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LEGAL VIEW WITH ASHLEIGH BANFIELD

Boston Bombing Trial; Senate Probes Online Terror; NSA Program Ruled Illegal. Aired 12-12:30p ET

Aired May 7, 2015 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[12:00:00] JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: They want to get a message out, that's what they'll do.

JOHN BERMAN, CNN ANCHOR: All right, Jim Sciutto, thank you for joining us and thank you all for joining us AT THIS HOUR.

KATE BOLDUAN, CNN ANCHOR: Absolutely. "LEGAL VIEW" with Ashleigh Banfield starts right now.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

We begin with the Boston bombing trial, the life or death fate for Dzhokhar Tsarnaev. The defense may rest its case as early as today. The vote from the jury, though, has to be unanimous. So even if one juror decides against the death penalty, we're going to show you where he'd spend the rest of his life. It is the super max in Florence, Colorado, known as Alcatraz of the Rockies.

Make no mistake, the setting may be picturesque, but it is no room with a view. Tsarnaev would be locked up 23 hours a day in a sound proof cell with four-inch wide windows. No roommates to be had. But sharing the prison with him, this cast of characters. A wide cast of notorious murders and terrorists, including Unabomber Ted Kaczynski, Olympic Park bomber Eric Rudolph, shoe bomber Richard Reid, Oklahoma City bombing conspirator Terry Nichols, 9/11 conspirator Zacarias Moussaoui, and former FBI agent and Russian spy Robert Hanssen.

Our Deb Feyerick is live outside of the courthouse in Boston.

Deb, correct me if I'm wrong, is Dzhokhar Tsarnaev's attorney trying to convince the jury that if they decided against death and instead went for a life sentence, that that would be a horrible life?

DEBORAH FEYERICK, CNN CORRESPONDENT: Well, that's exactly what they're trying to do. The wing that you described, Ashleigh, is the H wing, and that's where the worst of the worst are kept. And although it's not a done deal whether in fact he would be sent there, chances are very good that he would. And whether he receives these sort of special restrictive measures that are extremely harsh or whether he's put in general population, either way, it is very difficult. And the prosecution on cross examination now trying to point out, look, he may not be getting a lot of privileges, but the few privileges he will be getting, like being able to write letters to his family, are certainly things that the four victims can no longer do. That he took that away from those families.

So the defense is still trying to save his life. There's been talk that they're trying to get Sister Helen Prejean, the death penalty abolitionist, sort of back on the stand. Her point of view is, look, unless you yourself can put your finger on the button and pull that trigger or pull that switch, then you should not be voting for the death penalty. The defense wants her to testify. Prosecutors do not.

And, Ashleigh, I have to describe Dzhokhar Tsarnaev, who is sitting in that court. His hair is longer. It is significantly more disheveled. His beard is longer. His family had testified earlier in the week and he seemed to have a connection with them. He looked tearfully at them because there's been a string of characters vouching for what an incredible person he was before this crime took place. And whether they were able to reach him, because he's shown so little emotion, or whether, in fact, he was able to connect in a way that he now realizes that, you know, it's done, it's out, it's over, whatever he gets, whether it be the death penalty or whether he gets life in prison. So it's very interesting to watch his demeanor because he just doesn't care.

BANFIELD: Well, he may not care but he's about to care because his life is about to change radically for the worst. Deb Feyerick, thank you for that.

I want to take the legal view now and bring in HLN legal analyst and defense attorney Joey Jackson and CNN legal analyst and defense attorney Danny Cevallos.

All right, guys, I need you to paint for me the actual picture of what living in a super max is like because whenever you see the pictures, it looks like a big, brightly lit, clean, glossy, strict prison, but it's a lot more than that.

JOEY JACKSON, HLN LEGAL ANALYST: Well, let's give it some perspective. And Danny and I were speaking about this in visiting our clients in prison.

DANNY CEVALLOS, CNN LEGAL ANALYST: Oh.

JACKSON: And in visiting our clients in prison, whether it's a super max or not, I mean, you know, there's a - it's not a place certainly that you want to be. Now, you compound that with going to a jail like this, where you have people who are the worst of the worst, and you described who those people were, terrorists, traitors, and you're - it's really designed, really, to make you mentally nuts. You're in a room all by yourself 23 hours a day. One day out. You have a window, four inches, you know, where you look outside. Concrete desk. Concrete chair. And so certainly it's a place that -

BANFIELD: And neighbors like that.

