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Legal View with Ashleigh Banfield

Possible U.S. Military Action in Syria; U.N. Weapons Inspectors in Syria; How Will Assad Respond; Constitution and Military Action; MLK Dream Anniversary; Rapist Gets 30 Days in Prison After Victim Commits Suicide; Hasan Defense Expected to Rest

Aired August 28, 2013 - 11:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Building a case and a coalition against Syria, the United States and its western allies on the verge of striking back against the use of chemical weapons in Syria's civil war. But is this even our business?

Civil rights in the spotlight this hour in this country celebrating the 50th anniversary of the march on Washington and Martin Luther King's I-have-a-dream speech.

Lots of big famous names on today's speaking line-up from President Obama to Bill Clinton to Oprah Winfrey.

And also ahead, a teenager takes her own life after she's raped by a 49-year-old man. A judge puts him away for only 30 days -- thirty days. And you will never believe how he justifies that sentence.

Hi, everybody. Welcome to the LEGAL VIEW. I'm Ashleigh Banfield.

Our very top story, momentum for the U.S. military strike against Syria is building and with deliberate speed today.

A senior U.S. official says the Pentagon is ready but that there are, in fact, other pieces that need to be put in place before President Obama issues any kind of an attack order. Those pieces include getting Congress on board and also building that very important international coalition.

Top administration officials say they are convinced that the Syrian military did carry out a chemical attack against Syrian civilians last week. The Syrian rebels say more than 1,300 people, including children, were killed in that gas attack.

For more on this rapidly developing story, I want to go to CNN's Chris Lawrence at the Pentagon.

Chris, what are your sources saying right now about this speed and exactly how long it might take to click those boxes that they are talking about being necessary?

CHRIS LAWRENCE, CNN PENTAGON CORRESPONDENT: I think you touched on a couple things, Ashleigh, that the administration is still working on, still building the legal justification for going in, putting a resolution out in front of the U.N. security council, even if it's going to get rejected, just the idea of doing so.

And also I just spoke with a U.S. official who says they're still working out the scope of any potential action, whether some of it would be outside the military and in terms of the military options, how extensive a strike needs to be and, probably more so, exactly what needs to happen to accomplish their ultimate goal of deterring any future chemical weapons used, not just in the short term, but going forward, so one week, two weeks, three weeks, they're not back in the same spot again.

BANFIELD: And just what about the actual response? What do they know about Bashar al-Assad's potential for striking back?

We've got all of those destroyers we just showed on that graphic. There are a lot of men, sailors, on those destroyers who could be in direct harm.

What do we know about what he can do?

LAWRENCE: Missiles have sufficient range that they don't have to get near the shore to have any issues with accuracy. I don't think that's going to be an issue.

But you touched on a great point and that's, what happens the next day? The official I talked to said they cannot answer that with 100 percent certainty, what does Syria do the day after?

In terms of a military strike, you would likely see it happen at night. It has nothing to do with evasion or stealth, but it has to do with civilian casualties, always a very big calculation in any military plan. There simply would be less people on the street at 1:00 in the morning than 9:00 in the morning, so that's something also to keep into consideration.

BANFIELD: No kidding. And you always hear about Syrian air force as being significant and strong, and let's not forget how many things they buy from Russia, all too happy to provide them.

Chris Lawrence at the Pentagon for us, thank you so much.

The U.N. inspectors now in Syria actually had a chance to return to part of the site of last week's alleged chemical weapons attack. They were searching for clues on Monday, but they couldn't do it yesterday because it was too dangerous to go back in there, so a full day's delay.

CNN's Frederik Pleitgen is the only Western television journalist who's in Syria and he explains why that one-day delay can cause a major concern.

(BEGIN VIDEOTAPE)

FREDERIK PLEITGEN, CNN INTERNATIONAL CORRESPONDENT: The U.N. weapons inspectors have already said that they've found valuable clues on the ground. They visited two sites, one in the southwest of Damascus and, today, one in the northeast of Damascus, and they have said that they've already gotten valuable clues that some of that could point to the use of chemical weapons.

