Alan Keyes
June 20, 2002

ALAN KEYES, HOST: Welcome to MAKING SENSE. I'm Alan Keyes.

Tonight, as the violence continues in the Mideast, we're going to show you a shocking piece of videotape obtained by the Israeli Defense Forces, a tape allegedly made by Hamas on how to make a suicide bomb. We'll go through it later in the show.

But first, up front tonight, a major reversal from the Supreme Court on an aspect of the death penalty. Today, the high court ruled against the practice of executing the mentally retarded.

Before we get to our guests, here's MSNBC chief justice correspondent Pete Williams.

(BEGIN VIDEOTAPE)

PETE WILLIAMS, NBC JUSTICE CORRESPONDENT (voice-over): Today's decision spares the life of this man, Daryl Atkins of Virginia, found guilty of forcing an Air Force enlisted man to withdraw money from an ATM six years ago, then killing him, shooting him eight times. At the trial, a defense psychologist said that Atkins is mildly retarded, an I.Q. in the lowest 1 percent of the population. Even so, the jury sentenced him to death.

But today, the Supreme Court ruled that executing the mentally retarded violates the Constitution's ban on excessive punishment, as defined by evolving standards of decency. Of the 38 states with the death penalty, 18 now ban capital punishment for the retarded. Most of those laws passed within the last decade. That's proof, the court said, that a national consensus has developed against the practice. Mental health groups say the retarded don't have the capacity to fully understand their actions.

DOREEN CROSER, AMERICAN ASSOCIATION ON MENTAL RETARDATION: We're profoundly grateful that the court has seen fit to outlaw this barbaric practice.

WILLIAMS: But writing for the court's three dissenters, Justice Scalia said the states have acted so recently that it's too soon to tell whether a ban is sensible in the long term. And he said defendants in death penalty cases may now try to fake mental retardation. A Virginia state prosecutor agrees. Detecting retardation, he says, is not an exact science, involving not just a written exam, but also an evaluation of behavior years in the past.

ROBERT HORAN, VIRGINIA PROSECUTOR: What do you think would possess anybody to do their best on that test? And that's going to happen.

WILLIAMS: But defense lawyers say experience from the states shows that won't happen.

GEORGE KENDALL, NAACP LEGAL DEFENSE FUND: We can look in states that have banned the execution of the mentally retarded for the last decade. And we have not seen games being played in most cases.

WILLIAMS (on camera): As for what comes next, legal experts say it may be years before the court bans executing others, the mentally ill, or even juveniles, because the states are nowhere near agreement on that.

Pete Williams, NBC News, at the Supreme Court.

(END VIDEOTAPE)

KEYES: Joining us now from Houston, Texas, Brian Wice, a criminal defense attorney and anti-death penalty advocate. And from Austin, Texas, Rusty Hubbarth, the vice president of legislative affairs of Justice For All, a victims' rights advocacy group. Gentlemen, welcome to MAKING SENSE.

RUSTY HUBBARTH, JUSTICE FOR ALL: Thank you.

KEYES: Let me start with a question for Brian, because it seems to me that some would argue that we're looking at a legal process that at various stages along the way, tests the accused to see whether they are in fact capable of first, standing trial and understanding what's going on in that proceeding. Second, the jury and others to have consider whether or not they had the moral and mental capacity to understand the nature of their act, distinguish right from wrong, act upon that distinction in a way that was fully capable and responsible. Given those aspects of the process, why is another test needed once the penalty has been determined?

BRIAN WICE, ANTI-DEATH PENALTY ADVOCATE: Because, Alan, you have to distinguish between competencency to stand trial on the one hand, and the ability to fully appreciate the consequences of one's wrongdoing on the other.

And what the Supreme Court majority made clear today is that a class of people who are mentally challenged, mentally retarded, don't fully understand and appreciate the nature and consequences of their action, so that the two main thrusts of capital punishment, deterrence and retribution, are never fully served. That's the lynchpin in their ruling today.

KEYES: Well, see, the thing that I find a little hard to understand, though, is if in the course of a trial, you have to make the determination that here was an individual who, when they were engaged in this activity, were sufficiently morally and mentally capable to understand the nature of their acts, to distinguish right from wrong. Why would they not have the same culpability and face the same consequences as others who have been determined to have that same basic capacity?

Why are we going to say that, "Yes, you understood what you were doing, but no, you don't have to pay the same consequence as others"?