JACKSON: And, exactly. And neighbors like that.

BANFIELD: So let me read you guys -

JACKSON: A place you wouldn't want to be.

BANFIELD: Let me read you some details of - this comes from a lawsuit that's been filed by some of the inmates, who I'm sure very few people have sympathy for, but I want you to read what some of them have been sort of - I want to say have - that the solid - the solid - the solitude has led them to do.

[12:05:03] Jack Powers is one of the inmates. He cut off both of his own earlobes. He chewed off one of his finger. He sliced through his own Achilles tendon and he pushed staples into his face and his forehead. This coming from "The New York Times" assessment of the lawsuit.

David Shelby claimed that he heard the voice of God and amputated his own pinky, cut it into pieces and then swallowed it with ramen noodle soup. And then another inmate named Jason Leggett swallowed some parts of his own prosthetic leg and lawyers say that prison officials refused to provide a replacement, which meant that he had to just sort of drag himself around the cell.

And, listen, Danny, there have been other inmates who have said, I live in the equivalent of a bathroom. It is that small. The toilet is in there. It only flushes once every five minutes if you accidentally hit it twice. I live in a toilet. It is a horrible existence. Is that a great argument for Dzhokhar Tsarnaev's lawyer to tell that jury?

CEVALLOS: Well, it is, in the sense that it would make the jury satisfied that he is being punished if he's going to stay in a place like that, even though that's really not the purpose of presenting mitigating evidence, but it is helpful to a jury if they're thinking, well, will it just be a walk in the park if he's at super max?

BANFIELD: Club fed.

CEVALLOS: And it - and it will not at all. And, you know, when we talk about some of those horrific cases, you have to take a look at the - why we punish to begin with. There's several reasons why we do. One, of course, is retribution. But one of the others is separation from and protection from the rest of the population. In other words, keeping them away from where they might do harm either to prison officials or to the public at large. And when we're dealing with these kinds of criminals, these are, at super max, not the run of the mill robbers. They are not drug dealers, so much as they are national criminals with - that present real threats to national and maybe international safety.

BANFIELD: Extraordinarily deadly people. Listen, you and I, both of you and I, we're going to have another conversation about the Eighth Amendment challenges to this kind of incarceration as awful -

JACKSON: Cruel and unusual punishment.

BANFIELD: The cruel and unusual punishment that it might represent. And you may feel like these guys deserve it, but do we want to be the Saddam Husseins of the 21st century? Do we want to be the people that go back to the Tower of London? Yes, it's cleaner and brighter and shiny, but it is effectively a dungeon and it drives people to do the things that are pretty -

JACKSON: They're not getting a lot of sympathy, though, Ashleigh.

BANFIELD: They sure aren't. They sure aren't. And neither will Dzhokhar.

Guys, thank you for that.

Stand by because coming up next, this may be the biggest terror network on the planet. It's called the Internet. And jihadists all over social media are plotting, even advertising, their every move. So coming up next, what are Americans doing to counterbalance this, to counterattack, to get them at their own game? That's next.

(COMMERCIAL BREAK)

[12:11:07] BANFIELD: Three years before he tried to shoot up a Texas event designed to offend Muslims, Elton Simpson described his religion as, quote, "a weapon to be used against Satan." A video produced to raise money for the mosque that Simpson joined in Phoenix takes on grim new significance in light of last Sunday's failed attack in which only Simpson and his roommate/accomplice, Nadir Soofi, were killed. Have a listen to this.

(BEGIN VIDEO CLIP)

ELTON SIMPSON: If I see you, a form of weaponry to go out in to the real world and use that weaponry to shield you against the - the tricks of (INAUDIBLE).

(END VIDEO CLIP)

BANFIELD: The FBI is interviewing fellow mosque members, family members, friends as well and associates of both men, and some of those people are openly sharing what now look very much like warning signs. Nadir Soofi's own mother, for instance, tells "The Wall Street Journal" that she learned back in January that Soofi had bought an AK- 47 and she says she was horrified by it. Long before that, Soofi sent his mother DVDs of the American-born al Qaeda preacher named Anwar al- Awlaki, whom an American drone took out in Yemen back in 2011. The fact that al-Awlaki was killed, says Sharon Soofi, quote, "instigated a deeper passion for his teachings," end quote.

Online teachings from al-Awlaki and dozens like him were the focus today of a hearing held by the Senate Homeland Security Committee. And among the expert witnesses were CNN's own Peter Bergen and former jihadi Mubin Shaikh, who took the question of the day from New Jersey Senator Cory Booker.

