FTN - 5/13/01

BOB SCHIEFFER: Today on Face the Nation, the McVeigh execution and the Bush energy plan.

The execution of Tim McVeigh has been postponed because the FBI found documents relating to the case that McVeigh's lawyers had not seen. Will there be a new trial? Should the death sentence be changed? We'll ask Robert Nigh, Tim McVeigh's attorney, and Beth Wilkinson, one of the lead prosecutors in the case. And we'll talk with Morris Dees who studies hate groups.

Then we'll turn to the Bush administration's energy plan. We'll talk with Senator Charles Schumer of New York and Larry Craig of Idaho.

Gloria Borger will be here, and I'll have a final word on Moms.

But first, the McVeigh execution on Face the Nation.

Good morning again. We begin this morning in Tulsa, Oklahoma, where Timothy McVeigh's attorney Robert Nigh is standing by. Here in the studio, former prosecutor Beth Wilkinson, and in Montgomery, Alabama, Morris Dees.

Mr. Nigh, to you first. Well, you now have, what, 3,125 pages of FBI files which suddenly have turned up, files which should have been turned over to you. What do you do now? Do you ask for a new trial? Do you appeal this case? Do you ask that the death penalty be set aside?

ROBERT NIGH, McVeigh Defense Attorney: The first thing to do is to begin the review of the documents themselves and analyze them in the context of the information that we had prior to the time of trial and the evidence in the trial. And then we consult with our client and determine what he is willing to do.

SCHIEFFER: Well, now, you talked to him, as I understand it, for about five hours. He has already said that he wants to be executed. He asked that the execution be carried out. He has also confessed to at least two sources, the authors of a book and also to another group of newsmen. What can you do now?

NIGH: Well, he indicated that he was willing to be executed on May 16 prior to the time that the FBI made this revelation that it had 3,100 pages of discovery that had not been provided to the defense and which were required to be provided to the defense prior to the time of trial.

He has indicated now that he is at least willing to take a fresh look at things, hear our analysis of the facts contained within the documents and our legal analysis of his options.

SCHIEFFER: But I guess what - to capsule what you are saying is, you flatly haven't figured out what you are going to do yet or you haven't decide what the next step is. Is that my understanding of what you're saying?

NIGH: That's fair to say. We are at the very genesis of this process. This revelation occurred five days prior to the time Mr. McVeigh was to be executed, and we are at the very beginning of our factual and legal analysis of the options.

SCHIEFFER: All right. Well, Beth Wilkinson, you prosecuted this case. You were the one that called for the death penlty here. Do you think there is anything in this mass of evidence that could change this case?

BETH WILKINSON, McVeigh Trial Prosecutor: I don't think there is for a variety of reasons. First of all, there is about 700 documents at issue here. The 3,000 pages are multiple pages attached to reports. They're very similar to the documentation that we have disclosed repeatedly to Mr. Nigh and his defense team. A majority of them, I understand, are John Doe Two sightings. And we turned over in excess of 10,000 documents regarding John Doe Two sightings to Mr. McVeigh's defense team.

If anything, it goes to other perpetrators, it doesn't go to whether Mr. McVeigh is guilty. So, I don't think it will have any impact on his conviction.

SCHIEFFER: Well, you know, the fact is you didn't get this information, either.

WILKINSON: True.

SCHIEFFER: How could this have happened?

WILKINSON: Well, I think it is an unfortunate error. We sent out cables under Director Freeh's signature on multiple occasions asking all the special agents in charge around the country to look for these documents, to certify to us that they had received the documents and turned them over to us. My understanding is it was a problem with some of their databases.

And you know, we're sorry. We're sorry for the defense. Mostly, though, we're sorry for the victims and survivors who have been waiting for the end of this.

GLORIA BORGER, U.S. News & World Report: Mr. Nigh, Ms. Wilkinson just called this an unfortunate error. Would you agree with that?

NIGH: I think it's impossible to tell at this point. It seems like there is a suggestion that this is somehow the responsibility of various special agents in charge across the country. Well, it wasn't their responsibility to comply with the discovery requests and the discovery agreement and orders. It was the responsibility of the prosecution.

BORGER: So are you blaming Ms. Wilkinson? Do you want to respond to that?

NIGH: Ms. Wilkinson would acknowledge that it's the prosecution that has the ultimate responsibility for making sure that discovery is complied with.

WILKINSON: Absolutely. We took our responsibility very seriously. As I said, we asked the FBI for these documents on numerous occasions.

And Mr. Nigh has received over 30,000 witness statements. I think it's unfortunate that the FBI didn't respond, but I think Mr. Nigh knows this was not a purposeful error. There's no benefit to the FBI or the prosecution team for failing to disclose these documents even though they're not exculpatory.