WICE: Well, I mean, quite simply, because the standard for competency and the standard for insanity — as we saw here in the Andrea Yates case not too long ago — is so nebulous. I mean, as long as you're not spewing venom, as long as your head doesn't spin around like “The Exorcist,” you're going to be found competent and you're going to be found sane.

But at some greater level, Alan, death is different. And the Supreme Court has made that clear over the last half century. And the ruling today only says that the bases that exist for capital punishment don't apply to those people who are mentally retarded because there is no compelling societal interests in executing those with the sophistication level of a fourth or fifth grader.

KEYES: Now, Rusty Hubbarth, at one level, when I have read and thought about this question, it does seem that at some level of common sense, we don't hold people fully responsible and we don't visit upon them the full consequences of their actions when we don't think that they are capable in various senses of really understanding and bearing the burden of what they have done. That's why we distinguish, for instance, children from adults and so forth.

If you're dealing with an individual who, in terms of their mental capacities, is frozen as it were in a more child-like state, doesn't it make sense to make this distinction?

HUBBARTH: Yes, but the question was diminished capacity. What the court left open was the finding of mental retardation. Any decent defense counsel can find a way to manipulate behaviors prior to the age of 18, plus substandard scores on various tests — it wasn't specified which tests — to make this person appear by one or two points below the bright line for execution.

We'll be executing people now that will test at 71 on the IQ scale, but if they test below 70, and this includes everyone sitting on death row at this point and time, who are probably already lining up to make these claims, then it has become the "get-out-of-execution-free" case. And in numerous cases throughout the country, if you have people that were facing death, have drawn this out for the last two decades, and then at this point and time, they find that they're not going to be executed, commuted to life imprisonment, they've already served the minimum to be released in numerous states across the country.

We are going to have victims from those people and we're going to have victims from the people who now look at this as a diminishment of the deterrent factor of the death penalty, and there is a deterrent factor. And one thing...

KEYES: Well...

HUBBARTH: Go ahead, please.

KEYES: No, what I was going to raise, though, was an issue. We're looking at states that have already put in place this kind of a ban. We also have experience already of the need to make judgments and determinations about the capacities, mentally and morally of other folks. ... So it looks like technically we've lost Rusty.

So Brian, the question that I was going to ask Rusty is since we're looking at that in any case, why is it somehow a new challenge that some folks are saying we won't be able to meet to make the same kinds of judgments in this particular case?

WICE: Well, I don't think it's going to be that difficult, Alan. I think this is probably much more a concern than need be. Certainly in Texas, for instance, the legislature is going to have to enact a procedural vehicle by which the question of mental retardation is ultimately put to a jury, and whether that's another special issue, such as we have now, remains to be seen.

But I disagree with what Rusty had to say at one level, and I thinkthis is important. The fact that you may be a mentally retarded death row inmate does not mean on the wings of this ruling that you will be sentenced to do life in prison because of so many procedural vagaries and road blocks. There are at least three inmates in Texas who got stays as a result of their mental retardation who may not be able to litigate that at the end of the day because their lawyers didn't raise that claim in their first post-conviction writ. You are still going to see mentally retarded inmates executed as a result of their trial lawyers and their appellate lawyers incompetent.

KEYES: Now, I thought it was kind of interesting that if you read the nuances of the opinions here, even the dissenting justices didn't simply dismiss the idea that you would institute this kind of a ban. But they did suggest that the experience we have had of them so far doesn't justify the court in saying that some new standard of national decency has been established.

They seem to be making less an argument in principle than a prudential argument about our current circumstances and the judgment we should make about them.

WICE: And I think your take on the dissenting opinions is absolutely correct, Alan. If you go back and you read Chief Justice Rehnquist's tone and Anthony Scalia's dissent, they went out of their way to castigate the majority for essentially creating new math, essentially rewriting history when it came time to what legislatures in the various states did.

And at the end of the day, I think the concern the dissent expressed was that as a result of the personal beliefs of six justices, that they are on their way to making sure that the death penalty as it continues to exist among the several states doesn't exist in that form or fashion.

KEYES: Now, one last question very quickly. Obviously this raises concerns. I happen to be someone who supports the death penalty and capital punishment in certain cases. I know Americans who feel the same way. Are we looking at some kind of back door effort to get rid of the death penalty or is this going to remain a kind of limited exception?

