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LEGAL VIEW WITH ASHLEIGH BANFIELD

Live Coverage of the Congressional Hearing on Obamacare; A Formal Obamacare Apology; Congress Investigates NSA Programs; Interview with Prof. Alan Dershowitz

Aired October 29, 2013 - 11:00   ET

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


REPRESENTATIVE PAUL RYAN (R), WISCONSIN: They're confused about how to do this.

You're not telling us whether or not you're proactively determining whether, say, an under 26-year-old is actually eligible for the subsidies you're trying to sell them, and once we learn whether or not they were eligible or weren't, people in --

MARILYN TAVENNER, ADMINISTRATOR, CENTERS FOR MEDICARE AND MEDICAID SERVICES: I think you're asking a different question, which is, are we doing 100-percent income verification on everyone?

RYAN: And subsequent eligibility verification.

TAVENNER: Yes. So part of the question in the application process is, are you dependent on your parents? Are you dependent on your parents' tax plan?

So that is part of the questioning that goes on, and if so, we move them in that direction.

But, more importantly, part of what you're asking is the income verification, which is done in a hundred percent of the cases.

RYAN: I'm not asking about income verification.

TAVENNER: OK.

RYAN: I'm asking about, if a person signs up, were they offered credible employer insurance? Because the employer mandate's been delayed, you don't have that verification tool, so you had to come up with a new verification tool to determine their eligibility for subsidies.

Because if a person is offered insurance at their job, that meets your definition of credible insurance, then they can't get ObamaCare subsidiaries.

TAVENNER: That's correct.

RYAN: If a person is 25-years-old and they go on the Web site and they say their income is X and that is eligible for subsidy, they can get that subsidy, but if they were eligible to be on their parents' plan, they're not allowed to get that subsidy. TAVENNER: That's right.

RYAN: The question is. are you filtering that?

TAVENNER: Yes.

RYAN: Because here's the problem. If you get this wrong, the way the law works is, you have to take that money back in their tax refund. Tax refunds matter. People plan their lives around their tax refunds.

TAVENNER: I understand that.

RYAN: They plan their spring breaks for their kids. They plan their car payment, their bills.

And what people in this country don't yet know is that, if you get this wrong, which you've already acknowledged that you're not doing it right, they're going to get their tax refund taken away from them because they will have signed up for a subsidy that they weren't eligible for, which they didn't even know.

TAVENNER: And if you've been on the site, this is part of the clear instructions to folks, including the under-age-26, including the fact that you're basically completing this application under penalty of perjury. It's very clear.

There's also help instructions on each site to explain each process, what is credible employer coverage, what happens if you're under 26. It's all available on the Web site.

RYAN: OK, so if they get it wrong, they're the ones who are going to get taxed.

UNIDENTIFIED MALE: OK, time's expired.

Mr. Lewis?

REPRESENTATIVE JOHN LEWIS (D), GEORGIA: Thank you very much, Mr. Chairman.

Thank you, Madam Administrator, for being here. Thank you for all of your hard work and for your years of service.

I happen to believe that healthcare is a right and not a privilege, that it's not just for the fortunate few, but to all citizens of America.

Now the Affordable Care Act is the law of the land. It was passed by the Congress, signed into law by the president of the United States, and upheld by the United States Supreme Court.

There have been more than 40 attempts to repeal the act and it did not succeed, and by attempting to repeal it, members of this body, members on the other side of the aisle, closed down this government and threatened the economy of the United States, causing us more than $24 billion. This reminded me of another period in our history not so long ago. During the '50s, many signed the Southern manifesto after the Supreme Court decision of 1954, and those senators, along with many Southern governors, subscribed to the doctrine of interposition and notification, and some even massive resistance.

That's what we saw on the part of the Republican members of the House and some of the Republicans in the Senate.

The Affordable Care Act is working. It is helping to make health care affordable and accessible to hundreds, thousands, and millions of our citizens who have never had it before.

When I was brought up in rural Alabama, we couldn't afford to see a doctor. (Inaudible) poor people in Alabama.

In Georgia, in Kentucky, in Arkansas and all across the Deep South can now see a doctor.

We must do what is right, what is fair and what is just.