BORGER: So, Mr. Nigh, are you saying that this was intentional?

NIGH: We don't know yet. I think that we have to get to the precise factual background of how this could occur.

In a capital case, where you're attempting to have someone executed, this kind of an error simply cannot be justifiedif error it was. And we need to have a very thorough inquiry concerning precisely how it could have happened.

BORGER: Mr. Nigh, in a book called "The American Terrorist" Mr. McVeigh confessed to the crime. Isn't that the bottom line here?

NIGH: It is not the bottom line. At the time of trial in 1997, there was no evidence of any kind of a book by anyone in reference to the case. And you have to look at the case anew, but you have to look at it in the context of the evidence that was presented at trial and the discovery materials that were available before the trial.

SCHIEFFER: Well, what about that, Ms. Wilkinson? Does that mean, the fact that the man has now confessed after the sentence was passed down, that that is disregarded?

WILKINSON: No, it is not part of the record, Mr. Nigh is right. But there was overwhelming evidence presented of Mr. McVeigh's guilt at the trial, and there's been nothing raised on direct appeal or on the collateral appeals that Mr. McVeigh did choose to pursue that showed any doubt on his guilt.

I believe what most people feel now is that he's confessed outside of the courtroom. It just reinforces what was proved and found by the jury during the trial.

SCHIEFFER: Let me ask you a little about this John Doe number two. A lot of us had forgotten about that, but there was evidence and apparently a lot of these documents now talk about this, about the third man here; that when Terry Nichols and Mr. McVeigh went to buy a piece of real estate in the Ozarks, there was another person there, referred to at the time as John Doe number two. Does this mean that there should - whatever happened to John Doe number two?

WILKINSON: Well, there's evidence presented during the pre-trial phase and the trial phase that John Doe Two was a misidentification at the Ryder Truck shop called Elliot's Body Shop in Kansas, and that someone had believed they saw Mr. McVeigh with another perpetrator at the time when he rented the truck, and in fact did not.

But there were many sightings, and in these high profile cases, as you might imagine, people think once they see the pictures in the media that they might have seen somebody else, and so they rightfully report that to the FBI and other law enforcement agents.

SCHIEFFER: Let's go down to Morris Dees now, because Morris Dees runs a firm - not a firm, but an organization called the Southern Poverty Law Center, which basically tracks hate groups around the country.

Mr. Dees, what do you make of this? Is this now going to make Timothy McVeigh some sort of martyr?

MORRIS DEES, Chief Counsel, Southern Poverty Law Center: I don't think so. I think he waited a little bit too late for that. In fact, most people that are left in this militia group, which is certainly dwindled considerably since 1996, they kind of avoid McVeigh. The killing of children - they saw that dying, bleeding baby in the rms of that fireman. Most of them said, "Hey, this is not what we signed on for."

SCHIEFFER: You have heard and seen over the weekend, the FBI is taking some real hits on this. What do you make of all that?

DEES: Well, I think it's a good statement against capital punishment.

But I think we also should be thankful to the FBI. I know many people have complained against the FBI, but it was the FBI who had Timothy McVeigh behind bars and arrested for this crime shortly after it happened. And it was the good work they did then. It wasn't the state trooper that stopped him that knew he had bombed the building nor the jailer that kept him. He was 20 minutes from walking away and probably would have bombed another building.

Over the last six years since the bombing, the FBI has stopped 30 terrorist plots, one that involved the plans to blow up a propane gas center next to a high school in Wise County, Texas, and also the plot to bomb three other federal buildings. So, you know, there's good and bad here.

SCHIEFFER: You brought up a very interesting point, and that is the militia movement somehow seems to be on the wane now, does it not?

DEES: Oh, it certainly does, and I think these people, you know, these anti-government zealots that were out there waiting for the revolution to happen, it didn't happen. I think McVeigh hurt it itself. The most important thing he did was explode the conspiracy theory that the FBI bombed the building in order to have an issue to go against the militia.

But as we look at the decline of the militia movement down from 800 to 200 or less militia groups today, and those are small, we are seeing a substantial rise in more Nazified-type hate groups in the country. Nearly 600 of them and that's up 12 percent from last year.

SCHIEFFER: All right, Morris, thank you very much, and I want to go back quickly just to Mr. Nigh.

Now you have talked to Timothy McVeigh. What sense do you have of what he wants to do now?

NIGH: I think that he wants to see how this could have occurred, and I think that he wants to evaluate the facts that are contained within the documents and his legal options. He, I believe, thinks that it's very important that we determine how this could have happened.

SCHIEFFER: And Beth Wilkinson, one final thought from you. Do you think it's possible that the death penalty might eventually be set aside for him after this because of what's happened here?