WICE: No, I think it's the latter. I think it's a limited exception. I think any time the Supreme Court ultimately opts to grant relief in the context of the capital case, you see the hue and cry that it's nothing more than a back door attempt to legislate the death penalty out of existence. We're not going to see that.

I think we have a Supreme Court that is solidly in the camp of law enforcement. What surprised me today about their opinion, Alan, wasn't that it was 5-4, but that it was 6-3 with Anthony Kennedy joining Sandra Day O'Connor.

KEYES: Well, I want to thank you for being with us. I should explain to everyone, we had some technical difficulties. That's why we lost Rusty Hubbarth. And we weren't able to overcome them in time. But I want to thank both these gentlemen for joining us today, for giving us a sense of the differing viewpoints on this very important, could be landmark decision in terms of this area of application for the death penalty.

When we come back, we'll be looking at another legal area raised now in the context of our war on terror that got an even more clear statement from the administration. What the implications are for American citizens whom the president labels enemy combatants. Should they enjoy the benefits of due process while in detention? The Justice Department now has a brief the definitely says "no" in a pretty broad way. Civil liberties advocates disagree. We'll have a debate.

And later, Bomb Making 101, courtesy of Hamas. You won't believe your eyes and ears here on America's news channel, MSNBC.

(COMMERCIAL BREAK)

KEYES: Coming up, while Yasser Arafat publicly calls for an end to the suicide bombing, Israel says it has a tape allegedly made by Hamas, which shows how to make the bombs themselves. We'll play clip from the chilling video and talk to terrorism analyst Steve Emerson in our next half-hour.

A reminder that the chat room is truly busy tonight, and you can join in right now at chat.msnbc.com.

But now, if you're labeled as an enemy combatant by the president, should you have a right to legal counsel and other elements of due process? Now we've looked at this issue briefly before on the program. It's obviously an ongoing effort that is developing and will have several iterations in the court.

A brief was filed in one of those cases yesterday, I believe it was, and the Justice Department is now clearly taking the position that those labeled enemy combatants shouldn't have the right to legal counsel and other elements of due process. Since 9/11, three American citizens that we know of have been labeled enemy combatants: John Walker Lindh, Yasser Esam Hamdi, the two so-called American Talibans, as well as Jose Padilla. He was arrested in May under suspicion that he was planning to participate in a dirty bomb attack.

In a brief filed yesterday, the Justice Department argued — quote — "There is no right under the laws and customs of war for an enemy combatant to meet with counsel during his detention. The court may not second guess the military's enemy combatant determination. Going beyond that determination would require the courts to enter an area in which they have no competence, much less institutional expertise, intrude upon the constitutional prerogative of the Commander in Chief and possibly create a conflict between judicial and military opinion highly comforting to the enemies of the United States."

That last part was citing a 1950 Supreme Court ruling. Some critics say this is like the detention of Japanese-Americans during World War II. Others say it's more dangerous.

Joining us now to debate this, Cliff May, the president of the Foundation For The Defense of Democracies; and James Curtis, host of Court TV's “Closing Arguments.”

Gentlemen, welcome back to MAKING SENSE.

CLIFF MAY, FOUNDATION FOR THE DEFENSE OF DEMOCRACIES: Thank you, Alan.

KEYES: Now, obviously, we're seeing an evolution here in an area that was put on the table in the Padilla case, has been there for a while in other cases. But now I think the arguments are starting to come forward and be definitively made. Now the Justice Department in the brief that it has filed is claiming a pretty broad and unchallengeable authority to put the label enemy combatant on someone, and basically say, "That can't be reviewed by the courts. That's the prerogative of the Commander in Chief, and it is essentially a military judgment."

James Curtis, what do you think are the implications of that argument?

JAMES CURTIS, COURT TV: Well, I think it's frightening, Alan. I think that everyone in this country should be scared to death of the fact that, and the idea that, the government can come in and say, "You, Alan Keyes, because you flew to a foreign country that we have problems with — and again, not the country itself, but some of the individuals within that country — you are now labeled an enemy combatant, and therefore may be held in communicado and without the privilege and right that is associated with being truly declared an enemy of the United States in a time of war." And that is not being charged with anything. Therefore, no right of counsel attaches.

KEYES: Well, but, Cliff May, in the present environment, one of the things that has from the very beginning — and I articulated this on the program, I've said it in speeches around the country — it has worried me about the war on terror, that it has certain characteristics very different from any other war, especially in the fact that it's kind of open-ended, that it exists in a context where you don't really have ongoing theaters of war. We're punctuated every now and again by these terrible events, but otherwise we are living in times indistinguishable for most of us from times of peace.

