MSNBC show
Alan Keyes is Making Sense
Alan KeyesApril 17, 2002
ALAN KEYES, MSNBC HOST: Welcome to MAKING SENSE. I'm Alan Keyes.
Up front tonight, America's war on terror. Are we still winning? Colin Powell is on his way back to Washington from the Mideast empty-handed after one last meeting with Yasser Arafat.
As for the moment, the spotlight fades from Powell's diplomacy. Many questions emerge about its effects on America's war on terror.
This morning, a report in the “Washington Post” put the cold reality on its front page. There's quite a contrast here because as the U.S. faults Israel for capturing or killing the organizers of the terrorist assaults against Israel, U.S. officials, according to this “Washington Post” story, admit that Osama bin Laden may have escaped U.S. efforts at capture at the battle of Tora Bora. Many are blaming Army General Tommy Franks, the war's operational commander, for blowing a chance to get their hands on Osama bin Laden.
At a speech today elsewhere to military cadets in Virginia, President Bush made no mention of bin Laden, but reminded Americans that the war on terror is far from over.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: A small number of outlaw regimes today possess and are developing chemical and biological and nuclear weapons. They're building missiles to deliver them and at the same time cultivating ties to terrorist groups. These regimes constitute an axis of evil, and the world must confront them.
(APPLAUSE)
(END VIDEO CLIP)
KEYES: The tough rhetoric sounds familiar. But it's not clear that it is falling on ears so willing to accept words as a substitute for deeds. The “Wall Street Journal,” for instance, wasn't so warm and fuzzy to President Bush, writing in its lead editorial today, quote: “Suddenly the president who soared by standing in principle seems to have been replaced by an impostor who's lost his foreign policy bearings. This isn't yet the gang that couldn't shoot straight,” the “Wall Street Journal” writes. “But without a course correction it may get there. The administration that once dominated events now seems hostage to them.”
Pretty hard words coming from editorial page that is traditionally sympathetic to Republican presidents. And yet I think that kind of sentiment, a little bit of a question mark and doubt have been placed behind the administration's policy toward the war on terror in general, toward the Mideast in particular, by events of the last several weeks, and by the seeming inability of the administration to develop and articulate an effective approach that allows a consistency between our war on terror and the diplomacy that we are practicing in places like the Middle East.
Now, to discuss these difficulties, we have joining us now Congressman Dana Rohrabacher, Republican from California, and a member of the House International Relations Committee, and Mark Ginsberg, former U.S. ambassador to Morocco during the Carter administration.
I want to start off tonight with my old friend Dana Rohrabacher. Welcome to the show, Dana.
REP. DANA ROHRABACHER (R-CA), HOUSE INTERNATIONAL RELATIONS COMMITTEE: Very good to be with you, Alan.
KEYES: I have a question for you because I have talked on the program about what I see as some of the difficulties and inconsistencies raised by our willingness to treat with Yasser Arafat and muddy the waters about what terrorism is and so forth and so on. Do you believe that in the wake of that kind of diplomacy we are going to face a more difficult road when it comes to pursuing what the president still quite rightly acknowledges to be our primary objective in dealing with a lot of these states that threaten us?
ROHRABACHER: Well, we started this whole war on terrorism out because our people had been slaughtered in New York. So, our primary target was dislodging the Taliban and the al Qaeda control of Afghanistan so that that country couldn't be used as a base against us. And our military and the Bush administration I think has done a magnificent job in accomplishing that step.
They also have singled out, of course, the threat that Saddam Hussein poses to the United States of America. He has a grudge with us. And he will kill millions of our people if he can.
And I just got back from that region. And I can tell you we are laying the groundwork. And the Bush administration is ratcheting up the pressure on Saddam Hussein. And I think we can be very proud of that.
I'll just have to say about Israel and the ongoing problems there on the West Bank, in that particular arena, America needs to be a peacemaker and needs to make sure that we bring the sides together. It is not like it is in Afghanistan or Baghdad. You have got a dispute between two people. And I think the administration is doing a good job in trying.
KEYES: See, I think that that is part of the problem here. Let us go back to September 11th when Osama bin Laden clearly stated that his motive for killing all of the Americans and bringing down the World Trade Center was Israel killing Arabs and America's support for Israel and the killing going on in the Middle East. He justified his terrorist act the same way Yasser Arafat does.
ROHRABACHER: Well, that was, that was...
KEYES: The same way that the Saudis do. These people tell us that terrorism in the name of the Palestinian cause is not terrorism. Well, if that's so, how come Osama bin Laden isn't let off the hook?
ROHRABACHER: Most Muslims know that bin Laden could care less about the Palestinians. He could always care less. He has been at war with the United States — by the way, when I was in Afghanistan fighting against the Russians back in 1988, I ran across bin Laden's camp. And they told me — and here we were there to fight the Russians, and that my Afghan friends told me, “Don't say anything because this guy is crazy. He hates Americans as much as he does Russians. He will come to kill us if he knows there's an American with us.”
Well, guess what? He didn't care less. He could care less about the Palestinians.
KEYES: Dana, we were talking last night about — a Saudi ambassador there to Great Britain — talking about the White House as a force of darkness and all this. Don't try to pretend Osama bin Laden is the only guy who hates America. It seems a lot of Saudis hate Americans, including the Saudi passport holders that brought down the World Trade Center down.
ROHRABACHER: OF course.
KEYES: And those are the people that we are now negotiating with and claiming to accept some proposal from to settle the Middle East. How can we separate these two issues?
ROHRABACHER: Well, you can separate the two issues because in order to find peace in the Middle East, we have got to find a compromise between the Palestinians and the Israelis, which will leave Israel with secure borders and at peace and a homeland for the Palestinians.
They're not going to be obliterated. They're not going to disappear. So, we have to find a formula for compromise and peace. I believe this administration has a good heart, and they're trying to do just that.
KEYES: Well, the great problem is I think that you can't make peace with somebody who is trying to kill you and refuses to stop. That's the great issue that is confronting Israel.
Mark Ginsberg, don't want to leave you out. I haven't forgotten you're there at all. And the question that I want to pose to you is in a way precisely that question. I mean, we see the sort of rabid pursuit of terrorism as a strategic weapon in the Middle East, justified on the basis of pursuing this goal of anti-Israeli success. That is exactly what Osama bin Laden said.
And yet we're trying to justify a different response to the terrorism in the Middle East. We presented this as a seamless global threat when we told the world there could be no neutrality in dealing with terrorism. Have we changed our minds?
MARK GINSBERG, FORMER U.S. AMBASSADOR TO MOROCCO: Well, Alan, let me first preface my remarks to you by saying that as a Democrat, I really believe, on behalf of the American people, all of us want to see this administration succeed in the war on terrorism. But lately, the administration's policy has been frayed, incoherent and inconsistent. It's losing not only domestic support among Democrats and on its right, but abroad it has sent a lot of mixed signals.
First, Vice President Cheney's trip to garner support for an invasion of Iraq totally fails. We have been — this administration essentially ignored the Arab-Israeli conflict for 11 months, and only because of the Cheney mission did they decide to reengage.
The situation in Afghanistan is less than secure while the administration diddles and dawdles over whether or not we should put peacekeeping troops outside of Kabul. And around Europe and in the Middle East we have lost enormous sympathy and support, which frankly we shouldn't be doing.
The American government is not providing sufficient leadership to remain coherent and be true to our ideals that the war on terrorism is more than merely a war against Saddam and a war against bin Laden, who, by the way, this administration considers to be an invisible man. We have to stand tall in the Middle East to defend our ally, Israel, and to provide the Palestinians, obviously, some humanitarian relief and a vision for peace.
But after all, they are the ones who have been providing the support for terrorist activities against Israel. And this administration has been zigging and zagging. And, as a result, it's had a difficult time laying a groundwork for a vision for peace.
And, frankly, Secretary Powell returns from the region largely empty-handed, although he did manage to quell — hopefully quell — some of the violence on Israel's border with Lebanon.
KEYES: Representative Rohrabacher, in one sense, I think we have an illustration on the program tonight of one of the difficulties I think the administration does face because Mark Ginsberg just expressed some unhappiness that comes from one direction. I and the “Wall Street Journal” and others are expressing unhappiness that comes from a different direction, but that clearly is showing concern because there seems to be inconsistency, incoherence, in areas that are vital to moving forward in the war on terror.
You mentioned Saddam Hussein, for instance. Isn't it the case that our Mideast diplomacy actually resulted in having these Arab states rally around Saddam Hussein? Saudi Arabia kisses him on the cheek as if to legitimize his presence. What kind of prelude is that to tough action against Saddam Hussein?
ROHRABACHER: The president right now is involved with laying the foundation for eliminating Saddam Hussein. And he's doing a very responsible job in making sure that he takes that step by step.
Many of these Arab countries that you're talking about have no objection to us taking out Saddam Hussein. But it is understandable that when you see a situation in Israel where you have Jews and Palestinians fighting it out that they don't want the United States just to be all on one side, they want the United States to do peacemaking.
KEYES: Wait, before we go on, I want to reiterate this question, though, because we have got to face the facts here.
ROHRABACHER: Yes.
