Authorities Following Trail of Reid's E-Mail Across Europe
THIS IS A RUSH TRANSCRIPT.  THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. PAULA ZAHN, CNN ANCHOR: Back to the latest on the alleged shoe bomber, Richard Reid, and an investigation reaching across the Atlantic and now into cyberspace. He is accused of trying to blow up an American Airlines flight from Paris to Miami last month with explosives hidden in one of his shoes. Authorities following the trail of Reid's e-mail across Europe are hoping that it will lead them to terrorist accomplices. But would those digital clues be admissible in court? Joining us now to talk more about that from Washington, former Justice Department official, Victoria Toensing...</s>VICTORIA TOENSING, FMR. JUSTICE DEPT. OFFICIAL: Hi, Paula.</s>ZAHN: ... and from Miami -- good morning. And from Miami, criminal defense attorney Jayne Weintraub -- good to see you as well, Jayne -- good morning. All right, Victoria, if you would, put into context the content of these e-mails that investigators have exposed us to so far, Richard Reid not only e-mailing his mother, but e-mailing someone repeatedly in Pakistan. What is the significance of these trails?</s>TOENSING: Well, Paula, let me put it into context what we're really talking about, what the issue is here and why we are even talking about it this morning. And that is that we don't have enough facts this morning that a federal judge in Boston will require for him to know or her to know in order to make the decision whether those e- mails are admissible in a federal court. Now, you may say if this trial is a search for the truth, why are we even talking about this? This is such reliable, credible evidence of Richard Reid's intent. Well, the reason is the exclusionary rule. An exclusionary rule is if the police in the United States don't comply with the U.S. Constitution, then they are punished, the rationale being that if they are punished enough that they will learn how to comply with the rules. If the constable blunders, the criminal goes free. So what the issue is going to be for the Boston court is if the French police, who don't even know the U.S. Constitution, do not comply with the U.S. Constitution in collecting that evidence, can it still be admitted before an American jury? That's what we're talking about.</s>ZAHN: All right -- excellent point to make. Jayne, though, if you would, analyze for those of us that don't practice law, like the two of you, what you think this e-mail communicates. We're going to put up on the screen a small part of what Richard Reid apparently said to someone in Pakistan, which I guess has provided the greatest detail of what these e-mails have said so far. Reid says, "Should I go again." The Pakistan reply: "You have to go. You have to do it. Go take next plane. You have to go your way. Do it." Now, we understand this exclusionary rule, but, boy, if you were a prosecutor, wouldn't you want to use this in some way?</s>JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Well, if I were a prosecutor, of course I would. And the old guilt by association, of course, is always a theory that the government loves to use. What the government is going to try and present to any court, or to a jury eventually, would be that he was associated with the al Qaeda organization, and that this is proof of his intent to blow up the plane. But I don't think they need the e-mail for that, Paula, or you don't need to analyze the 4th Amendment here. The issues clearly are, you have 100 eyewitnesses who see him with a pound of explosives about to be ignited on his shoe, so whether or not it goes to the weight of the evidence, who knows? E-mails are usually taken out of context, No. 1. No. 2, they would have to show the authenticity and reliability of the e-mail, but we don't even know who this person, the recipient is of this e-mail. Obviously, the government's theory is accurate, that he was about to kill himself and blow up the plane. He was a very deep-rooted, troubled man who had mental problems. That's the first hurdle that we'll have to overcome. But most importantly, I think we should focus on the fact that these e-mails were not seized in the United States. These e-mails were seized out of the United States, where the United States Constitution probably will not apply, and as a former prosecutor, that's the argument to make for the government. As a defense lawyer, I can tell you that we just argued this, unsuccessfully unfortunately, in Louisiana, where a federal district court ruled that hotmail e-mail was going to be seized without complying with the United States law.</s>TOENSING: See, the reason, Paula, that these e-mails are very important, and why would a prosecutor want to leave out any important evidence that shows what the defendant is thinking, since the defendant is not required to take the stand. And it refutes his claim that he was acting alone, if he is e-mailing to at least 10 people, one of them being in Pakistan, where the al Qaeda is a very strong cell and allowed to flourish. It also refutes the fact that he didn't have any plans to blow up the airplane. That he wasn't just a poor troubled guy who got on this airplane with a bomb wanting to, you know, do something bad, but really didn't want to blow up the airplane.</s>WEINTRAUB: But I disagree.</s>ZAHN: But hang on one second. But, Victoria, you'd have to acknowledge as a prosecutor that it certainly lessens the credibility of the impact of this e-mail, if you don't even know who he was e- mailing to in Pakistan, right?</s>TOENSING: Oh, but you will. I mean, we just don't know that right now, but you're going to know that by the time you get that. You're just getting bits and pieces from the French press. By the time the prosecutor has this evidence and wants to have it admitted to trial, believe me, you'll know.</s>ZAHN: All right. Jayne,</s>WEINTRAUB: Well, I disagree, and I think that we may not ever know, because I don't think their identities are accurate. But I think the important focus is what laws are to be applied? And if we're to be the United States and recognized as the best country in the world, I think that he will have the process that is due...</s>TOENSING: So the criminal should not go...</s>WEINTRAUB: ... amendment.</s>TOENSING: The criminal should not go free, because the evidence was collected outside of the United States, and that's really an argument for a military tribunal, isn't it?</s>ZAHN: We will...</s>WEINTRAUB: I hope not.</s>ZAHN: We can't go down that road today -- don't have the time to talk about military tribunals. But, Victoria Toensing and Jayne Weintraub, we really appreciate your insights and look forward to bringing you back as this case progresses.</s>WEINTRAUB: Thank you, Paula.</s>ZAHN: Thank you for your time this morning.</s>TOENSING: Bye. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com.