And that means that in a certain sense, these extraordinary powers are being invoked in times that for the most part for us are ordinary. And we have a label now, "enemy combatant," that can be stuck on anybody, without, apparently, if the Justice Department has its way, any challenge in the courts. They're telling courts to butt out of it.

If that is the case, what — and this is key question now because I think we understand a little bit about enemy combatant and so forth. What is to prevent, and I'm not talking about right now with George W. Bush. Remember, we're not dealing with "just right now." This thing could go on for a generation or two.

It could go through several presidents before the war on terror ends. What's to prevent the abuse of this very broad power to put a label on somebody without due process, deprive them of their basic citizen rights and drop them down the deep hole of detention for good?

MAY: At this moment, Alan, nothing, but there's an important distinction that needs to be made here and that's the distinction between law and policy. What you heard from the Justice Department today, very clearly is that the law has been set on this. It's been set — terms like enemy combatant go back 60 years to ex parte Quirin.

Look, it works this way. If you were in a state of war and you come upon an enemy, you may kill that enemy without due process. You may capture that you are enemy, and if you do, that enemy becomes either a prisoner of war or an enemy combatant. There's a distinction there, which we can discuss later if we have time.

If he becomes an enemy combatant, you can do one of two things. Detain him in a prison of war camp or a detainee camp like Guantanamo or you can bring him for trial in some form, military tribunal or civil trial. It's up to you. That's the law.

Now if you want — and we should be very clear on that. If you want to say, "You know what? We need to change policy or change the law," then you can consider it. The kind of thing you might want to consider is when you have enemy combatants, perhaps there would be a three-judge panel or a court like the foreign intelligence surveillance act court, very top secret, where they would see the evidence, not determine guilt, but simply determine that yes, as a preponderance of evidence, that this person is an enemy combatant.

CURTIS: But see, Alan, there's a very big problem here.

KEYES: James, go ahead.

CURTIS: There's a very, very big problem. The basic problem is that there is no declaration of war. Therefore, there is no ...

MAY: It's not necessary.

CURTIS: ... context within which we are implementing these rules. Cliff May cites Supreme Court case of Quirin — that is, Enray Quirin, a 1942 case, an extremely different scenario. And we should distinguish here between people that are combatants that are met on the battlefield and individuals as in Kieran where individuals who were German nationals, went to Germany from the United States, came back via submarine, landed in Florida, landed in New York, took off their Nazi uniforms, donned plain clothes . . .

MAY: James . . .

CURTIS: ... had bomb making equipment with them along with money.

(CROSSTALK)

KEYES: No, OK, can I raise a question?

MAY: Go ahead.

KEYES: Because actually and this — I want to put in it there before you respond to James because I think it makes a point along the same lines.

We went through a Cold War. We went through a period of time where we were under pressure from the communists, where we faced subversion. That's what it was called. And subversion essentially meant people coming over here to break down our system, to perform terrorist acts, including in the 1950's, the fear of nuclear attacks that would be organized on our soil by people sympathetic with the Soviet communists and other communists. During that whole period of time, why didn't we hear about this enemy combatant thing to deal with a threat that sounds awfully like the threat of organized terrorism . . .

CURTIS: You know why you didn't hear about it...

KEYES: ... except it's not identified with the state.

CURTIS: Because they charge ...

KEYES: Why do we need this now?

CURTIS: ... because they charge those people as in the case of Kieran and the other cases cited, they charged them with crimes, and even though they were not in the civil justice system that has charged criminally in our regular criminal courts with the crime, they were subject to military tribunals. Now, your president has said, look. We're not going to subject United States citizens...

KEYES: But, James...

CURTIS: ... to tribunals.

KEYES: ... this is actually a question — this was actually a question for Cliff. Because it seems to me that we're dealing with circumstances we have in fact dealt with before, that under those circumstances, which extended for a period of several decades, we were able successfully to meet these threats, which at some points were just as acute as the threat from terrorism and supported in some ways by a more organized entity, the Soviet empire, and yet we didn't resort to these measures that put this kind of extraordinary power in the hands of the executive in times otherwise characterized by peace.