Now, Madam Administrator, I have a chart here this morning --

(END LIVE FEED)

ASHLEIGH BANFIELD, CNN ANCHOR: As the gentleman from Georgia continues with his presentation on Capitol Hill, hello, I'm Ashleigh Banfield. It is Tuesday October 29th. Welcome to LEGAL VIEW.

Exactly four weeks into the sputtering rollout of the online health insurance marketplace, a top government official has been taking her medicine, I think that's fair to say, on Capitol Hill this morning.

The head of the Centers for Medicare and Medicaid Services is facing a House committee that wants to know when ObamaCare will work the way it's supposed to work and who is to blame for the problems thus far.

So far this morning, members have heard a promise and they've heard an apology.

(BEGIN VIDEO CLIP)

TAVENNER: We know that consumers are eager to purchase this coverage, and to the millions of Americans who have attempted to use this to shop and enroll, I want to apologize to you that the Web site has not worked as well as it should.

We know how desperately you need affordable coverage. I want to assure that you that healthcare.gov can and will be fixed, and we are working around the clock to deliver the shopping experience that you deserve.

(END VIDEO CLIP)

BANFIELD: You just might consider this warm-up for tomorrow, because that's when real fireworks might fly when Health and Human Services Secretary Kathleen Sebelius, whom one Republican senator calls a laughing stock, is going to be facing all these same questions and perhaps a whole lot more.

In the meantime, how many times do you think you have heard this?

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATE: If you like your doctor, you can keep your doctor. If you like your healthcare plan, you can keep your healthcare plan.

(END VIDEO CLIP)

BANFIELD: Maybe not. It turns out quite a few people may not be able to keep their healthcare plans after all and may have received notices already that that plan, gone.

My colleague Joe Johns joins me now with more on that. There are vast reports about when people knew that this might be the case, why they didn't say anything and how many people might actually lose their plans.

But what is the actual story as we know it now, Joe?

JOE JOHNS, CNN CORRESPONDENT: The truth of it is, Ashleigh, this story has been around a long time, and we're now getting a new look at it because so many people are actually getting notices saying that their insurance is being canceled.

But let me get to that in just a minute, because Marilyn Tavenner in this hearing actually addressed that.

She did apologize for the problems with the Web site. Got a series of questions from the chairman about how many people have enrolled.

It's pretty clear, though, that she has a lot of friends on the Hill, not a lot of "gotcha" questions.

One tough question is what you're talking about, Ashleigh, the number of people who are getting cancellation notices from their insurance company.

She recited the administration position that these people who got their insurance on the private market may have gotten their insurance after the ObamaCare law passed or that the insurance changed some time after the ObamaCare law passed. That means they're not grandfathered in.

Tavenner pointed out, also very importantly, that some of the insurance companies changing policies are doing so on their own volition.

The administration says they weren't compelled to do that, but these notices that we've seen seem to indicate that these insurance companies are saying, our policy as it stands now doesn't comply with the ObamaCare law so we're going to change it.

Of course, that's no solace for those people out there getting the notices and finding out that they may have to pay more. For some of those people who may have to pay more, we're told, there are actual subsidies that the government will give them to help make that insurance less expensive.

So, Ashleigh, this is a story that's been around a long time, and I know it seems like a big surprise, and it is for those individuals in the private market who got their insurance after ObamaCare passed.

BANFIELD: But, Joe, as you know it, the devil is always in the details and the wording, and the impact is often in the volume.

And Chris Christie, someone who is very loud and impactful and has a lot of fans out there, had something to say on CBS "This Morning" about when the president knew, what he knew and why he has said since 2009 you can keep your doctor, you can keep your health plan if you want to.

Have a listen to this, Joe.

(BEGIN VIDEO CLIP)

GOVERNOR CHRIS CHRISTIE (R), NEW JERSEY: The real problem is that people weren't told the truth.

You can remember they were told that they would be able to keep their policies if they liked them, and now you hear hundreds of thousands of people across the country being told they couldn't.

So the White House needs to square that with what was told to the American people and told to the Congress beforehand, and it doesn't seem to square at the moment, but we'll wait and see.

