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Legal View with Ashleigh Banfield

Syria Applauds "Great American Retreat"; President to Make His Case for Action; Fmr. Weapons Inspector David Kay Talks Syria; Montana Prosecutors to Appeal Light Sentence for Rapist

Aired September 02, 2013 - 11:00   ET

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

JOHN BERMAN, CNN ANCHOR: Did the President push the pause button? Action against Syria is on hold as Congress examines the evidence. Meanwhile Syria applauds what they say is an American retreat.

Prosecutors in Montana want another crack at a convicted rapist. He got 30 days. They want ten years. But did the judge really miss the mark on this one.

And swimmer Diana Nyad inches closer to the tip of Florida. She's breaking records in the water as she avoids the pitfalls and sharks and jellyfish that derailed her before.

(MUSIC0

BERMAN: ello, everyone, I'm John Berman in today for Ashleigh Banfield. It is Monday, September 2nd, Labor Day.

The clock is ticking on Syria. What, if anything, will the United States do to punish the Assad regime for allegedly using chemical weapons on its people? Hackers loyal to President Assad apparently took over the U.S. Marines' Web site and urged the Corps not to attack.

This afternoon at 2:00 p.m., the president makes his case to a couple of influential leaders in Congress. John McCain and Lindsey Graham are both ardent supporters of military action in Syria, though not necessarily what the president is proposing. The official report from the United Nations weapons inspectors still taking shape, but President Obama says U.S. intelligence leaves no doubt that the regime gassed civilians.

All this while U.S. naval vessels move into the Red Sea and the Arab League is asking the United Nations and the international community to take steps against Syria, calling the regime a culprit and what it did a crime.

Our Mohammed Jamjoom joins us now, live in. And, Mohammed, the Syrian government is calling this "the great American retreat." That sounds awfully provocative, doesn't it?

MOHAMMED JAMJOOM, CNN INTERNATIONAL CORRESPONDENT: Yeah, it certainly does, John, for this is considered by Bashar al-Assad and his people a victory. They have said for a while now that if the U.S. or any other country were to attack Syria that the Syrian military and its military might -- that they would retaliate and that the U.S. or its European allies would be sorry.

Now they are saying we never thought the U.S. would attack. The fact that they didn't attack, the fact that U.S. President Barack Obama is seeking Congressional approval, they say that's a victory for them. It's sound more and more like Bashar al-Assad is being more entrenched, more defiant than he ever was before, John.

BERMAN: So, Mohammed, there is something interesting that did happen late last night. The Arab League is calling for the international community to take action, so that's a support for some action, but they did not explicitly approve of the U.S. military taking action. They are trying to split hairs here, aren't they?

JAMJOOM: Yeah, that's a very good point you're making, John. Let me step back for a second. The Arab League, even in this region, is seen as a rather toothless and ineffective body, to be quite honest, but still, this is so complicated that the U.S. really wanted to see the Arab League come out with a statement that would at least tacitly endorse the idea of strikes on Syria.

That didn't happen. What we saw for the first time from the Arab League for the first time was that they are officially blaming the Bashar al-Assad regime in Syria for a chemical weapons attack that happened. They're saying that was a heinous crime. They're saying that the perpetrators should be tried, that it should be some sort of international fair trial.

What did not happen, what's more important, is they did not call for any type of military intervention. They have made that abundantly clear. Why not? Because it is extremely sensitive in this region for these countries that have Muslim populations to be endorsing the ideas of strikes on Syria upon a population that has suffered so much over the last couple of years.

John?

BERMAN: All right, Mohammed Jamjoom in Beirut, thank you so much.

Along with the military challenges, not to mention the diplomatic challenges of taking action in Syria, there is also a domestic political component. The president is facing resistance from members of Congress from both parties.

Athena Jones is monitoring that at the White House. And, Athena, is the administration confident going into these meetings that it has today with Senators McCain and Graham and others?

ATHENA JONES, CNN CORRESPONDENT: Hi, John. I don't know if confident is the word I would use. The administration is aware of the challenge here. They face an uphill battle in convincing members of Congress to support this resolution for military action. They also are well aware of how much they need folks like John McCain and Lindsey Graham. These are people who support action against Bashar al-Assad and, in fact, support going further than what the White House is proposing. They have said they want to see any military action in Syria have a clear plan and a strategy. They want that action to strike Assad's significant military targets, air defenses, ballistic missiles, command-and-control because they want to shift the balance of power against Bashar al-Assad on the battlefield.

The White House has made clear that the goal of any sort of action here isn't are regime change. It's to punish Assad for using chemical weapons. And, so, this meeting with McCain and Graham will be important.