MAY: These have always been in the hands of the executive. They've been there all this time. It was different, and it may be difficult when you're dealing with a spy than when you're dealing with a saboteur. James, in a way, if you think about it, you've made my point. In 1942, the eight people who were working for the Nazi government, two of whom were American citizens, they came here to American soil to blow things up.

CURTIS: Yes.

MAY: It's exactly the same as for example, Jose Padilla who was planning to blow something up.

CURTIS: It has nothing to do with Jose Padilla.

MAY: He was a battlefield . . .

CURTIS: There was no . . .

MAY: Let me just finish James, let me finish my point.

CURTIS: ... proof that Jose Padilla . . .

MAY: Let me finish the point.

CURTIS: ... did anything of the sort.

MAY: Let me finish my point. Let me finish my point, James.

CURTIS: Well, don't misstate the facts.

MAY: Let me finish my point.

KEYES: Let him finish his point.

MAY: No I'm not misstating — James let me finish my point, then you can tell me how I've misstated the fact.

KEYES: Go ahead, Cliff.

MAY: The fact of the matter is that the battlefield unfortunately is everywhere now. The battlefield is our soil. We are in a state of war. We don't need to declare war, although by the way, al Qaeda has officially declared war on us. They did so in 1998 in a newspaper article.

CURTIS: But you know what? That is ridiculous. We don't need to declare war? Of course we need to declare war. We are . . .

MAY: No.

CURTIS: ... a nation of letters and laws. If we start making this stuff up, flying by the seat of our pants, you're in trouble, I'm in trouble, and so is everybody else.

KEYES: Now can I interrupt for a second?

(CROSSTALK)

KEYES: Hold on. Let me interrupt one second. I want to interrupt here one second because I think we're losing sight of something that really worries me. Cliff, I listen to your arguments. I understand at some level of expediency what you're saying.

But what are we fighting for here? I want my children to grow up in a country where they are not going to be subject to "enemy of the state"-style abuse the way people were subject to it in the Soviet Union and other nasty places, and the term enemy of the state, by the way, was justified under their perverted laws in exactly the same language that you're using right now, an embattled state with enemies serving — with people serving the enemy, and once you have cooperated with that enemy, you're entitled to no rights under our system.

MAY: Right.

KEYES: How can you tell me that a power unchecked in that fashion keeps this country the same for my children? What's the point of fighting terrorism if I'm going to have to give up that liberty, which is the keystone of everything I believe in about this country, in order to fight them? What's the point?

MAY: Here's the point. If you feel that way, and if James feels that way, you can urge Congress to pass a law that would change the way the situation is. Right now, it is probable that we detained prisoners of war in World War II who may not have been soldiers. They may have been caught in Germany on the battlefield, and they didn't get the right to a lawyer. They didn't get the right to a trial. Look, this is a Supreme Court approved process under the constitution.

CURTIS: No, it's not.

MAY: It doesn't mean — yes, it was.

CURTIS: It's not.

(CROSSTALK)

MAY: Let's change the process so that somebody who is labeled an enemy combatant because they are believed to be working for al Qaeda and they are here to kill Americans as terrorists would not have a right to some sort of minimal review to make sure they're not you or somebody else.

(CROSSTALK)

CURTIS: This is not the process in Kieran. The process in Kieran is if you have someone on the battlefield, that's one thing. If you have someone who is sneaking in the country, doing something, they need to be charged with something.

MAY: They didn't need...

CURTIS: Only then...

KEYES: But there's also...

CURTIS: ... will the rights either in the civil process or under a military tribunal attached. Either way, they get an attorney.

KEYES: But there's also a problem. Cliff, there's a problem here, and I keep hearing this. And the last time we went through this, again, it was the same kind of circular reasoning.

If I'm — if you're on a battlefield and you're wearing the enemy's uniform and so forth, there's no doubt a prima facie case exists, that you are what you say you are, what I say you are, an enemy, OK. If you're coming off an airplane, just like any other civilian, and I pick you up and I say you're an enemy combatant, and you're an American citizen and you say, no, I'm not, right?

MAY: Right.

KEYES: Why should your ability to prove that point, that what the government says about you is not true, why should that ability to prove the point be simply thrown out the window and you are going to be not only presumed guilty but treated as guilty without trial, without hearing, without any kind of arraignment.

With no review of the charge against you or the basis for the label that's been put upon you...

MAY: Alan...