They said that they gathered some samples, that they also talked to a lot of witnesses on the ground, that they talked to a lot of doctors on the ground.

But there is no doubt, and this is something that the U.N. has been saying as well, that the longer all of this drags on, the less likely it is that any sort of conclusive evidence will be found.

(END VIDEOTAPE)

BANFIELD: That's Fred Pleitgen for us.

And not only that, Fred's also saying that the Assad regime is continuing its tough talk, warning that if attacked, it is going to retaliate.

Chris Lawrence was talking about our administration isn't sure what capabilities precisely Assad actually has at his disposal.

Joining us now with vast expertise on this is former U.N. chief weapons inspector David Kay, currently a senior fellow at the Potomac Institute for Policy Studies.

Dr. Kay, thank you again for being with us. The inspectors are still on the ground. I think that's a pretty good indication there will be no attack while inspectors are on the ground.

But is their departure a serious clue that that could be a start date for any kind of assault?

DAVID KAY, FORMER U.N. CHIEF WEAPONS INSPECTOR: Well, I certainly hope there will be no attack while inspectors are on the ground.

I've gone through a similar situation and the U.S. government at that time waited until we left.

The problem is exactly how long this could drag on. Inspectors really would like to spend as much time as possible on a site, particularly one like this, to gather conclusive evidence, and then the analysis will take a few days later.

If you wait for the inspectors, I think you're not likely to see an attack before next week and next week has its own problems with a group of 20 meeting in St. Petersburg.

BANFIELD: Dr. Kay, you're saying "if." Do you have any historical reference on when an attack has actually happened with U.N. inspectors in country?

KAY: None that I'm aware of. We've been very fortunate in that regard. It's been close at times in which the inspectors just got out prior to an attack.

And this -- people forget this often depends on the host country whether the Syrian will slow them down. It's not a country you can just drive across the border.

BANFIELD: Yeah, who knows if they'll become what sometimes I think Hussein called permanent guests when he held a whole bunch of civilians there in 1991.

Very quickly, I want to ask you about the intelligence that we've now come to learn, these intercepts that are specific about instructions from the Assad regime about the movement of chemical weapons in order to be ready for an attack.

It turns out that some of these intercepts may have come from the Israelis. While many people say they are second-to-none in terms of their spying, how credible is that in the international community?

How far does that go to try to forge that coalition when potentially the evidence, the hard evidence, has come from the Israelis?

KAY: Well, listen, intercepts, quite frankly, although everyone in this environment at the NSA likes to think that they are conclusive, people often talk in coded language, in stuff that itself can be interpreted many ways.

And, again, I remind you. Think back. Colin Powell at the Security Council cited intercepts that were supposedly conclusive proof. They turned out to not mean what they thought they meant.

So I don't -- regardless of who they come from, I don't think anyone, based solely on communication intercepts, is likely to go forward with this.

BANFIELD: Dr. Kay, it's good of you to join us again at this critical time. Thank you for your expertise and for your time today.

You know, if the president doesn't or does, in fact, go ahead and order an attack on Syria, don't expect a congressional delegation -- declaration, rather -- a congressional declaration of war to follow.

That last happened right after the Japanese bombed Pearl Harbor, the start of World War II. President Obama wasn't even born yet.

And the United States military has been involved in numerous conflicts since then, two big ones, the Korean and the Vietnam wars, and other ones as well, but they were undeclared wars.

Without congressional approval, would any action by the president be constitutional?

Here with me now is CNN legal analyst and constitutional expert himself, Jeffrey Toobin.

This is a big question. Congress is angry, it seems, if you go by a letter that's been signed by a few dozen of them, saying that the president just doesn't have this power.