The White House hopes they can get McCain and Graham on board to convince colleagues on Capitol Hill to support this resolution, and as you know, it's still very much up in the air with folks on both sides having a lot of doubts and a lot of questions about how to move forward on this, John.

BERMAN: And the president needs to get some of these meetings in before he hits the road. He goes to Europe and the G20 Summit. He'll be in Moscow for a good part of the week in St. Petersburg, I should say.

Athena Jones at the White House, thank you so much. Appreciate it.

Members of Congress, about a hundred of them, came back early from their holiday recess to take up the issue surrounding Syria right now. The president argues he didn't have to ask Congress at all, and some analysts make the case that a limited strike doesn't actually require congressional approval. This has been a debate that's been going on for decades.

But now that is it administration is asking Congress to say yes, what if it says no? CNN chief congressional correspondent Dana Bash joins us now from Capitol Hill.

And, Dana, you have been talking to members all weekend. What's your latest sense of how tough a sell this is right now?

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Extremely tough. They are not there yet at the White House. They know that. In fact, they are not even close. I just want to give viewers a sense of where this falls because it certainly is not along party lines at all.

Listen to what we heard from a Democrat and a Republican after coming out of a classified briefing yesterday, Sunday of Labor Day weekend.

(BEGIN VIDEO CLIP)

REP. JANICE HAHN (D), CALIFORNIA: We want to hold him accountable. We want there to be some consequences. What is that? Is that just going to war? Is that bombing? Is that killing more people? I'm not there yet.

REP. SCOTT RIGELL (R), VIRGINIA: I'm a no based on the information that I have now, not with respect to the evidence that the Assad regime committed the atrocity. I'm a no because the clarity of where all of this goes, the definition of -- that we have accomplished the mission, that is still unclear to me.

(END VIDEO CLIP)

BASH: So there you have a pretty good, I think, example of what we have been hearing.

Now I can tell you that these conversations are continuing today as Athena was mentioning. In about 20 minutes, members of the Democratic Party inside the House are going to get on a conference call.

And we learned that tomorrow there will be a public hearing, which we did know about, but we now know it will be Secretary of Defense Chuck Hagel and Secretary of State John Kerry and others who will be testifying, a very important public hearing tomorrow.

BERMAN: That will be a very big deal tomorrow. We get to hear from both secretaries making the case inside, really, the Senate to the senators right there.

One of the things that was asked over the weekend to Secretary Kerry and others is, if Congress doesn't approve the resolution, might the president still go forward with some kind of military operation? I have to believe that members of Congress would simply be infuriated by that.

BASH: Oh, absolutely, they would. He wouldn't rule it out, the secretary. You know, whether or not that is just a tactic, a negotiating tactic, a strategy to try to force Congress to vote yes on authorization or not, who knows?

But, you know, look, the bottom line is that the president has put all the cards in the hands of people who work in this building on Capitol Hill who are known to be, you know, unreliable politically and also rather intransigent when they want to be, so it is a big question mark.

One thing I can tell you is what could make it easier for the president to pass this authorization is I was just told that they are already working inside the Democratic leadership on changing the way the legislation is written. A lot of concerns about the fact that the authorization's language the president sent up over the weekend is much too broad, and it gives them authority that's just not the limited scope of military action that he said that he will have.

So I'm told that they are trying to add an expiration date which is what a lot of people want because it's not on that right now, and also make it abundantly clear in black and white, make it the law of the land, that there will be no boots on the ground.

BERMAN: A lot of important Democrats have been asking for that assurance, some Republicans as well.

Dana Bash, I do not know when we will have seen seven or eight days like this that we are about to see in Washington with so much uncertainty with so much on the line.

Dana Bash for us on Capitol Hill, thanks so much.

As Congress decides whether or not the U.S. should act in Syria, we will ask a nuclear and chemical weapons expert how the history of these attacks could affect that decision.

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BERMAN: Signatures of sarin gas, that's what U.S. Secretary of State John Kerry says turned up in tests of blood and hair samples among the more than 1,400 people killed in that attack in Syria last month. This is the first time that any U.S. official has made specific allegations about just what chemical weapon may have been used in that alleged attack. Still to come are the findings of U.N. Inspectors, another potentially critical step in building a case against the Assad regime.

Joining me now to talk about is really someone who knows more about it than anybody, David Kay, former chief nuclear weapons inspector for the International Atomic Energy Agency. He was the man in the middle of inspecting the fields in Iraq after the invasion there to look for weapons of mass destruction.

David, I want to ask you first. You heard the Secretary of State say "signatures of sarin gas." It seems like very carefully chosen words. I'm wondering if you can explain what that might mean.

DAVID KAY, FMR. IAEA/UNSCOM CHIEF WEAPONS INSPECTOR: The reason for that is that sarin itself is very volatile. It's a liquid form. When applied, it goes to gas and that's what does most of the damage. But it breaks down almost within minutes to hours, depending on the amount of sunlight and humidity.