KEYES: ...and you're telling me that that is something that we can safely leave in place when it could be brought against you, me, or anybody else without any foundation. Let me finish one point, and we don't even get right to present contrary evidence to refute it.

MAY: Alan, I think you've made a great point for the Congress to pass law that would say here is how we're going to review cases of enemy combatants to make sure we're detaining people that the government really does have persuasive evidence on. But that law does not yet exist. We can't just make believe it does because we'd like it to. It doesn't exist. So urge a member of Congress to pass such a law about enemy combatants. It's probably a good idea because you're right. There is a somewhat different war than we've fought before ...

KEYES: Now, James...

MAY: ... meanwhile the law applies and precedent applies.

KEYES: James...

MAY: ... and as a lawyer, James, you should understand that best of all.

CURTIS: I've read the case. Apparently you have not. I've seen what this case says, and I understand the circumstances under which it was implemented. The basic difference is this. There were charges brought. John Ashcroft and his ilk are not charging this individual with any crime. As a matter of fact, they don't want to and have refused to charge him with any crime. What does that say about ...

KEYES: But, James ...

(CROSSTALK)

We only have a few minutes left. Let me see if I can, though, get to a point of agreement between you, because what I hear Cliff saying is, "Let's say that there's a problem here that we want some protection against." If I understand you right, James, you're saying, "Well, we should get that protection from a court decision that strikes down this behavior."

Maybe we'll get it, maybe we won't, but in the event that we don't, or in the event that we anticipate the problem taking long enough in the courts that we'd still have to live with, isn't Cliff right that Congress ought to start to look at this and see what kind of protections they might put in law?

CURTIS: Well, the problem that Cliff has and the problem that the Justice Department and the military, as it stands now, has is simply this. They are not following any prescribed norm of behavior. They are making this stuff up by the seat of their pants.

In the cases that stand as precedent, that have been heard before the United States Supreme Court, extending back to the '40s and the '50s, charges have been brought, Alan. It's a very, very simple distinction on the heels of a declaration.

Now we say we don't want to declare war on a country. Fine, let's change that rule. Let's declare war on an organization. Either way, the idea still remains the same. Somebody has to be proven to have done something wrong. It can't be just because you don't like where you went to visit.

MAY: James...

CURTIS: ... as the right to travel...

MAY: James, would you also say that the detainees in Guantanamo deserve to have lawyers or the detainees...

CURTIS: Oh come on, Chris (sic), they were on a battlefield.

MAY: The battlefield is now unfortunately New York City...

CURTIS: The battlefield is not...

(CROSSTALK)

KEYES: We've come — gentlemen, we've come to the end of our time. And I think that, Cliff, the danger here is that this extended battlefield and open-ended timeframe makes all of us, in a way, people who are on that battlefield. And if you define the normal condition of the country to be a battlefield in which we are all of us under some kind of authority and military discipline, that means our constitution is dead and we are living under some weird kind of dictatorship. I think we had better look at this, and look at it carefully before that comes to fruition. Thank you both. Really appreciate it, lively discussion, and we need to think this one through carefully.

Next, inside the mind of a suicide bomb maker. We have the tape allegedly made by Hamas showing how that group makes its weapon of choice which has terrorized so many Israelis. Stay tuned. You're watching America's news channel, MSNBC.

(COMMERCIAL BREAK)

KEYES: Welcome back to MAKING SENSE. I'm Alan Keyes.

As Bob Kur reported just now, dozens of Israeli tanks rolled into the West Bank city of Nablus tonight. And there was more violence earlier in the day when at least five people were killed and four wounded after suspected Palestinian infiltrators took over a house, a private home in a West Bank Jewish settlement. This follows two deadly suicide bombings this week.

Well, in this half-hour, we're going to show you a tape obtained by the Israeli government, apparently made by Hamas, showing how to make a homemade suicide bomb, and how, by choosing targets carefully, it can inflict the most damage.

Now, before we get to it, we're joined by MSNBC's terrorism analyst Steve Emerson. And, Steve, I just want to ask you a couple questions very briefly, because I want the tape to kind of speak for itself. But in your experience, are these kinds of instructional tapes unusual? Have you encountered this kind of thing before?

STEVE EMERSON, MSNBC TERRORISM ANALYST: Unfortunately, they're not unusual. I remember back in 1993, 1994, seeing some of these tapes produced in the United States by the Hamas organization. These were recruitment tapes. Ramzi Yousef brought in tapes in 1992 to help detonate the World Trade Center bombing that he helped engineer in 1993.