KEYES: At that Arab summit, Saudi Arabia engineered what was supposed to be reconciliation between Kuwait and Saddam Hussein. The Saudi leader kisses Saddam Hussein on his cheek, “Welcome, brother.” And you're telling me that after that display of circling the wagons around this guy it's not going to be harder for us to take him down. I don't understand.
GINSBERG: Alan, can I add a point here?
KEYES: Yes.
GINSBERG: Not only did the kiss occur in Beirut, Congressman, but also the Kuwaitis and the Iraqis signed an agreement in Beirut, which very few people have reported on. That shows that we have lost so much ground.
Even though I agree with you that we need to take out Saddam, we have no support in the Arab world right now. And Vice President Cheney found that out the hard way.
KEYES: Well, let's — answer that question, though, because I think it's very important. Are we faced with this reality and how do we deal with it?
ROHRABACHER: Well, first let me note, there's many people — I will never try to defend the Saudis. The Saudis, in fact, helped create the Taliban. And we know that. The Taliban in Afghanistan were nothing more than a Wahabi religion, which comes from Saudi Arabia superimposed on the Afghans. So, I'm not going to be defending them.
The question is what is right and what is wrong. And what is right is for America to be a peacemaker, as George Bush is trying to do. And if we give that an honest effort rather than just trying to be on one side of that dispute, we will gain the respect of the Arab world and everybody else. And for those people who are vicious dictators like Saddam Hussein and the Taliban and others who just hate the West, we're never going to get their respect.
GINSBERG: Alan, we are not going to get...
(CROSSTALK)
KEYES: Mark, go ahead.
GINSBERG: We are not going to gain the respect of the Arab world if this administration isn't prepared to use the president's personal popularity to provide the leadership that is necessary to put that vision in place. This president seems unwilling to engage the capital that is necessary to do what we need in the Middle East.
ROHRABACHER: Well, this president just sent his secretary of state over there to be a peacemaker. And now he's getting attacked from all sides. I think the president showed again that he's got a very good heart. He's trying to be a peacemaker. And I think that's the role the United States should play.
KEYES: Dana...
ROHRABACHER: This isn't going to be over by the obliteration by the Palestinian people or the obliteration of Israel.
KEYES: Dana, Dana...
ROHRABACHER: One or both sides have got to accept that each one is going to exist, Israel and Palestine.
(CROSSTALK)
KEYES: One second, I want to get a word in here, Dana, because I think one of the hardest things to learn about diplomacy of any kind is that a good heart and wishful thinking are no substitute for effectiveness. I don't care how much one wishes good things to happen.
ROHRABACHER: Well...
KEYES: The hard challenge of the world is what effectively produces the results.
ROHRABACHER: That's right.
KEYES: And I think — wait, let me finish here because in one sense I believe both of are you wrong, because the first prerequisite right now is to convince the Saudis and Osama bin Laden and Arafat and anybody else who has taken up the weapon of strategic terror that it ain't going to work. That's not what is happening here.
(CROSSTALK)
ROHRABACHER: Alan, first and foremost...
KEYES: Wait, Powell's mission suggested that it does work.
ROHRABACHER: I agree with you.
KEYES: We have given concessions to terror in the Middle East. We are embracing the practitioners of terror in the Middle East.
GINSBERG: Alan, Alan, and that's why the administration has had the difficulty that it has because it has sent such mixed signals on whether or not Mr. Arafat is engaged in supporting terrorism.
ROHRABACHER: Alan...
KEYES: Dana, Dana, quick word...
(CROSSTALK)
KEYES: Wait, we're down to the wire. One quick word from Dana Rohrabacher.
ROHRABACHER: The United States has to set a standard that nobody should be targeting noncombatants, and that when the Palestinians load up a child with a bomb and go to Pizza Hut, that is an act against civilization. And we are against it. But we've also got to make sure...
KEYES: We have got to go.
ROHRABACHER: ... We have also got to make the Israelis, make sure that they don't attack.
(CROSSTALK)
KEYES: Dana, we have got to go. Thank you both for joining me tonight. I really appreciate it. But I — one last word. Don't try to pretend we're going to send that signal by embracing somebody like Arafat, who has practiced the very things we are condemning. It makes no sense.
Anyway, up next, how many of you realize that in Oregon doctors are murdering people? And it's legal. Today, a federal court upheld a state law that allows physician-assisted suicide.
But that's not the final word. We're going to debate that after the break.
Plus, the Supreme Court rules on so-called virtual porn. Is this a victory for free speech or molesters who prey on our children?
But first, does this make sense? Well, the family of Charles Bishop, the 15-year-old who flew a plane into a building, a Tampa high rise, they're suing the maker of the drug Accutane for $70 million, saying it was the drug's fault.
Now tell me, apparently 147 persons taking the drug out of many millions, many, many millions — have had this kind of a problem. And yet these parents a re saying this miniscule chance that the child was influenced by the drug is greater than the possibility the child was influenced by family environment, parents, and all the other things that are closer to home that I guess they don't want to look at.
I think that looking far afield for some distant drug to take the blame for something you might very well have to take responsibility for makes no sense at all. What do you think?
(COMMERCIAL BREAK)
KEYES: Later in the program, the issue is virtual kiddie porn. Does the Supreme Court have a soft spot for virtual porn? Yesterday, the justices made a controversial ruling on the issue. And we're going to have a lively debate here in the next half hour.
Meanwhile, he conversation in the chat room is hot tonight, just like the weather in a lot of places, including here and across the country. You can join in right now at chat.msnbc.com.
But first, today a federal court in Oregon dealt a blow to the Justice Department's efforts to bring an end to legally physician-assisted suicide there in Oregon. Attorney General John Ashcroft challenged the law saying it was not a legitimate medical practice. And he issued a directive preventing doctors from issuing any lethal prescriptions.
Now, Oregon voters have approved physician-assisted suicide in two separate referendums. That's where the law comes from.
Obviously, there's a strong debate here. Are we healing people somehow or another when we kill them in this fashion? Is this, in fact, a legitimate way for doctors behave?
The voters in Oregon have said yes. But at a national level, is there, in fact, a responsibility as we have insisted on respect for civil rights in so many other ways to insist on respect for the basic civil right to life itself?
To debate the issue tonight, we have with us Stephen Bushong, Oregon assistant attorney general who argued in favor of Oregon's assisted suicide law in the federal district court, and Richard Thompson, executive director and chief counsel of the Thomas Moore Law Center, a public interest law firm dedicated to the defense of Christian values. He was the prosecuting attorney as well in the Jack Kevorkian case. Welcome, gentlemen, to MAKING SENSE.
First, let me go to Richard Thompson. Taking a look at the events that have occurred in the court ruling today, do you think that the Justice Department would be justified in moving ahead and challenging this decision? And on what grounds to you think?
RICHARD THOMPSON, EXECUTIVE DIRECTOR AND CHIEF COUNSEL, THOMAS MOORE LAW CENTER: Well, absolutely. I think the attorney general has a responsibility and a constitutional duty to enforce the federal laws. And that's what he was doing in this case.
The Controlled Substances Act has been in effect since 1970. And they basically amended it to say that physicians could only dispense drugs if they had a legitimate medical purpose. And the attorney general interpreted that to mean that the Oregon physicians could not dispense federally controlled substances to end the lives of patients.
KEYES: Stephen Bushong, I know that Oregon voters have supported this concept. But the attorney general is acting on the basis of a federal law that requires basically that he try to stop people from dispensing these dangerous drugs when there isn't a medically acceptable purpose. Can the voters of Oregon decide that killing folks is a medically acceptable practice?
STEPHEN BUSHONG, OREGON ASSISTANT ATTORNEY GENERAL: Well, actually, Alan, what Congress gave the attorney general the authority to do is a lot narrower than as you stated. What the attorney general can do is regulate the practice of dispensing drugs to combat the problem of drug abuse and drug trafficking.
The practice that's been authorized by the Oregon law has nothing to do with that. And that's what the court ruling said today.
KEYES: Well, see the great problem...
BUSHONG: Well...
KEYES: ... go ahead, go ahead...
THOMPSON: The question is, does the attorney general as the chief law enforcement officer of the nation have the right to enforce the Controlled Substances Act the way he sees it? Now, this is not something new that Attorney General Ashcroft did. In fact, the DEA administrator under Clinton initially interpreted the law the same way as the Attorney General Ashcroft did.
However, about seven months after DEA Administrator Constantine interpreted the law, Attorney General Reno overruled him. So, this is not something that Attorney General Ashcroft merely decided out of the blue that this would be a good interpretation.
In fact, it seems outrageous to me that physicians would believe that their healing profession is now interpreted to mean the right to kill their patients. And that's what it's all about. And it's the right of the federal government to come in and interpret their laws to prevent the state of Oregon of Oregon to begin the first steps, as Nazi Germany did back in 1933, when they said that there was such a thing as a life not worthy to be lived.
So, this has a greater impact than merely the attorney general deciding a specific interpretation of the Controlled Substances Act that he has the right to do. But it means more than that. Can every state now in the union decide the way they want to interpret the law and then avoid the federal implications there?
BUSHONG: If I may, the people of Oregon have done nothing like the reference to Nazi Germany. That's just completely outrageous.
