. Aria Nyer (ph) once wrote a great book on why Nazis ought to be able to march in Skokie, Illinois. These bigots and these war criminals end up hanging themselves.

But the reason for my position, Larry, is once you introduce camera and the hype of all the camera, I think you'll see a lot of witnesses clamming up. And the federal judges have offered a fair amount of evidence happening in normal circumstances, I generally dismiss it, but here I think there's some validity to it.

PIRRO: Julian, I think the answer to the question really is about the fact that if the judge is in charge, the defendant and the defense will not have an opportunity to create a martyr or to give the impression that this person should be a Celebrity or a martyr. It's all about controlling the courtroom. That's what it's going to come down to.

KING: I want to get one more call in, but Nancy, since he didn't, in and of himself kill anyone, or is accused of killing anyone, he is being part of the plot, should he face the death penalty?

GRACE: Larry, I've carefully read the indictment word for word. If what is in the indictment is true, yes, he conspired to take part in 9-11. Just because he didn't fly one of the planes himself, he aided and abetted. KING: So he should get the death penalty?

GRACE: Yes. And regarding the caller, I could tell she was upset but I think that Moussaoui will be exposed for what he is.

KING: To California city, California. Hello.

CALLER: Hello, Larry. My question to the panel is why do they think Moussaoui is insisting on a televised trial and does it raise any suspicions with them?

KING: Jeanine?

PIRRO: Very good question. The fact that Moussaoui himself is interested in a televised trial I think is a signal that he thinks that he may be able to get people to agree with him. He may be able to sell his cause. Maybe he's interested in coding or sending signals. It's certainly a concern and it's a very astute question.

KING: Mark.

GERAGOS: I think, speaking as a defense lawyer, I think that what I can tell you they are probably are thinking right now is, look, No. 1 he was in custody at the time of 9-11. No. 2, they've got a videotape with Osama bin Laden saying and joking that a lot of these guys didn't know what was going to happen.

They probably figure that those kinds of things are just not going to compute with some jurors, and that if you have a televised trial, that that can only benefit him. So I can understand what the defense is thinking here, that they believe they probably have the ability to raise reasonable doubt because sometimes jurors will have trouble with the idea that you can be a member of a conspiracy, even though in this case on the day of the act in question, that is the reason for the death penalty being sought, he was actually in custody. To some people, that's not going to compute.

GRACE: Mark, if you look at the indictment, the way it's laid out, if the allegations were true, he was like this with Mohammed Attah. There's no doubt about it.

GERAGOS: And if they can prove that, they're not going to have any trouble getting a conviction whatsoever. All I am saying is that if they're going to play on this idea, if the defense here is going to be, No. 1, Osama bin Laden was compartmentalizing people and not telling the right hand what the left-hand was doing, not telling various people what was going on and they've got a tape that shows that and that he's in custody at the time, they're going to run with that.

EPSTEIN: Remember, this guy's been in custody since August. The chances of him sending signals are very, very remote. I think the answer to the caller's question is very simple. This guy just has these apocryphal visions of martyrdom. That's why he wants and that is why he wants it televised.

KING: Wouldn't you say, Nancy, the defense is up against it here? That they're going to have an awful tough time getting an acquittal.

GRACE: I do think they're up against it. But that's not the system's fault. The reason they're up against it, if this indictment is true, is because Zacarias Moussaoui was part of a conspiracy to attack this country.

Back to the caller who was afraid he would become a martyr and become a Celebrity, you know, take a look at O.J. Simpson. He's not a Celebrity now. He is shunned and most of America believes he's a double killer.

GERAGOS: Exactly right. He started off in a beloved status and he moved to a demonized status. This guy is not starting off where O.J. Simpson was.

PIRRO: Didn't we worry about that, Larry, with Timothy McVeigh?

Didn't we say if he's put to death he'll be a martyr? Where is he now in terms of public consciousness?

EPSTEIN: Good, we all agree on this issue.

KING: Julian, do you think, though, while the law upholds you at this current time this trial will be telecast?

EPSTEIN: No, I don't think there's any chance it will be because I think the judicial conference...

KING: Congress won't override it?

EPSTEIN: I don't think Congress will and the judge can't do it on her own unless it's declared unconstitutional. I think Congress should override the judicial conference as a general rule, but here I can see the prosecutor's position and I think we should give some deference to prosecutorial judgment.

KING: Do you think it will be shown, Mark?

GERAGOS: Only if the prosecution reverses their position, is this case going to be shown. I don't care what Congress does. As long as the prosecution is in there claiming that there are issues involving security, national security and everything else in the security of people in the courtroom, no judge is going to fly in the face of that. KING: Jeanine, what do you think is going to happen?

PIRRO: I think that Congress given the fact they've already signaled they want the relatives and family members of victims to see this on closed circuit is inching toward that. The judge herself will not do it because there isn't any precedent for her to do that. But if there's any chance of that, it will be Congress doing it I don't know what they're thinking. . KING: Nancy?

EPSTEIN: I think the administration is opposed to it.

GRACE: I think that very often we don't Congress doing anything we want them to. But in this case, because of the magnitude and harm to the country, televising it to the entire country letting them see justice may be something Congress will be interested in and they may move quickly.

KING: Thank you all very much, we are out of time. Julian Epstein, Jeanine Ferris Pirro, Mark Geragos, Nancy Grace, a lot more time to talk about it. The trial is not scheduled to begin until October 15. We thanked our panel and our guests earlier.

We'll tell but tomorrow night and other things coming up right after these words. Don't go away.


KING: Tomorrow night, Senator John McCain, back in the United States and coming to LARRY KING LIVE. We'll talk about Afghanistan and Enron and lots of other things. And standing by now, in Atlanta tonight, Aaron Brown. The reason he is in Atlanta is he was in Tampa earlier for an exclusive interview with General Tommy Franks, which you will see straight ahead. In Atlanta with NEWSNIGHT, here is Aaron.




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