WILKINSON: Absolutely not, I don't think so. He did not present any defense during his sentencing phase about John Doe Two or other sightings. He chose to use that time to talk about Waco. And so I don't see how this information could have any impact on his sentencing.

SCHIEFFER: Well, I want to thank you all very much.

When we come back, we're going to talk to two key members of the Senate about this and about the president's energy pln, in just a minute.

(COMMERCIAL BREAK)

SCHIEFFER: And with us now from New York City, Senator Charles Schumer. Here in the studio, Senator Larry Craig.

Gentlemen, obviously we asked you both of you to come here this morning to talk a little bit about the president's energy plan. It's going to be announced next week.

But Senator Schumer, you of course are on the Judiciary Subcommittee that has oversight over the FBI. Has the committee decided to take any action on this?

SEN. CHARLES SCHUMER, D-NY: Yes, we have, Bob. I've spoken to Senator Jeff Sessions, Republican of Alabama, who is the chair of the committee. I'm the ranking Democrat. And we've decided to hold hearings on what has happened here, not on the specific facts involved in the case - that will be up to the judges - but rather on how this mistake occurred. It seems pretty obvious in a capital case of such great importance that every step should have been taken to avoid a mistake like this, and here it is.

SCHIEFFER: Well, Senator, do you think in some way that this was done intentionally by the FBI?

SCHUMER: I do not. I do not, Bob. But still it's a mistake in a very serious case where every bit of care ought to be taken.

And let me tell you one other thing, Bob. I'm also today going to ask the president to set up a blue ribbon commission of leading law enforcement experts in the land to just examine the FBI from top to bottom.

As you know, I'm a pro-law enforcement person. I've been a strong supporter of the FBI through Waco and so many other issues. But we've had mistake after mistake after mistake. We've had Ruby Ridge, and then we've had Wen Ho Lee and the misidentification of the bomber in Atlanta and Hanssen and now McVeigh.

And, you know, a good agency that is known as the premier law enforcement agency in the land, sometimes they get too big or too set in their ways. And I think a top-to-bottom review of what is going on in the FBI is called for, not simply by Congress, but by the leading experts in law enforcement.

SCHIEFFER: Well, let me bring Senator Craig into this, because, Senator Craig, I know that were you critical of the FBI during the Ruby Ridge case. You are a Republican. What do you make of all this?

SEN. LARRY CRAIG, R-ID: Well, it is a mistake of the magnitude that Chuck has just explained so well, and it's something that must be examined. Clearly the integrity of the system is at stake here. This was an awfully high profile case for any mistakes to be made.

I've been a critic of the FBI over time. I think it's an important responsibility of those of us who legislate, because their credibility goes right to the base of a civil society. When law enforcement makes a mistake, if it appears to be something habitual or something cultural within the system, then we'd better fix it.

I have a lot of respect for Louis Freeh, and I thought certain courscorrections had been made since we had done that very thorough examination of Ruby Ridge and found out there were substantial institutional errors made.

SCHIEFFER: Well, you know, Senator Grassley said today that there is what he called a "cowboy culture" at the FBI right now. Do you agree with that characterization?

CRAIG: Well, I think that can happen in law enforcement if we're not careful. This might have been one of arrogance. You know, this was such a high-profile case, everybody knew that McVeigh was guilty. Why do we have to dot all the i's and cross all the t's? Well, the reason you do it is because you're responsible and it goes right to the credibility of the case
.
BORGER: So, Senator Craig, are you saying that this was intentional?

CRAIG: No, I'm not saying this was intentional. When you have a culture inside a system, they act certain ways. Is the action intentional? No. It's characteristic of how a large bureaucracy functions. It may not be as thorough or detailed as it ought to be.

And I think Chuck's right. It's time we look at this with some detail. We are going to have a new FBI director, an opportunity for reform.

And remember, we all believe that the FBI is the best we've got, and it ought to be.

BORGER: Senator Schumer, do you believe that the FBI needs more oversight, that it has essentially run amok here?

SCHUMER: Well, you know, "running amok" is too strong, and I think "cowboy culture" may be too strong, but something is wrong. And when you have, on major case after major case after major case, mistake after mistake after mistake, it's time for a thorough and complete reexamination.

I have been - unlike Larry, I have been generally one of the leading defenders of the FBI in Congress and on Capitol Hill. And I believe very much in them, and I know how hard the people there work. But it's just too much already.

And so what has happened? Has the bureaucracy gotten too big? Have they lost their edge? This has always been known as the premier law enforcement agency in the world. And yet, every major case that comes up, we see a mistake.

The fact that we're bringing in a new director, it's a perfect time for a top-to-bottom review. So Senator Sessions and I in our subcommittee will review the specifics in this case and what went wrong. But I think a blue ribbon commission of law enforcement experts should be appointed by the president to reexamine the FBI from top to bottom.