What the people of Oregon have done is authorized dying people at the final stages of their terminal illness to take a step that's within their own control. That doesn't have anything to do with today's court ruling. The court ruling upholds...
THOMPSON: Wait a minute. Physicians have to rule on that.
BUSHONG: Yes, they do.
THOMPSON: Physicians are the ones who prescribes the deadly medicine. And those are the first steps that Nazi Germany did. They started out with the idea that there was such things as lives not worthy to be lived.
And it was the physicians that initially got involved in it. And it seemed like a compassionate thing to do. Ultimately, we know that once you start down the road, that slippery slope, more and more people are added on to it. And that's the danger...
KEYES: Wait, there is a question, though...
(CROSSTALK)
KEYES: ... before you continue, let me ask a question of Stephen, though, because I'm still trying to understand something here. Are you saying that the attorney general can effectively carry out this law without distinguishing between legitimate medical uses of these controlled substances and medical uses that are not legitimate? He doesn't have to do that every time he enforces the law?
BUSHONG: Well, the law has nothing to do with the practices of dying patients and their doctors.
KEYES: No, no, no. Stephen, wait a minute. Wait a minute. I just want a simple question. Does the attorney general have to bring to bear a judgment in any given case? I mean, there might be people out there who are dispensing these drugs to make money and do other illegal things and pretending that it's somehow in pursuit of their legal practice. Doesn't the enforcement of the law require that he distinguish between those legitimate uses of the controlled substances and those that are simply pretended legitimate uses?
BUSHONG: In a specific case within the context of a problem of drug trafficking and drug abuse, he does.
KEYES: So, he does have to do this stuff?
BUSHONG: Yes he does. In a specific case.
KEYES: Let me ask a question, though, because are you now acknowledging that he can't carry out the law without making this sort of a judgment, right?
BUSHONG: Well, that's not what he did here.
KEYES: If in the case — maybe it is, maybe it isn't. I think that's what the court has to decide. But if are you looking at a situation where a physician says, “I am using this controlled substance in a way that conforms with the proper understanding of medical practice,” and the attorney general disagrees with that physician, you are saying that the people of Oregon get to decide on that difference? Why are they the experts here?
BUSHONG: Well, whether or not a particular practice is a legitimate medical one is a policy decision that the voters of any state can make. That's what the United States Supreme Court said in Washington versus Gillespie.
THOMPSON: That's not true.
KEYES: Go ahead. Go ahead, Richard.
THOMPSON: That's not true. Just last year, a unanimous Supreme Court said that the voters of California could not legitimize the use of marijuana for medical purposes even though that was an initiative referendum that the voters took. The attorney general of the United States filed a lawsuit against an organization that was trying to dispense marijuana for medical purposes. And the United States Supreme court said that it is up to the attorney general to enforce the Controlled Substances Act. And it is a unified act that all 50 states must abide by.
And Oregon is out there all by itself. All of the other 49 states have not in any way legitimized physician-assisted suicide, have not allowed doctors to dispense death-dealing drugs to end the lives of patients who they believe do not have a life worthy to be lived.
BUSHONG: Well, what that...
THOMPSON: So, there is a clear — there is a clear decision by the United States Supreme Court on the very issue that Oregon has taken a position on.
KEYES: Go ahead, Stephen.
BUSHONG: The decision by the United States Supreme Court was in Washington versus Glucksberg, where the issue of physician assistance in hastening death was at issue, and where the court said that that was a policy issue for the states to decide, that the states are engaged in that policy debate as we speak. And that's exactly what today's ruling allows.
THOMPSON: That's not true. What the United States Supreme Court said in that case was that states had a constitutional right to ban physician-assisted suicide. In fact, they went on to say that for 700 years England and the United States have had policies against assisted suicide. And the policy that they were looking at now was a very good policy because it prevented the states from taking their own action.
(CROSSTALK)
KEYES: Can I ask one last question, though?
THOMPSON: Sure.
KEYES: Stephen, I'm still confused by your response here. It would seem to me that if I have to make a judgment about what is, in fact, a proper medical use of a given controlled substance, I wouldn't take a vote on it. I would look at what doctors do. And I would consult with people who do it and so forth and so on. I would make that judgment.
You're saying here that the attorney general of the United States must subject with respect to that technical judgment about what's a proper medical use of a controlled substance, that he lets the people of Oregon decide and doesn't bother with might actually be medical practice. Is that right?
BUSHONG: No. Because what a doctor might do and what a legitimate medical practice might be within the context of a dying person in the final stages of their terminal illness is something that was debated in Oregon during two election campaigns. And the people of Oregon made that policy decision.
That they can do. That's what the court ruling today affirmed.
KEYES: No. The great problem that we have here is you are asserting that the people of Oregon can do it. And I'm saying that the attorney general of the United States has under the law a responsibility to make the judgment, and that he does not have to accept the uninformed, untrained, un-backed-up judgment of the non-doctor people of Oregon, even though they vote 1,000 times to say that something is medically acceptable.
But, gentlemen, we have run out of time. Thank you both. I really appreciate it. Fascinating discussion.
(CROSSTALK)
KEYES: Obviously one that is going to continue to be controversial.
Next, another controversial subject. And that one that is having a lot of folks, I think, roiling with anger around the country. The Supreme Court rules against stopping so-called virtual kiddie porn. Does that mean our kids are in danger?
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
(NEWSBREAK)
KEYES: Welcome back to MAKING SENSE. I'm Alan Keyes.
Now on to the — to yesterday's Supreme Court decision that struck down a 1996 federal law that banned appearing — appearing, mind you — to show sexually explicit images of children. This is called virtual pornography.
Now, before we get to the discussion and the — are able to hear the different viewpoints of our guests, I want you to look at MSNBC's report by Pete Williams.
(BEGIN VIDEOTAPE)
PETE WILLIAMS, NBC CORRESPONDENT (voice-over): Prompted by advances in computer technology that can create realistic images like these from the movie “Final Fantasy,” Congress in 1996 banned works that appear to show sexually explicit images of children, whether done entirely by computer without using any actual children or made by using adults who looked so young they seem to be children. Such images, Congress said, could stimulate demand for real child pornography.
But the Supreme Court, in an opinion by Justice Kennedy, struck the law down. By a vote of 6 to 3, the court said banning images that don't exploit actual children is an unconstitutional limit on free expression. Youthful sexual activity is a theme older than Shakespeare, the court said, and the law would prohibit legitimate works, including movies like “American Beauty.”
A publishers' group says Congress cannot ban free speech that might cause illegal activity.
R. BRUCE RICH, PUBLISHER COALITION: We must not (UNINTELLIGIBLE) expression in our society. You don't censor it — you don't allow the government to censor it out of fears about its possible effects on the population.
WILLIAMS: But the attorney general says the ruling puts a new burden on prosecutors to prove that the pornographic pictures they seize show actual children.
JOHN ASHCROFT, ATTORNEY GENERAL: The United States Supreme Court made our ability to prosecute those who produce and possess child pornography immeasurably more difficult.
WILLIAMS (on-camera): Attorney General Ashcroft says he'll work with Congress to find ways to fix the law and ban virtual child pornography.
Pete Williams, NBC News, at the Supreme Court.
(END VIDEOTAPE)
KEYES: Joining us now is Congressman Mark Foley, Republican from Florida and deputy majority whip. He was asked today by the attorney general to reintroduce the anti-child pornography legislation that the Supreme Court overturned yesterday.
Also with us, Louis Sirkin, a First-Amendment attorney who argued the case in front of the Supreme Court.
Gentlemen, welcome both of you to MAKING SENSE.
I want to start with Louis Sirkin because it seems to me that one of the things that I think is outraging a lot of people around the country is that this seems to be a decision that takes an abstract concern with some kind of free expression generally understood and applies it in such a way as to ignore the concrete and actual harm and damage that can be done to children as a result of what is being encouraged here. How can the court be justified in coming to a conclusion like this?
LOUIS SIRKIN, FIRST-AMENDMENT ATTORNEY: Well, first of all, the court came to the conclusion to protect the First Amendment. To try to ban something that doesn't really happen or really exist and no real child is involved is making a crime out of something that is not a crime. It is only a crime if a real child is involved, and that's how the court can do it, and the First Amendment protects exactly what the court held was unconstitutional by the congressional act.
KEYES: But I had thought that there was an — I thought there was an old principle that you shouldn't shout fire in a crowded theater, meaning to say that some exercises of free speech represent in certain environments approximate harm that outweighs the free speech right. There isn't approximate harm to the young and innocent children who will be preyed upon by the kind of behavior this sort of stuff encourages?
SIRKIN: There was absolutely no concrete evidence presented to Congress that that would happen. So it is not like the situation where you scream fire in a crowded theater when there is no fire.
KEYES: Well, I'm not quite sure why you say that since, with virtual pornography, they are basically showing child sex where there is no sex going on because it's all virtual. It seems to me...
SIRKIN: Well, you're showing the idea...
KEYES: Now I'm just saying it seems to me to be exactly parallel to that situation and...
SIRKIN: Absolutely not because there's no real people involved.
KEYES: ... with the end result being that there is harm being caused by it.