Let me actually read, in part, what they're saying. "We strongly urge you to consult and receive authorization from Congress before ordering the use of U.S. military force in Syria. Your responsibility to do so is prescribed in the Constitution and the War Powers Resolution of 1973."

Is it?

JEFFREY TOOBIN, CNN LEGAL ANALYST: You know, there's two ways to discuss this. One, in the real world, nothing is going to stop Barack Obama. No one can go to court. This is not really a legal dispute. If the president wants to do this, he can do this.

However, the law does matter and legitimacy does matter and, at the moment, the president is on very thin ice. He doesn't have congressional authorization. He doesn't have U.N. authorization. He doesn't have NATO authorization.

BANFIELD: He didn't have it in Libya either and it went ahead just fine and very few complaints, apart from the other ensuing mess, unrelated.

TOOBIN: That's right. But that's the problem, is that you don't really have any remedy for when the president doesn't follow the law in this situation.

Yes, the Congress is encouraging him to report to ask for congressional authorization. There is a provision for him getting after-the-fact authorization, but the fact is, Barack Obama and George W. Bush, they have both acted unilaterally in circumstances and no one did anything about it.

BANFIELD: I do believe a certain Senator Joe Biden in 2007 said, I'm going to impeach President Bush if he goes ahead does it anyway.

TOOBIN: That's right. In fact, George W. Bush in the Iraq war did go to the Security Council. Everyone remembers Colin Powell holding up the alleged evidence. But he went to the Security Council, did get authorization.

Obama knows that he can't go to the Security Council because Russia would veto it, so he is either just going to just ignore all of the prior precedent or come up with some sort of authorization that we haven't seen yet.

BANFIELD: And I tell you what. I sometimes wonder if it comes down to what imminent threat to this country means because if another country, say Syria, and this why I said off the top of this program, is this really our business, if a threat was in Syria is a threat to its people, is it a threat to our people?

And I suppose you could say, a thin argument would be the president could suggest destabilization in the Middle East could affect us.

TOOBIN: There are lots of good lawyers in that administration and they could certainly make that argument.

BANFIELD: Ah, you being one of them at one point, right?

TOOBIN: Not in this administration.

BANFIELD: Former federal prosecutor, thank you, Jeffrey Toobin. It's nice to see you. Appreciate that.

An historic day that's being celebrated today on the National Mall, the 50th anniversary of the March on Washington and Martin Luther King, Jr.'s, "I Have a Dream" speech.

We're going to take you there live with Don Lemon, next.

(COMMERCIAL BREAK)

BANFIELD: Live picture for you, it's a beautiful sight, isn't it, America?

We're taking you live to Washington, D.C., a major event to evoke the spirit of Dr. Martin Luther King, Jr., on the 50th anniversary of the March on Washington and his seminal "I Have a Dream" speech. It was August 28th, 1963.

We're expecting to hear from serious notable speakers, including Oprah Winfrey, former Presidents Jimmy Carter and Bill Clinton, and then the Big Kahuna himself, President Obama is going to speak as well.

At CNN, we call Don Lemon the Big Kahuna. He's live on the National Mall right now in Washington.

Set the scene for me. You got the lucky assignment today, Don.

DON LEMON, CNN CORRESPONDENT: Can you imagine what it feels like, I mean, for all Americans, but for me and for many African-Americans around the country?

It was 50 years ago today and it was on a Wednesday, Ashleigh, a Wednesday when people were working and people came out. More than a quarter million people came out to this and now, 50 years later, they're coming out as well. A lot of people thought that the anniversary was on Saturday. No, it's actually today. This is it.

Here's the program. They started just a short time ago, about ten minutes late. So we're going to have to go with the flow today. But a lot of people are expected to be here and expected to talk. We've been hearing brilliant rehearsals, brilliant performances, from Shirley Caesar to LeAnn Rimes. Oprah Winfrey is going to kick us off a little bit later. She's going to be the first one to speak.