(END VIDEO CLIP)

BANFIELD: And Joe, the president is taking it on the chin for a lot in the last two weeks, especially since the government shutdown and the redirection of the message from many of the Republicans.

Is it fair for Chris Christie to say something as strident as the president is not telling the truth? That's very strong language.

JOHNS: Right. And a lot of people, especially those people getting those notices, and those are the people I think of the most, are going to see this as a little tricky, a little Clintonian, a little lawyerly, when you say, yes, you can keep your policy as long as you had it before ObamaCare passed, and as long as it hasn't changed since ObamaCare passed.

It does sound tricky and a little difficult for people to understand, but, you know, the bottom line is, everything stands one way before a law passes then it changes after the law passes, and we all know that.

So it's a little tough to live with when you're looking at your bottom line, though, and trying to figure out how you're going to write that check. BANFIELD: Let me guess, Joe. You're suggesting that tomorrow is going to be even fiery than suggested when Kathleen Sebelius takes that hot seat?

JOHNS: I think it's pretty clear watching Marilyn Tavenner. She's gotten a few heated questions.

BANFIELD: I think so.

JOHNS: Right, but it's also true.

BANFIELD: (Inaudible) tomorrow.

JOHNS: Right, yeah, I think you're going see a lot more with Sebelius tomorrow.

BANFIELD: OK, Joe Johns reporting live for us from Capitol Hill. Thank you.

We're continuing to follow the story, the president dealing with the scrutiny of the healthcare Web site, but also that other thing, as well, spying on 35 world leaders.

What did he know? When did he know it? Seems to be an oft-repeated refrain, doesn't it?

It is just the last hour that we heard the first apology from the administration for the healthcare.gov Web site problems, and now we look ahead to this.

Then later on in the program, when is someone too dangerous to be released from prison, even if he or she has served time? The full- time?

Can psychiatrists who clear them for release be wrong? And then who in the end suffers?

One community says it could be them. That's coming up.

(COMMERCIAL BREAK)

BANFIELD: Welcome back. Congress is also investigating another ongoing embarrassment for the Obama administration. And that would be the seemingly hyperactive eavesdropping on America's best and oldest allies by the National Security Agency. That agency's director, along with the director of national intelligence are due to face the House Intelligence Committee in open session in about two and a half hours from now. President Obama is commenting too, but the questions just keep piling up.

Here is our chief national security correspondent, Jim Sciutto.

(BEGIN VIDEOTAPE)

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: President Obama would not confirm the NSA was spying on the phone calls of U.S. allies like Germany's Chancellor Angela Merkel. But, in an interview with the new cable network, Fusion, he both defended U.S. intelligence activities --

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: The national security operations generally have one purpose, and that is to make sure that the American people are safe.

SCIUTTO: -- and conceded that maybe they've got gone too far.

OBAMA: I'm initiating, now, a review to make sure that what they're able to do doesn't necessarily mean what they should be doing.

SCIUTTO: Senior administration officials tell CNN President Obama did not know about the NSA surveillance of Merkel and other allies until earlier this year, and when he found out, he ordered a stop to some of the programs.

The Democratic chairman of the Senate Intelligence Commiittee, Dianne Feinstein, usually an ally of the White House, says that's not good enough. And wants a, quote, "total review of all U.S. intelligence programs."

European lawmakers are in Washington this week pressing the case for limits. The head of the E.U. delegation told me E.U. citizens find U.S. spying disturbing.

CLAUDE MORALES, EUROPEAN PARLIAMENT CIVIL LIBERTIES CMTE.: They feel very uneasy. They don't know why it's happening, why our strongest ally is doing it.

SCIUTTO: Amid reports the U.S. surveillance of leaders of allies began back in 2002, well before the Obama administration. Here's one explanation former Vice President Cheney gave CNN's Jake Tapper.

DICK CHENEY, FMR. VICE PRESIDENT OF THE U.S.: We are vulnerable, as was shown on 9/11, and you never know what you're going to need when you need it. And the fact is we do collect a lot of intelligence. And without speaking about any particular target or group of targets, that intelligence capability is enormously important to the United States, to our conduct of foreign policy, to defense matters, economic matters. And I -- I'm a strong supporter of it.