SIRKIN: There's absolutely no real people being involved in what would be considered a virtual display of activity between what appears to be adolescents who, in fact, are not adolescents.
KEYES: Representative Mark Foley, it seemed to me that Congress was motivated really by its concern with the effects which this kind of pornography, real or virtual, could have on children and on encouraging the kind of behavior that is abusive toward children. I don't quite understand how the Supreme Court simply ignored that element in its decision. What happened here?
REP. MARK FOLEY (R), FLORIDA: I don't understand it at all, Alan. In fact, many of the times when we arrest somebody who — there's a child disappear, there's a problem, typically, when they arrest the person, the perpetrator, they find loads of child pornography on their computer disk, their screens. So I think what we've seen here in the past is pedophiles find their way to access this type of scenery, if you will, and then play out their little fantasies using real people.
Now I recognize the First Amendment is an important doctrine. I wholeheartedly support it, but I think we've got to make a determination that children are as important as the First Amendment, and so we should draw a bright line at least in trying to protect them from the kind of insidious behavior that these type of pornographic, if you will, virtual reality tours or trips take these adults on and then cause them later to act out those same exciting dramas, if you will.
KEYES: Well, let me ask a question, though, because one of the things that has occurred to me in consequence of taking this is aren't there other kinds of virtual behaviors, including a lot of the violence that goes on in movies and film, virtual and real, animated and otherwise, which some would argue is terribly harmful to our children and everybody else and which, according to this understanding, would, therefore, be subject to prior censorship. Isn't that the case?
FOLEY: Well, I think they make a valid point there, and that's why I've always been an advocate for the First Amendment. But, again, we're dealing with a little bit different standard here. We're not dealing with gunfights, and we're not dealing with skate boarders or things that may be reckless in nature. What we're dealing with is graphic and gratuitous sexual engagement of minors, young people. I think it's wrong whether it's virtually simulated or...
KEYES: Yeah, but — wait a minute.
SIRKIN: We don't have real people involved in it. You're having the expression of a thought, and what you're doing — you can take care of the pedophile who misuses by his own behavior. If he commits a criminal act, prosecute him.
And government has had absolutely no difficulty in going forward with prosecutions. They have never lost a case because somebody raised the defense that the material was virtual reality.
The purpose of these laws was to protect the children who were actually — would be used in making sexually explicit behavior or activity that involves a real child.
FOLEY: Oh, I think the courts also were suggesting somehow that this law would ban “American Beauty,” and nobody has been arrested...
SIRKIN: Yes, it would.
FOLEY: But nobody's been arrested for “American Beauty.”
SIRKIN: Well, because the law has not been enforced at this moment doesn't mean that in some future date that that could take place — you know, that that could, you know, certainly happen. It's happened here in Cincinnati where in 1997 they went after a Pasalini (ph) film that had been made in 1975, and had gotten, you know, just tremendous international awards. So...
FOLEY: But let me...
SIRKIN: ... I think...
FOLEY: Let me say that, if this is the standard we're sinking to in America, that it's our right to gratuitously display minors, young children, 12- and 13-year-old, whether they're simulated or not, then we really are heading into the abyss.
KEYES: But, Representative Foley, I do have a problem, though, when we make no distinction between the simulated and the real. I think if you can demonstrate actual harm from simulated pornography encouraging people to go out and abuse children, that is the kind of approximate harm that I think one could argue to courts and otherwise justify some restrictions on freedom speech, but simply...
SIRKIN: And I don't believe that such evidence has been presented.
KEYES: ... but — wait. Let me finish, though. Let me finish, though.
It seems to me, though, that simply to ignore the distinction between the virtual and the real is going to get us in serious trouble because there's a lot of virtual stuff that goes on in the fictional world of the imagination that is actually criminal, actually harmful, and that some argue actually leads to certain results in the world.
Do we plan at some — in some way or other to open the door to prior censorship for all of it? That includes people who don't like certain kinds of violence depicted in films, people who don't like certain kinds of politically incorrect attitudes depicted in films. Are all of these things going to be subject to prior censorship?
FOLEY: Well, I hope not. I hope we're able to construct a law, and I'm willing — and I'm not an attorney, so let me start with that premise. I am looking at this bill and hoping to be encouraged by experts, if you will, that can make this law or create a better law that can pass muster to the Supreme Court.
We want to protect our kids, we want to do it right by the First Amendment, but I don't want this notion that somehow by producing it in virtual reality that it's not endangering children. I think that's the underlying theme.
KEYES: Hold that thought. Hold that thought one second. We've got to take a break here.
We're going to come right back with our guests after this break.
And later, you'll hear my outrage of the day. A congresswoman who makes outrageous accusations with no basis whatsoever for them.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE.
We're talking with Representative Mark Foley and Louis Sirkin about the Supreme Court's decision yesterday with respect to kiddie porn and virtual pornography.
I want to go quickly to Louis Sirkin and ask a couple of quick questions, Louis, if you'll let me do so, based on what you've been saying. I presume that you, like most of us, don't want to be out there encouraging people to go abusing children and molesting children and so forth and so on. We'll take that for granted, right?
SIRKIN: Yes.
KEYES: Right. If it could, in fact, be shown that virtual pornography was producing and encouraging this kind of harmful effect, would you then accept the idea that it should be limited?
SIRKIN: No, I would not accept that because then I think that what you do is you go out and you prosecute the people that are abusing children, and that's how you do it.
You don't — you don't limit a person's right to think or a person's right to have free expression because there may be some danger posed by the speech. You regulate the conduct by proper punishments and law enforcement.
KEYES: Well, see — but I'm not sure that's consistent, Louis, because, in point of fact, there are certain circumstances in which we do calculate...
SIRKIN: But, Alan, we don't...
KEYES: Wait. Let me finish. We do...
SIRKIN: ... stop the sale of guns because...
KEYES: Hold it.
SIRKIN: ... somebody gets shot from it.
KEYES: No. I'm saying it's a matter of calculation about the nature of the evil we are talking about, and there are certain circumstances where we actually do regulate speech itself because it might produce certain harmful consequences, including riots and things like this. So, if you're incited to riot, your speech can be limited. So, if there is approximate harm...
SIRKIN: If you can show that there's a clear and present danger that — because one immediately would act upon what they see in speech, such as, you know, was decided by the Supreme Court in Brandenburg where if it brings about an immediate retaliatory breach of the peace, then you can regulate that speech.
But until Congress or anybody can come forward and show that there's an immediate, you know, crime committed because someone sees something, now then you can't regulate the expression.
KEYES: Representative Mark Foley, it seems to me a door is opened here, though, because the courts might not be quite as rigid as Louis Sirkin in calculating and thinking through the approximate harm and the social interests that exist and the approximate harm to children. Do you think it would be possible to rewrite this law in such a way as to take account of that possibility?
FOLEY: We certainly are going to try. That's why we're going to go to the experts.
In fact, I'd welcome Mr. Sirkin's input. He may not appreciate nor want to delve into this subject, but I do think there's a reason we have an amber light in between green and red. There's a purpose to doing a lot of things to try and protect the public. You just don't go from green to red. You have to decide what is the standard in which to protect people.
I think we can show cause and effect, and I don't want to wait until another child is killed, raped, or murdered based on the fact that I can't enact a standard to protect them until something violent happens to their personal being. So I hope there's a way to construct a law that does provide for free speech.
But I also recognize the most vulnerable children are now being served up on a platter for pedophiles to view, ogle over, and then ultimately act out their fears, frustrations, or excitement, and that's degrading to children.
KEYES: Well, gentlemen, I want to thank you. It seems to me, though — I don't see common ground here, but I do see the possibility that one could develop in principle an approach that would satisfy what appears, if Louis Sirkin is honest about it, to be a common desire, which is to limit the damage to our children in this country, and I hope that the Supreme Court would be open to that possibility.
Thanks, gentlemen. I really appreciate both of you coming on today.
Next, my outrage of the day. Is Congresswoman Cynthia McKinney representing her district or the axis of oil?
And if you want to make even more sense, sign up for our free daily newsletter at our Web site, keyes.msnbc.com. Each day in your mailbox, you'll get show topics, my weekly column, and links to my favorite articles of the day.
I'll be right back with my outrage of the day. So you stay right there.
(COMMERCIAL BREAK)
KEYES: And now for “My Outrage of the Day.”
U.S. Representative Cynthia McKinney from Georgia recently made statements on a Berkeley, California, radio station in which she accused President Bush of having prior knowledge of the September 11th attacks, knowledge which he and others in his administration concealed for the purpose of personal gain. Personal gain. The next day, she admitted that she didn't have any evidence to back up these accusations.
And yet the Southeastern Legal Foundation revealed yesterday that, according to the Federal Election Commission, the Georgia secretary of state, of 397 contributors who gave more than $100 to McKinney's 1999 and 2000 election campaign, 83 were identifiably Arab or Middle Eastern connected, 21 percent of these contributors to her campaign.
So I don't know if President Bush was motivated by personal gain, but she sure is motivated by political gain. And don't think that it's just a matter of attacking the president either because, if something like this comes out and proved to be true, it would demoralize America in the face of one of our greatest dangers.
I think such irresponsibility is outrageous. That's my sense of it.
Thanks for being with me. “THE NEWS WITH BRIAN WILLIAMS” is next.