(BEGIN VIDEO CLIP)

SEN. CORY BOOKER (D), HOMELAND SECURITY COMMITTEE: We have a government that's spending millions and millions of dollars on old school forms of media and, as you said, Mr. (INAUDIBLE), very crude social media efforts. What could - what do you imagine could be done if we were going to do an effective social media online counter messaging effort?

MUBIN SHAIKH, FORMER JIHADI: Thank you very much. You know, in some kind of defense to the Center for Strategic Counterterrorism Communications, they have a very small group of people. They're trying to contest the space. And they're trying to do something. And I get that. And, yes, crude is a very polite statement.

Look, at the end of the day, if you want to fight back against recruitment of 15-year-old kids, you need to work with 15-year-old kids. When I see my own kids showing examples of what affects them and what motivates them and what resonates with them, it tells me that this is exactly what you need to do.

(END VIDEO CLIP)

BANFIELD: Well, we're lucky now to be joined by the man that just appeared before that Senate committee, Mubin Shaikh. He joins me live from Capitol Hill.

Mubin, I was fascinated to hear that answer that you just gave. If you want to counter effect the online recruiting methods towards 15-year- old kids, you've got to target 15-year-old kids. Can you talk a little more deeply into the point of exactly what methods do you think would work, going into schools and start teaching about jihadi wars?

MUBIN SHAIKH, FORMER JIHADI: Well, I think, I mean, these kids are a product of social networking. I mean I can say I actually grew up when there was no Internet. There was still what were called bulletin board systems, BBS boards. And one of the first things I downloaded was the anarchist cookbook. So, you know, these kids today, they're born and bred in this environment. They're incubated in this environment. They live and breathe it.

I have kids of my own. You know, as young as four or five years old, they were already online or interacting with some kind of computer system, gaming system. So I think we need to understand that this is the environment in which they're born and bred and work with individuals who similarly know what works.

[12:15:13] BANFIELD: What else did you tell those senators? I mean that answer was very, very clear and very, very practical. And you could actually see something coming of that. But were there other things that you told those senators that's just a little more nuanced, that takes a different way of thinking, that could guide Congress or the American people to understand there is a different way of beating these jihadis at their own online game?

SHAIKH: Yes, there - I mean there were other panelists as well who were, of course, I mean the colleagues of mine who I know and they're very, very intelligent, who said, look, you know, the government will not be able to do it if they cannot respond at the speed of social media. Even the senators who were there, present, understood that this is not something for a bulky institution to do. It's going - it's really going to come down to people at the NGO level, Muslim communities, whether it's a public school approach, this is the way it's going to work. BANFIELD: And what about the conversation that you and I had just

yesterday on this program? And that was the counterpropaganda campaign. Because, right now, what we see a lot of is, if you see something, say something. And it's almost becoming like white noise. Isn't there so much more that the American government and authorities throughout every state can be doing to counterbalance these slick, sexy videos that have sad troubled people following them, you know, with their lives?

SHAIKH: Yes, you know, I - one of the other comments was that if you want to develop a messaging that appeals to teenagers, you need to work with teenagers to develop that messaging. It can be done as a high school project. It can be done at the college level. I mean at the university level. I mean we have talent in the west that would blow away these videos. I mean, yes, they're slick, you know, they're sophisticated. That's because of all the, you know, compared to the old media styles that people are using, of course, I mean, it's going to look like it's amazing. But if you look at what most kids are using anyway and what most kids can themselves produce, we can actually do something. But, I mean, it's - I'm struggling to understand why - why we haven't done that so far.

BANFIELD: Mubin, it's good to talk to you. Thanks so much. Especially in the - in the role that you're playing today, live in Washington, D.C., before our senators. Looking forward to talking to you again. Thank you.

SHAIKH: Cheers. Thank you very much.

BANFIELD: Coming up next, a federal court has just ruled that the National Security Agency in the United States has just gone too far. Too far when it tracks your phone records in the name of national security. So is this a win for the ACLU and what about you, where do your rights fit in? And, P.S., is this really the end of this case?