So what you are looking for are the degradation products. You will find metabolites in blood and urine. You'll find other products in soil that you can look for and find. It will not be generally sarin itself. It's always possible you will get really lucky and find some of that liquid still somewhere on someone's clothing, but I wouldn't count on it.

BERMAN: Now another thing the administration has made clear is they believe that the Syrian regime has been shelling, has been bombing the area where this alleged attack took place over the last week. What might affect -- what effect might that have on that area? Are they telling that to us because that might eliminate any real evidence of a chemical attack?

KAY: I don't think it will eliminate it, but it made the job of the inspectors on the ground much more difficult. First of all, it kept them from getting at the site immediately. As an inspector, if sarin is used, you would like to be there as quickly as possible to look for it. And by shelling it, everything has been mixed together, torn up. You're going to find a lot of residue of high explosives.

It's just more difficult, but believe me, the techniques exist today if you're careful -- and I think these inspectors were careful -- to find the signatures. BERMAN: Now, David, I know your job was not a political job per se. But you served just after the invasion in Iraq, and it was such a politically charged time and the legacy has been more than a decade at this point. How much do you think what happened in Iraq and the lack of evidence of any stockpile of weapons of mass destruction there, how do you think that has affected the debate right now?

KAY: It's had a tremendous shadow and it's one we've had to operate under. It's not only the mistakes in Iraq. In 1998, we attacked a Khartoum facility that we thought was making chemical weapons. It turned out it was making aspirin.

So this is something that you have to be very careful about because you have been wrong in the past. But in any case, the consequences of determining it are so high that you've got to be careful even if that shadowing effect didn't make a difference. Clearly made a difference in the United Kingdom and I think it's made a difference among Americans as well.

BERMAN: David, when the president said he was taking this to Congress, it became clear immediately that the U.S. would not take action for nine or ten days. People began asking the question, "Well, might the United Nations inspectors then come back with findings before Congress votes?" And immediately, once we started asking that question, the United Nations said it might take up to three weeks to get the findings from their inspectors back. To a layman, that seems like an awfully long time. Why so long?

KAY: Well, you realize you're separating out material. You've got to be very careful. They were careful in collection. You've got to be extra careful in analysis. Generally you will split the sample several ways. Several different groups will test it to be sure -- compare results; even compare it with a blind sample -- so that you're very sure your machinery is properly calibrated and that you reach a determination.

This is of grave consequence. Not just to the Syrians but to the United States and other countries. So you have to be careful. I suspect it will be less than three weeks; I think 10 to 15 days is probably when you will have the majority of the results back.

BERMAN: David Kay, we thank you for your expertise on this subject. No one knows the issues as well as you do. Appreciate you being here.

KAY: Thank you. Happy to be with you.

BERMAN: It's about 17 minutes after the hour right now. A shocking rape sentence in Montana has everyone up in arms. So will the court reverse that sentence -- or, rather, can they? We will have those details right after the break.

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BERMAN: So, outrage over a stunningly light prison sentence has prosecutors in Montana preparing an appeal. As our Miguel Marquez reports, it'll start with a call to the attorney general and could end up in state supreme court.

(BEGIN VIDEOTAPE)

MIGUEL MARQUEZ, CNN CORRESPONDENT (voice-over): This morning, new details about how the shockingly light sentence of a rapist, just 30 days in jail, might be reversed.

SCOTT TWITO, DISTRICT ATTORNEY, YELLOWSTONE COUNTY: The dream scenario for us is that he would do 20 years with 10 of those years suspended.

MARQUEZ: That dream scenario expected to take a step toward reality this week. On Wednesday, a critical conference call scheduled between the Yellowstone County attorney and the Montana's Attorneys General Office..

TWITO: There may be a misapplication of the sentencing authority here, and that's where I focused my attention at this point.

MARQUEZ: If the state's attorney general agrees, then Montana's supreme court would be asked to reverse the light sentence Judge G. Todd Baugh handed up in the case against this man, former Billings High School teacher Stacey Rambold. Judge Baugh sentenced Rambold to just 30 days in jail after he broke the terms of his parole for the 2007 rape of then 14-year-old Cherice Morales.

During sentencing, Judge Baugh said the 14-year-old Morales was "in as much control" as her then 49-year-old rapist and that she acted "older than her chronological age."

Moarles wasn't there to speak on her own behalf. She took her own life before trial in 2010.

G. TODD BAUGH, DISTRICT COURT JUDGE, YELLOWSTONE COUNTY: What I said was demeaning to all women, not what I believe in, and irrelevant to the sentencing. I owe all of our fellow citizens an apology.