Up front tonight, America's war on terror. Are we still winning? Colin Powell is on his way back to Washington from the Mideast empty-handed after one last meeting with Yasser Arafat.
As for the moment, the spotlight fades from Powell's diplomacy. Many questions emerge about its effects on America's war on terror.
This morning, a report in the “Washington Post” put the cold reality on its front page. There's quite a contrast here because as the U.S. faults Israel for capturing or killing the organizers of the terrorist assaults against Israel, U.S. officials, according to this “Washington Post” story, admit that Osama bin Laden may have escaped U.S. efforts at capture at the battle of Tora Bora. Many are blaming Army General Tommy Franks, the war's operational commander, for blowing a chance to get their hands on Osama bin Laden.
At a speech today elsewhere to military cadets in Virginia, President Bush made no mention of bin Laden, but reminded Americans that the war on terror is far from over.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: A small number of outlaw regimes today possess and are developing chemical and biological and nuclear weapons. They're building missiles to deliver them and at the same time cultivating ties to terrorist groups. These regimes constitute an axis of evil, and the world must confront them.
(APPLAUSE)
(END VIDEO CLIP)
KEYES: The tough rhetoric sounds familiar. But it's not clear that it is falling on ears so willing to accept words as a substitute for deeds. The “Wall Street Journal,” for instance, wasn't so warm and fuzzy to President Bush, writing in its lead editorial today, quote: “Suddenly the president who soared by standing in principle seems to have been replaced by an impostor who's lost his foreign policy bearings. This isn't yet the gang that couldn't shoot straight,” the “Wall Street Journal” writes. “But without a course correction it may get there. The administration that once dominated events now seems hostage to them.”
Pretty hard words coming from editorial page that is traditionally sympathetic to Republican presidents. And yet I think that kind of sentiment, a little bit of a question mark and doubt have been placed behind the administration's policy toward the war on terror in general, toward the Mideast in particular, by events of the last several weeks, and by the seeming inability of the administration to develop and articulate an effective approach that allows a consistency between our war on terror and the diplomacy that we are practicing in places like the Middle East.
Now, to discuss these difficulties, we have joining us now Congressman Dana Rohrabacher, Republican from California, and a member of the House International Relations Committee, and Mark Ginsberg, former U.S. ambassador to Morocco during the Carter administration.
I want to start off tonight with my old friend Dana Rohrabacher. Welcome to the show, Dana.
REP. DANA ROHRABACHER (R-CA), HOUSE INTERNATIONAL RELATIONS COMMITTEE: Very good to be with you, Alan.
KEYES: I have a question for you because I have talked on the program about what I see as some of the difficulties and inconsistencies raised by our willingness to treat with Yasser Arafat and muddy the waters about what terrorism is and so forth and so on. Do you believe that in the wake of that kind of diplomacy we are going to face a more difficult road when it comes to pursuing what the president still quite rightly acknowledges to be our primary objective in dealing with a lot of these states that threaten us?
ROHRABACHER: Well, we started this whole war on terrorism out because our people had been slaughtered in New York. So, our primary target was dislodging the Taliban and the al Qaeda control of Afghanistan so that that country couldn't be used as a base against us. And our military and the Bush administration I think has done a magnificent job in accomplishing that step.
They also have singled out, of course, the threat that Saddam Hussein poses to the United States of America. He has a grudge with us. And he will kill millions of our people if he can.
And I just got back from that region. And I can tell you we are laying the groundwork. And the Bush administration is ratcheting up the pressure on Saddam Hussein. And I think we can be very proud of that.
I'll just have to say about Israel and the ongoing problems there on the West Bank, in that particular arena, America needs to be a peacemaker and needs to make sure that we bring the sides together. It is not like it is in Afghanistan or Baghdad. You have got a dispute between two people. And I think the administration is doing a good job in trying.
KEYES: See, I think that that is part of the problem here. Let us go back to September 11th when Osama bin Laden clearly stated that his motive for killing all of the Americans and bringing down the World Trade Center was Israel killing Arabs and America's support for Israel and the killing going on in the Middle East. He justified his terrorist act the same way Yasser Arafat does.
ROHRABACHER: Well, that was, that was...
KEYES: The same way that the Saudis do. These people tell us that terrorism in the name of the Palestinian cause is not terrorism. Well, if that's so, how come Osama bin Laden isn't let off the hook?
ROHRABACHER: Most Muslims know that bin Laden could care less about the Palestinians. He could always care less. He has been at war with the United States — by the way, when I was in Afghanistan fighting against the Russians back in 1988, I ran across bin Laden's camp. And they told me — and here we were there to fight the Russians, and that my Afghan friends told me, “Don't say anything because this guy is crazy. He hates Americans as much as he does Russians. He will come to kill us if he knows there's an American with us.”
Well, guess what? He didn't care less. He could care less about the Palestinians.
KEYES: Dana, we were talking last night about — a Saudi ambassador there to Great Britain — talking about the White House as a force of darkness and all this. Don't try to pretend Osama bin Laden is the only guy who hates America. It seems a lot of Saudis hate Americans, including the Saudi passport holders that brought down the World Trade Center down.
ROHRABACHER: OF course.
KEYES: And those are the people that we are now negotiating with and claiming to accept some proposal from to settle the Middle East. How can we separate these two issues?
ROHRABACHER: Well, you can separate the two issues because in order to find peace in the Middle East, we have got to find a compromise between the Palestinians and the Israelis, which will leave Israel with secure borders and at peace and a homeland for the Palestinians.
They're not going to be obliterated. They're not going to disappear. So, we have to find a formula for compromise and peace. I believe this administration has a good heart, and they're trying to do just that.
KEYES: Well, the great problem is I think that you can't make peace with somebody who is trying to kill you and refuses to stop. That's the great issue that is confronting Israel.
Mark Ginsberg, don't want to leave you out. I haven't forgotten you're there at all. And the question that I want to pose to you is in a way precisely that question. I mean, we see the sort of rabid pursuit of terrorism as a strategic weapon in the Middle East, justified on the basis of pursuing this goal of anti-Israeli success. That is exactly what Osama bin Laden said.
And yet we're trying to justify a different response to the terrorism in the Middle East. We presented this as a seamless global threat when we told the world there could be no neutrality in dealing with terrorism. Have we changed our minds?
MARK GINSBERG, FORMER U.S. AMBASSADOR TO MOROCCO: Well, Alan, let me first preface my remarks to you by saying that as a Democrat, I really believe, on behalf of the American people, all of us want to see this administration succeed in the war on terrorism. But lately, the administration's policy has been frayed, incoherent and inconsistent. It's losing not only domestic support among Democrats and on its right, but abroad it has sent a lot of mixed signals.
First, Vice President Cheney's trip to garner support for an invasion of Iraq totally fails. We have been — this administration essentially ignored the Arab-Israeli conflict for 11 months, and only because of the Cheney mission did they decide to reengage.
The situation in Afghanistan is less than secure while the administration diddles and dawdles over whether or not we should put peacekeeping troops outside of Kabul. And around Europe and in the Middle East we have lost enormous sympathy and support, which frankly we shouldn't be doing.
The American government is not providing sufficient leadership to remain coherent and be true to our ideals that the war on terrorism is more than merely a war against Saddam and a war against bin Laden, who, by the way, this administration considers to be an invisible man. We have to stand tall in the Middle East to defend our ally, Israel, and to provide the Palestinians, obviously, some humanitarian relief and a vision for peace.
But after all, they are the ones who have been providing the support for terrorist activities against Israel. And this administration has been zigging and zagging. And, as a result, it's had a difficult time laying a groundwork for a vision for peace.
And, frankly, Secretary Powell returns from the region largely empty-handed, although he did manage to quell — hopefully quell — some of the violence on Israel's border with Lebanon.
KEYES: Representative Rohrabacher, in one sense, I think we have an illustration on the program tonight of one of the difficulties I think the administration does face because Mark Ginsberg just expressed some unhappiness that comes from one direction. I and the “Wall Street Journal” and others are expressing unhappiness that comes from a different direction, but that clearly is showing concern because there seems to be inconsistency, incoherence, in areas that are vital to moving forward in the war on terror.
You mentioned Saddam Hussein, for instance. Isn't it the case that our Mideast diplomacy actually resulted in having these Arab states rally around Saddam Hussein? Saudi Arabia kisses him on the cheek as if to legitimize his presence. What kind of prelude is that to tough action against Saddam Hussein?
ROHRABACHER: The president right now is involved with laying the foundation for eliminating Saddam Hussein. And he's doing a very responsible job in making sure that he takes that step by step.
Many of these Arab countries that you're talking about have no objection to us taking out Saddam Hussein. But it is understandable that when you see a situation in Israel where you have Jews and Palestinians fighting it out that they don't want the United States just to be all on one side, they want the United States to do peacemaking.
KEYES: Wait, before we go on, I want to reiterate this question, though, because we have got to face the facts here.
ROHRABACHER: Yes.
KEYES: At that Arab summit, Saudi Arabia engineered what was supposed to be reconciliation between Kuwait and Saddam Hussein. The Saudi leader kisses Saddam Hussein on his cheek, “Welcome, brother.” And you're telling me that after that display of circling the wagons around this guy it's not going to be harder for us to take him down. I don't understand.