So these tapes have, unfortunately, been circulating, produced by militant Islamic groups around the world. And, unfortunately, they provide a vehicle for instructing new cadres of recruits without having to directly instruct them in person.

KEYES: Well, one of the things that I guess has been most chilling to me is that you watch this, it's almost like, I don't know, one of these cooking shows or something where you get a step-by-step on how to prepare the dish. And it's a chilling glimpse into the kind of matter of fact approach that these killers take to their work. And I think it's something that — it's one of the reasons we wanted to share it with folks because it really is just kind of, well, this is business. This is how you do it and let's go.

(CROSSTALK)

EMERSON: Absolutely right, Alan. You can go into Gaza today and you can go into parts of Afghanistan — well, maybe not Afghanistan anymore — but Pakistan, Saudi Arabia, and buy these types of tapes right off the shelf. Their Blockbuster Videos are selling recruitment tapes for Hamas, instructional tapes, how to kill Americans, how to kill Jews, how the kill the infidels. And they provide step by step instructions from the very essence of how to put the explosives, combine them together to how to put the detonating cap. And, unfortunately, they're even circulating on the Internet.

KEYES: Let's look at our first clip, just as Steve said, because here is one that is about the shrapnel that goes into the bombs. I want you all to remember, we've shown on the show some of the terrible and devastating effects that this shrapnel can have. Take a look.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator): As for the shrapnel, it always better to be made out of steel, like iron bolts, that's used in cars. You could ask for it at mechanic shops.

(END VIDEO CLIP)

KEYES: And they also talk about other elements. In the next clip, you're going to hear the instructor talk about the detonator, putting that together.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator): This detonator, we can buy it from the pharmacy. And it's called a test tube. It has a cover, as you see. We will put the test tube into this material. Now, dear brothers, we will bring a syringe. This is the syringe. It is used for a patient who is taking medicine. Now we will get rid of the pusher and we will stick the detonator inside the syringe. We will stick the syringe into the holes of the explosive.

(END VIDEO CLIP)

KEYES: Now in the next clip, the bomb maker is going to show what to do with that test tube.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator): We put this powder inside the test tube and a piece of tape, and we roll it into the top of the test tube like this. This is the electric wire. We will put it into the special holes inside the explosive.

(END VIDEO CLIP)

KEYES: And here is the final step in the bomb making process, as presented as this tape.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator): Our mujahedeen brothers, now the bomb is ready and the wires inside the bomb. This is a plug. We connect it with another plug inside the electric circle needed for this explosive. This is a directed bomb ready, and the wires, as you see, are inside it. So now, dear brothers, as you can see, the bomb is now ready.

(END VIDEO CLIP)

KEYES: As you can see, this was a step-by-step. Now, we've left out a lot of things, obviously, because we're not going to become part of the problem on this show. But we wanted to give you a sense of the level of detail, of the simplicity with which this is approached.

Steve, it seems that this is really put in such a way that you could, in fact, be talking to people of a very young age, of very little sophistication, going through it in such a way as to explain in great detail so that, basically, even a child could understand. Is that right?

EMERSON: Unfortunately, again, you're absolutely right here. It is designed to bring into the capabilities of young people, of teenagers, of people that aren't going to have to be recruited directly into a meeting house so they can transport the tape to a mosque or to a school, and say, all right, guys, take over, broadcast the tape among yourselves, and now all of you can be suicide bombers.

It essentially popularizes the capability of suicide bombings at a level that's unprecedented right now. And, unfortunately, these are death types of tape. I mean, there are tapes also, by the way, circulating where they actually show Israelis or other people being killed. There are tapes that have circulated in the United States for years about this, unfortunately, by radical Islamic groups that have denied responsibilities.

And unfortunately, again, the United States did not take this too seriously prior to 9/11 in terms of what was going on in the U.S. The Israelis to have had deal with this, unfortunately, since the creation of the state.

KEYES: Well, we're going to come back with some more, because that part of it, where you see the actual mechanism and the instructions to put it together, to me that's not even the most chilling part. We're going to get to that next when we see Hamas illustrating how these homemade bombs can be deployed in such a way as to cause the most harm to innocent victims.

And later, of course, we'll get to my “Outrage of the Day,” another story coming, unfortunately, out of the investigations into these priests' abuses in the Catholic church. We'll get to that right after these words here on MSNBC.