Two former presidents will speak, President Carter, President Clinton. And of course, John Lewis will speak, who is the only one of the original speakers who's still with us. And then President Barack Obama. What is he going to say, Ashleigh? What will be his refrain? His "I Have a Dream" refrain? Will he say, "I am living the dream? I am the dream? Dr. King had a dream and I'm here to fulfill it?" What will he say today? That's the big question. I can't way wait to see.

BANFIELD: That will be terrific. I'm glad the weather is holding out as well. Don Lemon, you've got a long day ahead of you so I'll let you go, because I know you've got some notes to get together for your next line up of speakers.

Also want to remind people that Don, while he's working away, all of our live coverage will be on top all day. Don't miss the Call to Action ceremony that gets under way at 2:00 p.m. Eastern Time as well. But like I said, all day long we'll be touching in with Don and our team in Washington, D.C.

The family of a teenager who died after being tased is suing Miami Beach and its police force. Police say Israel Hernandez was painting graffiti on a dowtown building. After a six-minute police chase, they tased the 18-year-old. The teenager's family claims that the police used excessive force and weren't prepared to handle the health emergency that then ensued.

Jodi Arias's attorneys, bet you saw this one coming, they want a change of venue for the penalty phase of her trial. Arias was convicted of the murder that she was accused of back in May, but now her attorneys say that she cannot get a fair shake in this county, Maricopa County in Arizona, as she faces the possibility of the death penalty.

George Zimmerman's wife pleading guilty this morning to a misdemeanor perjury charge. Shellie Zimmerman lied to the judge about how much money the couple had in their bank account during her husband's bond hearing before the trial. She's going to be placed on probation for one year, and she also had to file an apology letter to the judge in open court.

A high school teacher who had been warned not to touch students is instead convicted of raping a 14-year-old student. And if that's not outrageous enough, wait until you hear what the judge had to say about him, and about the student, and about how long he should be punished for. Really? Really? Thirty days? Why?

(COMMERCIAL BREAK)

BANFIELD: So we've heard some pretty outrageous sentences from judges before, but this one in Montana, well, this may take the cake. It came in the case of this man, a 49-year-old teacher named Stacey Dean Rambold, convicted of raping a 14-year-old student more than once -- in fact, carrying on a relationship with her. She later committed suicide.

Because they lost their star witness to suicide, the prosecutors made a deal with the rapist, and he was to get treatment and actually could have had the charges dismissed if he just went through with that treatment. But he got kicked out of that treatment, so he went back in front of the judge who gave him 15 years.

And just when you thought that might be the end of it, the judge, Todd Baugh, quickly suspended all but 30 days of the sentence and, hold on, it gets better. Here's the judge's reasoning. He said in court that the 14-year-old girl -- let me repeat -- 14, was, quote, "older than her chronological age" and was, quote, "as much in control of the situation" as the rapist. A 35 years older rapist.

I mean, it's amazing. I'm going to let that one sink in for a moment as we ponder just exactly what happens next.

After the sentence was read, the girl's mother, probably understandably, yelled at the judge saying, quote, "You people suck." Those were her words. And later she later spoke with a CNN affiliate KTVQ.

(BEGIN VIDEO CLIP)

AULIEA HANLON, VICTIM'S MOTHER: I was floored. I thought there was a minimum sentence. I don't know. I'm -- my faith in the justice system is gone.

(END VIDEO CLIP)

BANFIELD: I'd say faith would be rattled, guys. Want to bring in our experts, our CNN legal analyst Joey Jackson and Danny Cevallos.

First and foremost, before I get to "Oh my god, is there any recourse when it comes to judges who do this?" let's talk about the actual sentence and find out if he was within his right to do what he did. Because there's always some kind of loophole; there's always some letter of the law. Danny, get me off a ledge.

DANNY CEVALLOS, CNN LEGAL ANALYST: OK. I'm going to play devil's advocate here. As much as I don't agree with what the judge said on the bench, and judges have said strange things on the bench that could probably fall in that category.