GINSBERG: Alan, can I add a point here?
KEYES: Yes.
GINSBERG: Not only did the kiss occur in Beirut, Congressman, but also the Kuwaitis and the Iraqis signed an agreement in Beirut, which very few people have reported on. That shows that we have lost so much ground.
Even though I agree with you that we need to take out Saddam, we have no support in the Arab world right now. And Vice President Cheney found that out the hard way.
KEYES: Well, let's — answer that question, though, because I think it's very important. Are we faced with this reality and how do we deal with it?
ROHRABACHER: Well, first let me note, there's many people — I will never try to defend the Saudis. The Saudis, in fact, helped create the Taliban. And we know that. The Taliban in Afghanistan were nothing more than a Wahabi religion, which comes from Saudi Arabia superimposed on the Afghans. So, I'm not going to be defending them.
The question is what is right and what is wrong. And what is right is for America to be a peacemaker, as George Bush is trying to do. And if we give that an honest effort rather than just trying to be on one side of that dispute, we will gain the respect of the Arab world and everybody else. And for those people who are vicious dictators like Saddam Hussein and the Taliban and others who just hate the West, we're never going to get their respect.
GINSBERG: Alan, we are not going to get...
(CROSSTALK)
KEYES: Mark, go ahead.
GINSBERG: We are not going to gain the respect of the Arab world if this administration isn't prepared to use the president's personal popularity to provide the leadership that is necessary to put that vision in place. This president seems unwilling to engage the capital that is necessary to do what we need in the Middle East.
ROHRABACHER: Well, this president just sent his secretary of state over there to be a peacemaker. And now he's getting attacked from all sides. I think the president showed again that he's got a very good heart. He's trying to be a peacemaker. And I think that's the role the United States should play.
KEYES: Dana...
ROHRABACHER: This isn't going to be over by the obliteration by the Palestinian people or the obliteration of Israel.
KEYES: Dana, Dana...
ROHRABACHER: One or both sides have got to accept that each one is going to exist, Israel and Palestine.
(CROSSTALK)
KEYES: One second, I want to get a word in here, Dana, because I think one of the hardest things to learn about diplomacy of any kind is that a good heart and wishful thinking are no substitute for effectiveness. I don't care how much one wishes good things to happen.
ROHRABACHER: Well...
KEYES: The hard challenge of the world is what effectively produces the results.
ROHRABACHER: That's right.
KEYES: And I think — wait, let me finish here because in one sense I believe both of are you wrong, because the first prerequisite right now is to convince the Saudis and Osama bin Laden and Arafat and anybody else who has taken up the weapon of strategic terror that it ain't going to work. That's not what is happening here.
(CROSSTALK)
ROHRABACHER: Alan, first and foremost...
KEYES: Wait, Powell's mission suggested that it does work.
ROHRABACHER: I agree with you.
KEYES: We have given concessions to terror in the Middle East. We are embracing the practitioners of terror in the Middle East.
GINSBERG: Alan, Alan, and that's why the administration has had the difficulty that it has because it has sent such mixed signals on whether or not Mr. Arafat is engaged in supporting terrorism.
ROHRABACHER: Alan...
KEYES: Dana, Dana, quick word...
(CROSSTALK)
KEYES: Wait, we're down to the wire. One quick word from Dana Rohrabacher.
ROHRABACHER: The United States has to set a standard that nobody should be targeting noncombatants, and that when the Palestinians load up a child with a bomb and go to Pizza Hut, that is an act against civilization. And we are against it. But we've also got to make sure...
KEYES: We have got to go.
ROHRABACHER: ... We have also got to make the Israelis, make sure that they don't attack.
(CROSSTALK)
KEYES: Dana, we have got to go. Thank you both for joining me tonight. I really appreciate it. But I — one last word. Don't try to pretend we're going to send that signal by embracing somebody like Arafat, who has practiced the very things we are condemning. It makes no sense.
Anyway, up next, how many of you realize that in Oregon doctors are murdering people? And it's legal. Today, a federal court upheld a state law that allows physician-assisted suicide.
But that's not the final word. We're going to debate that after the break.
Plus, the Supreme Court rules on so-called virtual porn. Is this a victory for free speech or molesters who prey on our children?
But first, does this make sense? Well, the family of Charles Bishop, the 15-year-old who flew a plane into a building, a Tampa high rise, they're suing the maker of the drug Accutane for $70 million, saying it was the drug's fault.
Now tell me, apparently 147 persons taking the drug out of many millions, many, many millions — have had this kind of a problem. And yet these parents a re saying this miniscule chance that the child was influenced by the drug is greater than the possibility the child was influenced by family environment, parents, and all the other things that are closer to home that I guess they don't want to look at.
I think that looking far afield for some distant drug to take the blame for something you might very well have to take responsibility for makes no sense at all. What do you think?
(COMMERCIAL BREAK)
KEYES: Later in the program, the issue is virtual kiddie porn. Does the Supreme Court have a soft spot for virtual porn? Yesterday, the justices made a controversial ruling on the issue. And we're going to have a lively debate here in the next half hour.
Meanwhile, he conversation in the chat room is hot tonight, just like the weather in a lot of places, including here and across the country. You can join in right now at chat.msnbc.com.
But first, today a federal court in Oregon dealt a blow to the Justice Department's efforts to bring an end to legally physician-assisted suicide there in Oregon. Attorney General John Ashcroft challenged the law saying it was not a legitimate medical practice. And he issued a directive preventing doctors from issuing any lethal prescriptions.
Now, Oregon voters have approved physician-assisted suicide in two separate referendums. That's where the law comes from.
Obviously, there's a strong debate here. Are we healing people somehow or another when we kill them in this fashion? Is this, in fact, a legitimate way for doctors behave?
The voters in Oregon have said yes. But at a national level, is there, in fact, a responsibility as we have insisted on respect for civil rights in so many other ways to insist on respect for the basic civil right to life itself?
To debate the issue tonight, we have with us Stephen Bushong, Oregon assistant attorney general who argued in favor of Oregon's assisted suicide law in the federal district court, and Richard Thompson, executive director and chief counsel of the Thomas Moore Law Center, a public interest law firm dedicated to the defense of Christian values. He was the prosecuting attorney as well in the Jack Kevorkian case. Welcome, gentlemen, to MAKING SENSE.
First, let me go to Richard Thompson. Taking a look at the events that have occurred in the court ruling today, do you think that the Justice Department would be justified in moving ahead and challenging this decision? And on what grounds to you think?
RICHARD THOMPSON, EXECUTIVE DIRECTOR AND CHIEF COUNSEL, THOMAS MOORE LAW CENTER: Well, absolutely. I think the attorney general has a responsibility and a constitutional duty to enforce the federal laws. And that's what he was doing in this case.
The Controlled Substances Act has been in effect since 1970. And they basically amended it to say that physicians could only dispense drugs if they had a legitimate medical purpose. And the attorney general interpreted that to mean that the Oregon physicians could not dispense federally controlled substances to end the lives of patients.
KEYES: Stephen Bushong, I know that Oregon voters have supported this concept. But the attorney general is acting on the basis of a federal law that requires basically that he try to stop people from dispensing these dangerous drugs when there isn't a medically acceptable purpose. Can the voters of Oregon decide that killing folks is a medically acceptable practice?
STEPHEN BUSHONG, OREGON ASSISTANT ATTORNEY GENERAL: Well, actually, Alan, what Congress gave the attorney general the authority to do is a lot narrower than as you stated. What the attorney general can do is regulate the practice of dispensing drugs to combat the problem of drug abuse and drug trafficking.
The practice that's been authorized by the Oregon law has nothing to do with that. And that's what the court ruling said today.
KEYES: Well, see the great problem...
BUSHONG: Well...
KEYES: ... go ahead, go ahead...
THOMPSON: The question is, does the attorney general as the chief law enforcement officer of the nation have the right to enforce the Controlled Substances Act the way he sees it? Now, this is not something new that Attorney General Ashcroft did. In fact, the DEA administrator under Clinton initially interpreted the law the same way as the Attorney General Ashcroft did.
However, about seven months after DEA Administrator Constantine interpreted the law, Attorney General Reno overruled him. So, this is not something that Attorney General Ashcroft merely decided out of the blue that this would be a good interpretation.
In fact, it seems outrageous to me that physicians would believe that their healing profession is now interpreted to mean the right to kill their patients. And that's what it's all about. And it's the right of the federal government to come in and interpret their laws to prevent the state of Oregon of Oregon to begin the first steps, as Nazi Germany did back in 1933, when they said that there was such a thing as a life not worthy to be lived.
So, this has a greater impact than merely the attorney general deciding a specific interpretation of the Controlled Substances Act that he has the right to do. But it means more than that. Can every state now in the union decide the way they want to interpret the law and then avoid the federal implications there?
BUSHONG: If I may, the people of Oregon have done nothing like the reference to Nazi Germany. That's just completely outrageous.
What the people of Oregon have done is authorized dying people at the final stages of their terminal illness to take a step that's within their own control. That doesn't have anything to do with today's court ruling. The court ruling upholds...