(COMMERCIAL BREAK)

KEYES: We're back with Steve Emerson, talking about the terrorist bomb making video. And in this portion, we're going to be taking a look at the instructor as he is telling people how to deploy these bombs in such a way as to inflict the most damage on innocent passengers on the bus. Take a look at this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator): So, if this is the bus, these are the windows. Here sit the soldiers or the settlers. The window area is the area we want the shrapnel to reach because when the shrapnel penetrates the windows, it will hit the soldiers or the settlers.

(END VIDEO CLIP)

KEYES: Now, obviously, this is somebody who has given some thought to what you've got to do in order to make sure that you're going to get that shrapnel into the intended victims. And we have seen on this program some of the X-rays that illustrate the kind of terrible damage that this can do, and that this leaves in the body of those who survive, remember. Because we've talked about the death very often, we concentrate on those terrible tragedy, but here are some nails shown in the body of individuals.

And I am told that this can inflict the kind of damage that, in the severe cases, will cause death later after much suffering in the individuals who have been so afflicted.

Now in the next clip, the instructor tells the bomber the best types of targets for these bombs.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator): The directed bombs should be used against the following targets: soldier buses, cars, settlers and the unarmed. This is what we call a remote explosive. The second use is against populated areas such as pedestrians, the bus stops and markets, and the military camps, or anything similar. The explosives work either by remote or martyrdom. The martyr himself will have to detonate the explosive.

(END VIDEO CLIP)

KEYES: Now, you see that no distinction is maintained in this instruction between military targets, which, down through history in partisan warfare, people have conducted these kinds of operations, as was done in World War II and so forth, against military targets.

But no, there's no distinction made between that kind of activity, which could be part of war, and the activity that's directed against settlers, against civilians, and particularly singled out are the unarmed targets. That is to say, those innocent, unarmed civilians who are particularly singled out as the targets here.

And again, as well, he talks about the distinction between using the bomb in a situation where you're detonating it by remote control, and what the instructor calls martyrdom, that is, the suicide bombings.

Steve Emerson, I got to say that this whole thing is, to me, deeply chilling in the sort of banality of the whole thing. We think of these bombings in terms of their aftermath, the spectacular effects and so forth and so on, but this is really terrorism as kind of the workaday world and, "here is how you get it done," and so forth and so on. And yet, we're talking about terrible carnage, we're talking about real results. What kind of a mind does it take to engage in this activity with that kind of chilling matter-of-factness?

EMERSON: This is the culture of terrorism and the culture of death. These are people — and unfortunately, larger numbers — willing to carry out carnage and to inflict the most atrocities that they can conceive of, and as you pointed out correctly, deliberately targeting the unarmed, giving a total repudiation of all the self-serving statements made by Hamas leaders that they don't target anyone but armed enemies. This is obviously designed to kill innocent people — children, women, old people. Number one.

Number two, what it also shows something else. It shows that there are suicide factories. There are instructors. There are commanders. These are the people that enable the suicide bombings to be carried out. They are not going to be deterred by anything but being actually eliminated themselves, in the same way that al Qaeda cannot be deterred other than being destroyed. So the problem really is understanding that this is an enemy that is implacable. There's no resolution here other than a dual to the death. That's what the Israelis are dealing with right now.

KEYES: Steve, thank you. And thanks very much, in fact, for your help and insight into this. I think it's something very hard for the normal mind to grasp. But I think it's very important for the folks to try to understand that this is the reality that we are, in fact, dealing with.

And one thing that is quite clear. There's nothing spontaneous about this. This is carefully prepared with instructions that are geared at preparing people for the terrible acts they're carrying out.

Next, my “Outrage of the Day.” The Westchester County grand jury in New York has come forward with a report accusing the Archdiocese of New York of covering up abuse by clergy. One story, included in that particularly outrageous. Stay with us.

(COMMERCIAL BREAK)

KEYES: Now time for my “Outrage.” A Westchester County, New York grand jury has issued a report on abuse in the Archdiocese of New York. As part of the report, a priest admitted sexual intimacy with a 14-year-old boy, but insisted the teenager was, quote, “the aggressor.” The church accepted this claim.

That's not just a mistake in judgment. That's a failure to understand the moral truth of that priest/child relationship. That's my sense of it. Thanks. “THE NEWS WITH BRIAN WILLIAMS” is next. I'll see you Monday.