MARQUEZ: Despite the apology, the sentence stands. The outrage, growing. Protests so far in both Billings and Butte, more planned across the state, and one online petition urging Judge Baugh to resign is now nearing 50,000 signatures. Another, over 70,000.

Miguel Marquez, CNN, Los Angeles.

(END VIDEOTAPE)

BERMAN: Clearly a lot to talk about here. Let's bring in our legal panel to break this down. A lot of people find this case simply shocking. Criminal defense attorney Heather Hansen is here and CNN legal analyst Danny Cevallos joins us right now.

Danny, the prosecutor said there was a misapplication of sentencing authority. What does that mean and what do officials need to prove to make that so?

DANNY CEVALLOS, CNN LEGAL ANALYST: Here's what you need to know. What a lot of people don't realize, they focus on the liability portion of a trial, but sentencing can be equally if not more important than that liability aspect. And I got to tell you, John, sentencing is a whole 'nother mishegoss. It is complicated.

In this case, for example, in Montana there is a two-year mandatory minimum in a case like this -- sexual intercourse without consent. However, another section boosts that to four-year mandatory minimum in the case of an under 16 person. Yet another portion allows for suspended sentences. And in this case, that mandatory minimum would allow the judge to only suspend the sentence to 30 days, which is probably what he was relying on.

So this sounds like a conflict. Who's right? Well, the Montana Supreme Court had said that in cases like this, that 30-day minimum suspended sentence on the four years or whatever has to be in the certain, specific factual scenarios, and it doesn't apply in this case. It's very complicated and it's evidenced by the fact that the attorneys, the prosecution and defense, can't even agree.

BERMAN: Heather, a term that a lot of people are familiar with is double jeopardy. But that really deals with the verdict; it doesn't deal with sentencing. You can have a sentence thrown out and actually made harsher?

HEATHER HANSEN, CRIMINAL DEFENSE ATTORNEY: Absolutely. I mean, this sentence was as result of a plea; it wasn't the result of a conviction. And that's what I think is very different here. I think even the statutes that Danny is talking about apply to when there's a conviction. And when there's a plea, both the prosecutor and the judge have a lot of discretion.

Here, it was the prosecutor who originally agreed to a three-year deferred term. So there was no sentence originally. And it was only when he violated the terms of the agreement that he was brought in front of this judge.

To be honest, this type of thing happens all the time, John. Judges and prosecutors make deals. It's how they get cases through the system. But because of what this judge said, it's become this huge, huge issue.

BERMAN: And the fact that the judge is now apologizing for it, somehow, how will that play into this whole thing?

CEVALLOS: He's apologizing for the statements that he made. If he gave a legal sentence, that will stand on appeal. And if want to burn someone in effigy in addition to the judge, like Heather said, burn the prosecution in effigy because originally they agreed to not 30 days, not 4 years, but zero days as part of essentially a deferred adjudication.

HANSEN: And the apology has been so poorly stated that it just continues to get people fired up. I think the outrage is at this judge's statements more than at the sentence because these things do happen all the time.

BERMAN: It certainly does not seem like it is calming down for anyone out there.

All right, Heather Hansen, Danny Cevallos, thank you so much. Interesting case and it continues. Appreciate it.

There's some other news now -- an inspirational story to tell you about. Long distance swimmer Diana Nyad is now less than five miles from achieving her lifelong goal, swimming from Cuba to Florida without a cage. No shark cage here, folks. She's swimming on her own. It does mean that nasty jellyfish and sharks are all around her.

She's been trying to do it for 35 years. This is a live picture of the attempt. CNN bringing you live pictures here. It's grainy, it's shaky, but this is what it looks like as it's going on now.

I can't tell you how dramatic it is. We talked to her earlier this morning on CNN -- we didn't talk to her; we talked to her crew with her. They think this is the time, the fifth attempt will be the charm. They feel like they've gotten past most of the really bad obstacles here and they think it's smooth sailing or smooth swimming the rest of the way. They have detected some pools or gatherings of jellyfish; they're trying to figure out a way to maneuver around them.

Let's see if we can listen to anything they're saying right now.

(INAUDIBLE)

BERMAN: It's hard to make it out exactly what they are saying, but one of the interesting things here -- she's got a whole team with her and there's a great deal of communication and coaching and other things that are going on with her. When we spoke to her crew earlier this morning, they actually said that Diana Nyad was cranky. And you can imagine that after swimming 100 miles or so from Cuba with five miles to go, that's the kind of thing that can make you a little cranky.

You know, if it all goes well, it could be a few hours from now when she makes it to Key West. Stay with us. We'll bring you the latest on that.

Meanwhile, the group that crippled "The New York Times" last week has moved on to the American military. And this time, they have a message for the Marine Corps. We will tell you what that message is just ahead.

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