THOMPSON: Wait a minute. Physicians have to rule on that.
BUSHONG: Yes, they do.
THOMPSON: Physicians are the ones who prescribes the deadly medicine. And those are the first steps that Nazi Germany did. They started out with the idea that there was such things as lives not worthy to be lived.
And it was the physicians that initially got involved in it. And it seemed like a compassionate thing to do. Ultimately, we know that once you start down the road, that slippery slope, more and more people are added on to it. And that's the danger...
KEYES: Wait, there is a question, though...
(CROSSTALK)
KEYES: ... before you continue, let me ask a question of Stephen, though, because I'm still trying to understand something here. Are you saying that the attorney general can effectively carry out this law without distinguishing between legitimate medical uses of these controlled substances and medical uses that are not legitimate? He doesn't have to do that every time he enforces the law?
BUSHONG: Well, the law has nothing to do with the practices of dying patients and their doctors.
KEYES: No, no, no. Stephen, wait a minute. Wait a minute. I just want a simple question. Does the attorney general have to bring to bear a judgment in any given case? I mean, there might be people out there who are dispensing these drugs to make money and do other illegal things and pretending that it's somehow in pursuit of their legal practice. Doesn't the enforcement of the law require that he distinguish between those legitimate uses of the controlled substances and those that are simply pretended legitimate uses?
BUSHONG: In a specific case within the context of a problem of drug trafficking and drug abuse, he does.
KEYES: So, he does have to do this stuff?
BUSHONG: Yes he does. In a specific case.
KEYES: Let me ask a question, though, because are you now acknowledging that he can't carry out the law without making this sort of a judgment, right?
BUSHONG: Well, that's not what he did here.
KEYES: If in the case — maybe it is, maybe it isn't. I think that's what the court has to decide. But if are you looking at a situation where a physician says, “I am using this controlled substance in a way that conforms with the proper understanding of medical practice,” and the attorney general disagrees with that physician, you are saying that the people of Oregon get to decide on that difference? Why are they the experts here?
BUSHONG: Well, whether or not a particular practice is a legitimate medical one is a policy decision that the voters of any state can make. That's what the United States Supreme Court said in Washington versus Gillespie.
THOMPSON: That's not true.
KEYES: Go ahead. Go ahead, Richard.
THOMPSON: That's not true. Just last year, a unanimous Supreme Court said that the voters of California could not legitimize the use of marijuana for medical purposes even though that was an initiative referendum that the voters took. The attorney general of the United States filed a lawsuit against an organization that was trying to dispense marijuana for medical purposes. And the United States Supreme court said that it is up to the attorney general to enforce the Controlled Substances Act. And it is a unified act that all 50 states must abide by.
And Oregon is out there all by itself. All of the other 49 states have not in any way legitimized physician-assisted suicide, have not allowed doctors to dispense death-dealing drugs to end the lives of patients who they believe do not have a life worthy to be lived.
BUSHONG: Well, what that...
THOMPSON: So, there is a clear — there is a clear decision by the United States Supreme Court on the very issue that Oregon has taken a position on.
KEYES: Go ahead, Stephen.
BUSHONG: The decision by the United States Supreme Court was in Washington versus Glucksberg, where the issue of physician assistance in hastening death was at issue, and where the court said that that was a policy issue for the states to decide, that the states are engaged in that policy debate as we speak. And that's exactly what today's ruling allows.
THOMPSON: That's not true. What the United States Supreme Court said in that case was that states had a constitutional right to ban physician-assisted suicide. In fact, they went on to say that for 700 years England and the United States have had policies against assisted suicide. And the policy that they were looking at now was a very good policy because it prevented the states from taking their own action.
(CROSSTALK)
KEYES: Can I ask one last question, though?
THOMPSON: Sure.
KEYES: Stephen, I'm still confused by your response here. It would seem to me that if I have to make a judgment about what is, in fact, a proper medical use of a given controlled substance, I wouldn't take a vote on it. I would look at what doctors do. And I would consult with people who do it and so forth and so on. I would make that judgment.
You're saying here that the attorney general of the United States must subject with respect to that technical judgment about what's a proper medical use of a controlled substance, that he lets the people of Oregon decide and doesn't bother with might actually be medical practice. Is that right?
BUSHONG: No. Because what a doctor might do and what a legitimate medical practice might be within the context of a dying person in the final stages of their terminal illness is something that was debated in Oregon during two election campaigns. And the people of Oregon made that policy decision.
That they can do. That's what the court ruling today affirmed.
KEYES: No. The great problem that we have here is you are asserting that the people of Oregon can do it. And I'm saying that the attorney general of the United States has under the law a responsibility to make the judgment, and that he does not have to accept the uninformed, untrained, un-backed-up judgment of the non-doctor people of Oregon, even though they vote 1,000 times to say that something is medically acceptable.
But, gentlemen, we have run out of time. Thank you both. I really appreciate it. Fascinating discussion.
(CROSSTALK)
KEYES: Obviously one that is going to continue to be controversial.
Next, another controversial subject. And that one that is having a lot of folks, I think, roiling with anger around the country. The Supreme Court rules against stopping so-called virtual kiddie porn. Does that mean our kids are in danger?
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
(NEWSBREAK)
KEYES: Welcome back to MAKING SENSE. I'm Alan Keyes.
Now on to the — to yesterday's Supreme Court decision that struck down a 1996 federal law that banned appearing — appearing, mind you — to show sexually explicit images of children. This is called virtual pornography.
Now, before we get to the discussion and the — are able to hear the different viewpoints of our guests, I want you to look at MSNBC's report by Pete Williams.
(BEGIN VIDEOTAPE)
PETE WILLIAMS, NBC CORRESPONDENT (voice-over): Prompted by advances in computer technology that can create realistic images like these from the movie “Final Fantasy,” Congress in 1996 banned works that appear to show sexually explicit images of children, whether done entirely by computer without using any actual children or made by using adults who looked so young they seem to be children. Such images, Congress said, could stimulate demand for real child pornography.
But the Supreme Court, in an opinion by Justice Kennedy, struck the law down. By a vote of 6 to 3, the court said banning images that don't exploit actual children is an unconstitutional limit on free expression. Youthful sexual activity is a theme older than Shakespeare, the court said, and the law would prohibit legitimate works, including movies like “American Beauty.”
A publishers' group says Congress cannot ban free speech that might cause illegal activity.
R. BRUCE RICH, PUBLISHER COALITION: We must not (UNINTELLIGIBLE) expression in our society. You don't censor it — you don't allow the government to censor it out of fears about its possible effects on the population.
WILLIAMS: But the attorney general says the ruling puts a new burden on prosecutors to prove that the pornographic pictures they seize show actual children.
JOHN ASHCROFT, ATTORNEY GENERAL: The United States Supreme Court made our ability to prosecute those who produce and possess child pornography immeasurably more difficult.
WILLIAMS (on-camera): Attorney General Ashcroft says he'll work with Congress to find ways to fix the law and ban virtual child pornography.
Pete Williams, NBC News, at the Supreme Court.
(END VIDEOTAPE)
KEYES: Joining us now is Congressman Mark Foley, Republican from Florida and deputy majority whip. He was asked today by the attorney general to reintroduce the anti-child pornography legislation that the Supreme Court overturned yesterday.
Also with us, Louis Sirkin, a First-Amendment attorney who argued the case in front of the Supreme Court.
Gentlemen, welcome both of you to MAKING SENSE.
I want to start with Louis Sirkin because it seems to me that one of the things that I think is outraging a lot of people around the country is that this seems to be a decision that takes an abstract concern with some kind of free expression generally understood and applies it in such a way as to ignore the concrete and actual harm and damage that can be done to children as a result of what is being encouraged here. How can the court be justified in coming to a conclusion like this?
LOUIS SIRKIN, FIRST-AMENDMENT ATTORNEY: Well, first of all, the court came to the conclusion to protect the First Amendment. To try to ban something that doesn't really happen or really exist and no real child is involved is making a crime out of something that is not a crime. It is only a crime if a real child is involved, and that's how the court can do it, and the First Amendment protects exactly what the court held was unconstitutional by the congressional act.
KEYES: But I had thought that there was an — I thought there was an old principle that you shouldn't shout fire in a crowded theater, meaning to say that some exercises of free speech represent in certain environments approximate harm that outweighs the free speech right. There isn't approximate harm to the young and innocent children who will be preyed upon by the kind of behavior this sort of stuff encourages?
SIRKIN: There was absolutely no concrete evidence presented to Congress that that would happen. So it is not like the situation where you scream fire in a crowded theater when there is no fire.
KEYES: Well, I'm not quite sure why you say that since, with virtual pornography, they are basically showing child sex where there is no sex going on because it's all virtual. It seems to me...
SIRKIN: Well, you're showing the idea...
KEYES: Now I'm just saying it seems to me to be exactly parallel to that situation and...
SIRKIN: Absolutely not because there's no real people involved.
KEYES: ... with the end result being that there is harm being caused by it.
SIRKIN: There's absolutely no real people being involved in what would be considered a virtual display of activity between what appears to be adolescents who, in fact, are not adolescents.