SCIUTTO: The director of national intelligence, James Clapper announced overnight that he is declassifying a whole trove of documents about the collection of intelligence under the Foreign Intelligence Surveillance Act; this is the law that authorized collection of data on virtually every telephone call here in the U.S., and later today Clapper and the head of the NSA, Keith Alexander, will be testifying on the Hill where they can expect to face hard questions from lawmakers.

Jim Sciutto, CNN, Washington.

(END VIDEOTAPE)

BANFIELD: And I'm pleased to be joined now by one of the preeminent defenders of civil rights and liberties in this country, or any other country for that matter, Alan Dershowitz. He's a Harvard law professor and author of, most recently, "Taking the Stand: My Life in the Law."

Professor Dershowitz, thanks for coming in on this particularly timely day. When it comes to the National Security Agency potentially tapping a telephone of someone like Angela Merkel, is there anything that comes across your radar that doesn't scream of this is fair? This is the way it works? Or is there something more to it?

PROF. ALAN DERSHOWITZ, HARVARD LAW SCHOOL: No it's fair. They would try to bug our president if they could. We do it -- we've been doing it for years. Wouldn't it have been wonderful if we could have bugged some of the people before the Second World War? What's fair in peaces is different from what's fair in war.

The question, is it tactically wise. Should we be listening in on really close allies like Merkel, or should we have an understanding with them, we don't listen to you, you don't listen to us? It's nothing legal or - or immoral about it.

BANFIELD: There's no expectation of privacy that the German chancellor would have?

DERSHOWITZ: When you're a public figure, a leader of a great country, you don't expect privacy. I teach my students who are going to be future leaders, when you become a leader, everything you say is fair game. Just remember be careful, be very cautious.

There are lots of hard questions that he remain. Who is an ally? Was Great Britain an ally when they refused to help us in the bombing of Syria? Is Egypt an ally when they're in the midst of a revolution? Is France an ally? They're constantly stabbing us in the back. Do we really have allies or do we only have tactical associations? These are hard questions.s

BANFIELD: Christiane Amanpour did an interview yesterday with the "Guardian" reporter who ultimately was ultimately the conduit for the leak of Edward Snowden's material that has led to much of our discussion today. And the suggestion was - by Glenn Greenwald, that some of that spying isn't necessarily for the purposes of national security, but instead is for the purposes of commerce, and trade, and other advantageous behavior. No difference in the eyes of the law, no difference in terms of protections? Nothing like that?

DERSHOWITZ: No, I think there would be considerable differences. If anybody could really establish, they will commercial -- we know that everybody spies on us commercially.

BANFIELD: So, fair if it's about terror, not fair if it's about business - if it's the NSA doing it?

DERSHOWITZ: I don't believe Greenwald. I don't trust him. He is a radical ideologue who would never have released any of these materials if they were against Cuba or against China. He hates America, he never met a terrorist he didn't like. You want to read what he thinks of me on the back of my book? He calls me deranged. BANFIELD: Oh, yeah, deranged. How about that.

DERSHOWITZ: And I put it on the back of my book because I'm proud of my enemies. So look, he did a good thing by publishing this material, but don't trust him when it comes to judgment. He does not have American interest at heart.

BANFIELD: I have other things I'd like to ask you, so if you have time, if you could stay put.

DERSHOWITZ: Happy to do it.

BANFIELD: Oh, that's good to know. It's good to know -- maybe you'll have more time after December after you retire from Harvard. You can come by every day. Alan Dershowitz, thank you.

There are some calling President Obama - they're actually calling him "the bystander in chief." Is that a fair title? What he knows and what he doesn't know have many people questioning his leadership. And coming up next, the big debate about whether that's fair, accurate, whether that's balanced. Coming back.

(COMMERCIAL BREAK)

BANFIELD: Some U.S. officials say President Obama didn't know about the problems with the healthcare enrollment website, and that he only recently found out about an NSA operation that wiretapped German Chancellor Angela Merkel's phone. But other officials say he or at least his staff did know.

Which is it? Is he aloof and out of touch, or not coming clean with us. Or is there something completely gray in the middle that no one knows anything about? I want to bring in David Rothkopf, the CEO and editor-at-large of "Foreign Policy Magazine," and CNN political commentator and Democratic strategist Maria Cardona.