SCHIEFFER: And Senator Craig I see nodding his head in agreement on that.

All right. Let's shift to what we asked you here to talk about, and that is the president's energy plan, which is apparently coming out next week. And it will put an emphasis on production but not really on conservation.

Senator Craig, is that a mistake?

CRAIG: Well, I think we're going to see a great deal said about conservation by the president, ecause, clearly, there is a shift.

Yes, we have to produce new sources of energy. But immediately, what do we do immediately? What can the average consumer do tomorrow? They can examine their energy-use habits. They can back off a little here or there. And we, the Congress, and public policy, can enhance conservation through the right incentives.

I think you're going to see a shift away from large producers like oil companies to individuals and to new technologies and to the kind of conservation that really we ought to be talking about.

Bob, we can't conserve our way out of this one. We know that. California is a perfect example of the state with the highest conservation of any, and yet they're in the greatest crisis. Conservation ought to lead for the short term, tomorrow and next year. And, while we're conserving and creating conserving mechanisms, we ought to get at the business of producing new energy.

BORGER: Senator Schumer, this administration is talking about some long-term solutions, building pipeline, building refineries, nuclear energy and all the rest. But there are going to be some short-term problems coming up this summer. People are worried about $3-a-gallon gasoline, they're worried about California energy prices.

What are some short-term solutions that you would be proposing to help with those issues?

SCHUMER: Well, I think there are three solutions that would make sense in the short term.

First, I have been an advocate of using our strategic petroleum reserve in the short term - it's not a long-term answer - to help deal with high prices. And when President Bush immediately took the SPRO off the table, he gave the oil producers of the world a green light to go ahead and raise prices as much as they can.

Remember, 70 percent of the cost of oil is still the cost of crude. And we should be - we don't have to use the SPRO right yet, but to have it on the table as a weapon as a warning to OPEC makes sense.

We also should - and this can be done relatively quickly.

There are many different requirements in different parts of the country about how gasoline should be formulated. Some have said let's abolish these. I don't want to do that. I think our clean air is as important as having a good, long-term relatively reasonably priced supply of energy.

But to bring some method to the madness, to sort of streamline the process and have more uniformity to the process would make a great deal of sense and make it a lot easier for refiners. Those will work in the short run.

In the long run, Gloria, it's pretty simple. We have to both decrease demand and increase supply, and a balanced energy package will do both.

In the past, Washington has been deadlocked. Democrats say, conserve only. Republicans say, increase supply only, and we've been deadlocked. We're each going to have to meet each other part of the way.

SCHIEFFER: Well, we're about out of tim. Let me ask you this, Senator Craig. Quickly, why not price controls in the short term?

CRAIG: Well, let me talk about SPRO first. You can't add new oil crude to the system if you don't have refinery capacity. We've lost 10 refineries in the last decade.

Our refinery capacity is at peak. Chuck Schumer and I serve on the committee together. When we introduced SPRO two years ago, it didn't bring down home heating oil prices.

Price caps send a negative signal to the investment market. We've got to put billions of new dollars into technology and into new production. And you don't say to the investment community, "You're not going to have a margin or we're going to control you in how we shape you."

We need to limit it, but we need to conserve and we need to produce and we need to send all the right signals, and I think the president will do that.

SCHIEFFER: All right, we're going to stop right there.

I'll be back with a final word in just a minute.

Thanks to both of you.

COMMERCIAL BREAK)

SCHIEFFER: Finally today, Milton Berle used to tell the story of how his mother saw all his performances, led the laughter, stared down those who didn't laugh and, once, when a drunk in the audience made a pass at her, did nothing until he finished his act. She wasn't about to draw attention from her son. But once he left the stage, she pummeled the man with her fists and bit him. Only a mother.

And don't all of us remember a similar story about our own mothers, who always find a way to give us the credit and to be proud of us no matter what we do?

Most of us remember the love, but we sometimes forget the work that mothers do.

Being a mom requires, first of all, time. Not the so-called quality time, but unending time that comes from putting the kids first.

I know a mom with two pre-teen sons whose recent Saturday schedule included five separate games: three soccer matches, two baseball games.

I know a mother of two teenagers who says "I love baseball, but there are so many games I sometimes pray for rain."

I know a new mother of twins who says, "This would be easy if I could just get one night of uninterrupted sleep." But she knows that is years away.

And none much them would trade their lives for any other. What mothers know of love, others can only surmise.

So on Mother's Day we take a break from the news to say thanks and wish them happiness, a good night's rest and the joy that comes from the occasional summer rain.

That's it for us. We'll see you next week right here on Face the Nation.

© MMI Viacom Internet Services Inc. All Rights Reserved