KEYES: Representative Mark Foley, it seemed to me that Congress was motivated really by its concern with the effects which this kind of pornography, real or virtual, could have on children and on encouraging the kind of behavior that is abusive toward children. I don't quite understand how the Supreme Court simply ignored that element in its decision. What happened here?
REP. MARK FOLEY (R), FLORIDA: I don't understand it at all, Alan. In fact, many of the times when we arrest somebody who — there's a child disappear, there's a problem, typically, when they arrest the person, the perpetrator, they find loads of child pornography on their computer disk, their screens. So I think what we've seen here in the past is pedophiles find their way to access this type of scenery, if you will, and then play out their little fantasies using real people.
Now I recognize the First Amendment is an important doctrine. I wholeheartedly support it, but I think we've got to make a determination that children are as important as the First Amendment, and so we should draw a bright line at least in trying to protect them from the kind of insidious behavior that these type of pornographic, if you will, virtual reality tours or trips take these adults on and then cause them later to act out those same exciting dramas, if you will.
KEYES: Well, let me ask a question, though, because one of the things that has occurred to me in consequence of taking this is aren't there other kinds of virtual behaviors, including a lot of the violence that goes on in movies and film, virtual and real, animated and otherwise, which some would argue is terribly harmful to our children and everybody else and which, according to this understanding, would, therefore, be subject to prior censorship. Isn't that the case?
FOLEY: Well, I think they make a valid point there, and that's why I've always been an advocate for the First Amendment. But, again, we're dealing with a little bit different standard here. We're not dealing with gunfights, and we're not dealing with skate boarders or things that may be reckless in nature. What we're dealing with is graphic and gratuitous sexual engagement of minors, young people. I think it's wrong whether it's virtually simulated or...
KEYES: Yeah, but — wait a minute.
SIRKIN: We don't have real people involved in it. You're having the expression of a thought, and what you're doing — you can take care of the pedophile who misuses by his own behavior. If he commits a criminal act, prosecute him.
And government has had absolutely no difficulty in going forward with prosecutions. They have never lost a case because somebody raised the defense that the material was virtual reality.
The purpose of these laws was to protect the children who were actually — would be used in making sexually explicit behavior or activity that involves a real child.
FOLEY: Oh, I think the courts also were suggesting somehow that this law would ban “American Beauty,” and nobody has been arrested...
SIRKIN: Yes, it would.
FOLEY: But nobody's been arrested for “American Beauty.”
SIRKIN: Well, because the law has not been enforced at this moment doesn't mean that in some future date that that could take place — you know, that that could, you know, certainly happen. It's happened here in Cincinnati where in 1997 they went after a Pasalini (ph) film that had been made in 1975, and had gotten, you know, just tremendous international awards. So...
FOLEY: But let me...
SIRKIN: ... I think...
FOLEY: Let me say that, if this is the standard we're sinking to in America, that it's our right to gratuitously display minors, young children, 12- and 13-year-old, whether they're simulated or not, then we really are heading into the abyss.
KEYES: But, Representative Foley, I do have a problem, though, when we make no distinction between the simulated and the real. I think if you can demonstrate actual harm from simulated pornography encouraging people to go out and abuse children, that is the kind of approximate harm that I think one could argue to courts and otherwise justify some restrictions on freedom speech, but simply...
SIRKIN: And I don't believe that such evidence has been presented.
KEYES: ... but — wait. Let me finish, though. Let me finish, though.
It seems to me, though, that simply to ignore the distinction between the virtual and the real is going to get us in serious trouble because there's a lot of virtual stuff that goes on in the fictional world of the imagination that is actually criminal, actually harmful, and that some argue actually leads to certain results in the world.
Do we plan at some — in some way or other to open the door to prior censorship for all of it? That includes people who don't like certain kinds of violence depicted in films, people who don't like certain kinds of politically incorrect attitudes depicted in films. Are all of these things going to be subject to prior censorship?
FOLEY: Well, I hope not. I hope we're able to construct a law, and I'm willing — and I'm not an attorney, so let me start with that premise. I am looking at this bill and hoping to be encouraged by experts, if you will, that can make this law or create a better law that can pass muster to the Supreme Court.
We want to protect our kids, we want to do it right by the First Amendment, but I don't want this notion that somehow by producing it in virtual reality that it's not endangering children. I think that's the underlying theme.
KEYES: Hold that thought. Hold that thought one second. We've got to take a break here.
We're going to come right back with our guests after this break.
And later, you'll hear my outrage of the day. A congresswoman who makes outrageous accusations with no basis whatsoever for them.
You're watching America's news channel, MSNBC.
(COMMERCIAL BREAK)
KEYES: Welcome back to MAKING SENSE.
We're talking with Representative Mark Foley and Louis Sirkin about the Supreme Court's decision yesterday with respect to kiddie porn and virtual pornography.
I want to go quickly to Louis Sirkin and ask a couple of quick questions, Louis, if you'll let me do so, based on what you've been saying. I presume that you, like most of us, don't want to be out there encouraging people to go abusing children and molesting children and so forth and so on. We'll take that for granted, right?
SIRKIN: Yes.
KEYES: Right. If it could, in fact, be shown that virtual pornography was producing and encouraging this kind of harmful effect, would you then accept the idea that it should be limited?
SIRKIN: No, I would not accept that because then I think that what you do is you go out and you prosecute the people that are abusing children, and that's how you do it.
You don't — you don't limit a person's right to think or a person's right to have free expression because there may be some danger posed by the speech. You regulate the conduct by proper punishments and law enforcement.
KEYES: Well, see — but I'm not sure that's consistent, Louis, because, in point of fact, there are certain circumstances in which we do calculate...
SIRKIN: But, Alan, we don't...
KEYES: Wait. Let me finish. We do...
SIRKIN: ... stop the sale of guns because...
KEYES: Hold it.
SIRKIN: ... somebody gets shot from it.
KEYES: No. I'm saying it's a matter of calculation about the nature of the evil we are talking about, and there are certain circumstances where we actually do regulate speech itself because it might produce certain harmful consequences, including riots and things like this. So, if you're incited to riot, your speech can be limited. So, if there is approximate harm...
SIRKIN: If you can show that there's a clear and present danger that — because one immediately would act upon what they see in speech, such as, you know, was decided by the Supreme Court in Brandenburg where if it brings about an immediate retaliatory breach of the peace, then you can regulate that speech.
But until Congress or anybody can come forward and show that there's an immediate, you know, crime committed because someone sees something, now then you can't regulate the expression.
KEYES: Representative Mark Foley, it seems to me a door is opened here, though, because the courts might not be quite as rigid as Louis Sirkin in calculating and thinking through the approximate harm and the social interests that exist and the approximate harm to children. Do you think it would be possible to rewrite this law in such a way as to take account of that possibility?
FOLEY: We certainly are going to try. That's why we're going to go to the experts.
In fact, I'd welcome Mr. Sirkin's input. He may not appreciate nor want to delve into this subject, but I do think there's a reason we have an amber light in between green and red. There's a purpose to doing a lot of things to try and protect the public. You just don't go from green to red. You have to decide what is the standard in which to protect people.
I think we can show cause and effect, and I don't want to wait until another child is killed, raped, or murdered based on the fact that I can't enact a standard to protect them until something violent happens to their personal being. So I hope there's a way to construct a law that does provide for free speech.
But I also recognize the most vulnerable children are now being served up on a platter for pedophiles to view, ogle over, and then ultimately act out their fears, frustrations, or excitement, and that's degrading to children.
KEYES: Well, gentlemen, I want to thank you. It seems to me, though — I don't see common ground here, but I do see the possibility that one could develop in principle an approach that would satisfy what appears, if Louis Sirkin is honest about it, to be a common desire, which is to limit the damage to our children in this country, and I hope that the Supreme Court would be open to that possibility.
Thanks, gentlemen. I really appreciate both of you coming on today.
Next, my outrage of the day. Is Congresswoman Cynthia McKinney representing her district or the axis of oil?
And if you want to make even more sense, sign up for our free daily newsletter at our Web site, keyes.msnbc.com. Each day in your mailbox, you'll get show topics, my weekly column, and links to my favorite articles of the day.
I'll be right back with my outrage of the day. So you stay right there.
(COMMERCIAL BREAK)
KEYES: And now for “My Outrage of the Day.”
U.S. Representative Cynthia McKinney from Georgia recently made statements on a Berkeley, California, radio station in which she accused President Bush of having prior knowledge of the September 11th attacks, knowledge which he and others in his administration concealed for the purpose of personal gain. Personal gain. The next day, she admitted that she didn't have any evidence to back up these accusations.
And yet the Southeastern Legal Foundation revealed yesterday that, according to the Federal Election Commission, the Georgia secretary of state, of 397 contributors who gave more than $100 to McKinney's 1999 and 2000 election campaign, 83 were identifiably Arab or Middle Eastern connected, 21 percent of these contributors to her campaign.
So I don't know if President Bush was motivated by personal gain, but she sure is motivated by political gain. And don't think that it's just a matter of attacking the president either because, if something like this comes out and proved to be true, it would demoralize America in the face of one of our greatest dangers.
I think such irresponsibility is outrageous. That's my sense of it.
Thanks for being with me. “THE NEWS WITH BRIAN WILLIAMS” is next.