(COMMERCIAL BREAK)

[12:21:27] BANFIELD: National Security Agency program that may have collected records of your cell phone calls. I know everybody was really fussy about it but, guess what, it turns out it really was not authorized by Congress, and it is not allowed under the Patriot Act. And here's the big one, it is not legal. That's not me saying it, it's actually what a federal appeals court just decides today, agreeing with the ACLU that filed this claim and had been trying to - basically failing and trying at the same time to shut down the data collection by the NSA in the lower courts. And there's just one more thing here too. It's just a few weeks now before Congress decides to even keep that part of the Patriot Act alive.

If it seems confusing, I know the perfect person who makes it real simple. His name is Paul Callan and he's a legal analyst.

So if I get it straight, the Patriot Act to the NSA said, you're good to go, we have the law and the language, go ahead, collect the metadata on people's cell phone calls that you need in your effort to fight bad guys who want to kill us. And then all of a sudden, an appeals court has said, not so fast, not so fast at all.

PAUL CALLAN, CNN LEGAL ANALYST: Yes. Not so fast at all is right. And it's a fascinating decision because it's about 76 pages in length analyzing privacy rights of American citizens, the need for national security. A nod to Edward Snowden in the decision in which the court says this only came to the attention of the American people as a result of Snowden's leaks. But they then go on to analyze and they say the following. When the Patriot Act was created by Congress, enabling a lot more surveillance in the United States to stop terrorists -

BANFIELD: Good intentioned.

CALLAN: Good intentioned. They never said specifically that you can go to the telephone companies and gather this, what's called metadata. Now, what's metadata? They're not listening in on the contents of your telephone calls.

BANFIELD: They're finding out who you called, what time, that kind of thing.

CALLAN: Exactly.

BANFIELD: Yes.

CALLAN: And by looking at that, they can tell a lot of things. For instance, if you were calling a suicide hot line, they would know that.

BANFIELD: OK.

CALLAN: If you were calling a terrorist in another country or in this country, they would know that.

BANFIELD: So the -

CALLAN: So it reveals information about people.

BANFIELD: Right, a lot of stuff that we consider - we consider to be very private. So just technically speaking, this second circuit appeals court has said you can't do it, you won't do it, so unless you go back to the drawing board, Congress, and rewrite the Patriot Act to make it more expansive, then you can go ahead and do it and we'd be good with it?

CALLAN: Well, what the second circuit has said is, you have to stop doing this. You have no right to do this. That is, gather this metadata. And we're sending it back to the district court, the lower court. Remember, this is an appeals court.

BANFIELD: This is an applet, yes.

CALLAN: Federal appeals court.

BANFIELD: Yes.

CALLAN: But a very prestigious one. And they're saying to the local judge who decided it, a Manhattan federal judge, we're sending the case back to you to implement our decision. Meaning, this is illegal. They have to stop doing this. And you, judge, in the lower court, implement it. Now, I don't know what's going to happen in the lower court, but you could have an order coming down banning the U.S. government from doing this.

BANFIELD: Today it's business as usual, but as soon as that - that district court judge gets this back in his or her chambers, then that's going to be the time when we might find out, stop, and you can't collect this anymore.

CALLAN: Absolutely.

BANFIELD: So right now it's business as usual today.

CALLAN: That's correct.

BANFIELD: All right, Paul, we'll have you back when we figure out what's going on to, you know, button this whole thing up.

CALLAN: Thank you.

BANFIELD: Thank you.

[12:24:57] Coming up next, you probably know him, he's pretty famous for a lot of things, Tom Brady. And now Tom Brady's under attack and he's fighting back. His agent is sending out the statement arguing that that 243-page deflate gate report, it ain't right. It's tainted. It's biased. It's missing key facts. It's filled with tragic flaws. So, is it? You'll find out next.

(COMMERCIAL BREAK)

BANFIELD: A pro football quarterback is used to taking big hits, but Super Bowl winner Tom Brady is getting hit real hard from the entire league and its front office. He is calling the NFL's report on the football pressure scandal disappointing and also flawed. That's the report that determined that Brady probably knew full well that he was playing with an underinflated football during a division championship game back in February. The report even detailed some text messages between equipment managers joking about how they deflated some of the balls to help their own quarterback's performance.

Legal analyst Mel Robbins is here from the - I suppose we should call it deep in the heart of Patriots country because you're in Boston, girl. I can't believe you wrote what you wrote. But I want you to listen to this response from Tom Brady's agent, Don Yee. He sent this out and it says, "The Wells report omitted nearly all of Tom's testimony, most of which was critical because it would have provided this report with the context that it lacks."

[12:30:10] And yet you write so eloquently and angrily that the Wells report got everything wrong.