Welcome to you both, Maria I want to begin with you.

MARIA CARDONA, CNN POLITICAL COMMENTATOR: Hey, Ashleigh.

BANFIELD: Pete King, who is a key member of the Homeland Security Committee said of the surveillance issues, if the president didn't know that raises serious questions about what he's doing as chief executive. Isn't that fair?

CARDONA: Here is the problem with that. And the president said this on Fusion Network in his interview recently. We don't know whether he did know or not, because it's classified. And that's as it should be when it comes to this kind of information. I think what's important is he takes the long view. He takes a look at this, he clearly knows that there are issues. He doesn't want there to be problems with our allies. He said that there's going to be a total review of NSA policies, especially when it comes to what we're doing with out closest allies, and he assured our closest allies that that is going to be the case. He's going to make sure that they are comfortable with what the processes are for the United States moving forward, but it's all about national security, so we're never really going to know one way or the other.

BANFIELD: Is that the gray area? And David, maybe weigh in on here, because I know you've been somewhat critical, suggesting that the White House is adopting an incompetence policy instead of the " we screwed up and we'll fix it" policy.

DAVID ROTHKOPF, CEO AND EDITOR, FOREIGN POLICY MAGAZINE: I mean the White House is offering you two choices, either you believe the president didn't know with regard to a big policy that was clearly overreaching and has now got our relations with the world in a severely difficult state, or he did know, he's not telling the truth about it, and he oversaw this process getting to this state.

And, you know, it's one thing to say, well this started in 2002 under George Bush. We're five years into the Obama administration. The notion that this is somehow a legacy, somehow is outside his control and that he's no longer responsible, doesn't wash. And it doesn't wash not only with the American voters, but international leaders who were told he didn't know just don't believe it.

BANFIELD: But isn't it something in the middle? I mean, honestly when you think about it David, the I didn't know, even Fran Townsend who is one with of our CNN national security analysts and she's a member of the CIA External Advisory Board, said very clearly that priorities are well-known by the White House, but specific targets, however, like perhaps Angela Merkel's cell phone is not the kind of thing that is discussed. Isn't it better left you unsaid? Do your work, report to me the work product, don't get me implicated. Isn't that the way government works?

ROTHKOPF: Sure. And if we were talking about a couple of targets, that would be the case. Or if we were only talking about targeting 35 leaders, that would be the case. But we're in the midst of a series of revelations that show that the United States was listening in on tens of millions of people overseas and at home, raising questions of privacy, raising questions of national sovereignty, alienating our allies, producing a backlash against U.S. commercial interests, producing a backlash against an open and free internet worldwide.

There were a lot of risked undertaken in the name of intelligence that weren't weighed properly. I think at the end, that's the core issue. What risks are we willing to take in exchange for what returns? And clearly the benefits that come from listening in on your allies, or doing commercial espionage, are not significant enough to warrant these kind of risks which are now really doing the kind of damage that Obama was essentially hired to repair.

BANFIELD: Maria, I just want to switch over topics. I mean, it's all the same topic, but a different basket. And that is what the president knew about the rollout of the Obamacare website and when he knew about the debacle that it was. All of these claims that there wasn't any major testing, that there were crises upon crises before the October 1st rollout. And yet the president has said over and over, almost ad nauseam, the buck stops with me. What is it? Does the buck stop with he him when it comes to this mess, or is this a contractor problem? Where's the blame going to go?

CARDONA: I think he was the first one to stand up Ashleigh in his press conference to take responsibility for this. And that is what a competent leader does. He said -- he himself said this is unacceptable. The way that this rollout has happened is unacceptable. Democrats think it's unacceptable. We cringe every time this is being talked about, but you know what, Ashleigh, the -

(CROSSTALK)

BANFIELD: What about that whole notion you're not going to lose your policy. If you like your policy or your doctor, you're not going to lose it. All of these people are getting notices. That can't be something that they didn't know was going to happen.

CARDONA: Sure, well Joe Johns actually, I think, focused on the right thing, which was that those are policies that the insurance companies are canceling. They could grandfather those in if the insurance companies wanted to.