However, the judge sentenced within the applicable -- not guidelines because Montana doesn't use that -- but the only constraint that he had was that, in fact, that 30 day sentence was the lowest he could possibly give. The mandatory minimum for this crime is 30 days that he has to serve.

So remember, this was an agreement by the prosecutor. The prosecutor agreed for him to serve this deferred sentence. When he screwed up, he screwed up because he had a visit with a minor and a sexual relationship with a woman. So that judge would essentially be sentencing him to 15 years for a visit, accidental or not, a visit with a minor, sexual relation with a woman.

And for that reason, he essentially upheld the spirit of the prosecutor's original agreement, which was a deferred sentence.

JOEY JACKSON, CRIMINAL DEFENSE ATTORNEY: However -

CEVALLOS: No, and I agree, Joey, and I know that what he said on the stand, on the bench was unusual and probably not good justification. But consider this -- that in this case, the judge was within his power, the court had the power to order a suspended sentence. That's the law in Montana.

BANFIELD: Take it from there. Because I understand what you're saying, but the optics of this stink, if optics can stink. It's offensive to the moral character of anybody who watches jurisprudence in this country. Take it from there.

JACKSON: Yes, and I think Danny gives very well, actually, what the argument is in terms of devil's advocate argument, but the practical application here, OK. Now, this, the discretion that judges have and part of that discretion means that you have to have people who have faith in the process in the system. This mother obviously has lost it because of what the judge did.

Look and examine what's here. We have a fiduciary relationship. We don't have to revisit the facts. We have a 49-year-old and a 14-year- old. You have a teacher-student relationship. What does that mean? The original agreement, in light of the fact that the child committed suicide due to the heinous actions of this person, OK, the prosecution was problematic because you don't have a witness. So the original agreement was in place.

However, at this point, the judge could have done much worse. The prosecutor asked for, Ashleigh, asked for 20 years with 10 years suspended. So how does that get to 15 years, which is fine, but then you suspend all but 30 days and then say you have the discretion to do it? You do have the discretion but it's inappropriate, improper, and it has us lose faith.

BANFIELD: I have to leave it there, but if this thing goes any further, you can bet your bottom dollar we're going to cover it and find out if there's going to be a judicial review on this, because that's another big question when judges say crazy things -- crazy -- from the bench.

JACKSON: And this was crazy.

CEVALLOS: Yes, it was. Agreed. I'm with you.

BANFIELD: Oh lord. Danny Cevallos, Joey Jackson, keep the energy up because I'm going to get you working hard today on the LEGAL VIEW. Thank you for that.

Quick programming note as well that I want to let you know. The mother of Cherice Morales, that's the victim in this case, that 14- year-old victim, she's going to be a guest on CNN's "ERIN BURNETT OUTFRONT" tonight at 7:00 Eastern. So you heard a little bit from her; you're going to hear a lot more from her coming up on CNN. I encourage you to watch.

He did not testify on his own behalf during the trial even though he was his own lawyer and now, during the sentencing phase, Major Nidal Hasan just says, "Defense rests." That's it. That was fast.

Just ahead, we're going to take you ahead to Texas where the convicted killer may soon learn if he's going to get life or death for the Fort Hood shooting massacre. (COMMERCIAL BREAK)

BANFIELD: "The defense rests." That has become a familiar refrain from Army Major Nidal Hasan. He's his own lawyer, right? He's convicted of killing 13 people at Fort Hood and he has pretty much skipped out on any chance to actually present a defense for himself in this case. And maybe that was his point all along.

Our Ed Lavandera has been following the trial. He's live at Fort Hood. Where are we standing right now? Are they getting towards the very final words?

ED LAVANDERA, CNN CORRESPONDNET: Well, we are just moments away from the jury beginning the deliberation process in Nidal Hassan's sentencing.