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THE LEAD WITH JAKE TAPPER

Federal Judge Calls NSA Surveillance Legal; Breaking the Ice; New Battle for Family of Brain-Dead Teen; Icebreakers Racing to Rescue Ship; Former Ambassador to U.S. Killed in Attack

Aired December 27, 2013 - 16:00   ET

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


JOE JOHNS, CNN ANCHOR: Get used to it. Spying on you and everyone else in the country is the new normal, according to a judge.

I'm Joe Johns. And this is THE LEAD.

The national lead. A few days after a judge ruled the other way, a different federal judge says the NSA's mass collection phone data program is legal because of 9/11.

She's a young teen who has been declared brain-dead by doctors and a judge agrees, but her family is still hoping and praying for a miracle and wants her moved. Will the hospital that already considers it too late help them?

The world lead. And you thought breaking the ice with your in-laws was tough. The race to reach a ship frozen in place off the coast of Antarctica hits a snag when a vessel made to crack the ice gets stuck in the ice.

I'm Joe Johns, in for Jake Tapper.

We begin with the money lead. If you still rely on the stock market to predict how Americans view the economy, then you're probably also to blame for making mood rings a thing for as long as they were. Even with the record highs and an end-of-year rally on Wall Street, it seems most Americans still have a pretty glum outlook on how the economy is doing.

According to a new CNN/ORC poll released this morning, 68 percent think it's in bad shape while only 32 percent give it a good rating. Despite reports of booming home and auto sales and unemployment hitting a five-year low, most people say they mainly hear bad news about how the economy's doing.

Joining me now live from the New York Stock Exchange is CNN business correspondent Zain Asher.

Zain, what's with this disconnect?

ZAIN ASHER, CNN CORRESPONDENT: Hi, Joe.

Well, certainly, there's a difference between the reports you see in the media about the economy getting better and what people see when they go outside and they see their neighbors struggling to find work or they see empty storefronts. Right? There is certainly a disconnect between what they read and how they feel.

A majority of people based on that CNN/ORC poll think that economic conditions won't get much better a year from now, and when they were asked if the economy has made them put off making major purchases, 50 percent actually did say yes.

Here's what's going on. The economy is certainly getting better, but there are some major holes in this ship. On the one hand, stock market is surging. Joe, we have seen 50 record highs so far this year thanks in part to the Fed stimulus, but only half of Americans are even invested in the stock market at all to begin with.

So where's the trickle-down? Also, we have seen the housing market recover for sure, home prices rise, but mortgage rates are creeping up as well. We saw the yields on the 10-year note crossing 3 percent. So that could have an impact on mortgage rates, which could reverse the gains we have seen in the housing market.

Lastly, with the job market, we have seen signs of improvement, two straight months of payroll numbers over 200,000, but at the same time, 1.3 million Americans might be losing their long-term unemployment benefits as well, so certainly a disconnect between the rich and the less well off -- Joe.

JOHNS: Zain, we also learned some information today about that Target credit card hack. What are you hearing on that?

ASHER: Right. So we're hearing from Target today that they have confirmed that, in that hack, pin data was actually stolen.

But Target is also saying at the same time that that data was heavily encrypted and they don't believe that the hackers will actually be able to unscramble the pin numbers. So Target at this point really just sort of desperate to salvage any piece of trust they have left with consumers. So they did get pin data, but the data was heavily scrambled. That's what they're saying.

What's interesting is what Target told us yesterday. They told us something very different yesterday. They told us yesterday that, to date, there is actually no evidence that unencrypted pin data was compromised. And now today they are actually coming out and saying that pin data was compromised, but they don't believe these hackers would be sophisticated enough to actually unscramble those pins and actually steal people's numbers.

So, a little bit confusing, but one hacker I spoke to is actually optimistic about the pin numbers not being compromised, hopefully. Fingers crossed -- Joe.

JOHNS: Zain Asher, thanks for that. Good to see you.

ASHER: Good to see you, Joe.

JOHNS: It's getting pretty confusing when it comes to figuring out how the U.S. judicial system feels about the legality of the NSA's spying practices. Earlier this month, a district court judge ruled that the phone record collection program likely violated the Fourth Amendment, but, today, a different federal court judge, this one in New York, ruled the program is legal, dismissing a challenge by the American Civil Liberties Union.

He writes: "While robust discussions are under way across the nation, in Congress and at the White House, the question for this court is whether the government's bulk telephony metadata program is lawful. This court finds that it is, but the question of whether that program should be conducted is for the other two coordinate branches of government to decide."

I want to bring in CNN's justice reporter, Evan Perez.

And, Evan, we just want to read a little bit of that earlier decision from Judge Richard Leon this month. "The court concludes that plaintiffs have standing to challenge the constitutionality of the government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim and that they will suffer irreparable harm, absent preliminary injunctive relief."

So, for those of us sitting at home, what's the takeaway now that you have these two competing rulings that go in completely opposite directions?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, yes, exactly.

But you have two judges who are of the same rank, so, basically, the two opinions cancel out each other. What we have to do now is the NSA -- and the NSA is going to continue doing its program, its metadata collection. It will be some time before the appeals work themselves out, probably another couple years before this maybe finally makes its way to the Supreme Court, and they can once and for all decide whether or not this program is legal or not.

At the same time, the president has this blue-ribbon panel that just came back with a recommendation that said it should be taken out of the hands of the NSA and that this program should be put in the hands of the phone companies that collect the data in the first place, and then the NSA would have to get a court order to be able to access that data. So that may yet be another change that's in the works.

JOHNS: So they are always struggling to try to find the right balance.

I want to read another part of the opinion by Judge Pauley. "Liberty and security can be reconciled and in our system they are reconciled within the framework of the law. The success of one helps protect the other."

Now, he says they sort of complement each other, but he is strongly implying that security wins out, at least as far as he's concerned.

PEREZ: Well, he begins, the judge today in this ruling in New York, he begins at 9/11.

And so you can see where he is coming from. He says that, in 9/11, the government failed to catch certain things and could have prevented the attack, and if you look at the ruling last week from Judge Leon in D.C., he begins from the point of view that what the NSA is doing might be almost Orwellian, and That it is a problem with our liberty.

So this judge is basically saying that security is the issue and it wins out here.

JOHNS: The case that inevitably gets cited in all of this stuff is from 1979. It's stated in this case, too. Smith vs. Maryland said people who use the phones have no legitimate expectation of privacy, but that case really didn't say anything about metadata itself.

And we weren't talking about metadata in 1979. So this is kind of new ground for the courts, isn't it?

PEREZ: Well, that's the ruling that the FISA court, the court that oversees surveillance, repeatedly cites to say that this is legal, and they reauthorized this thing periodically, every year.

So what's going to happen now, I think, is you see the Supreme Court already kind of heading this way. Justice Sotomayor last year in a ruling hinted that perhaps it might be time to look at whether or not the privacy rights from 1979, the way they were interpreted in 1979 still applies today, given that the amount of data, the amount of information that we are providing to the phone company is so much more than it was in 1979, Joe.

JOHNS: All right. Thanks. Always good to see you, Evan.

PEREZ: Thank you.

JOHNS: Talk back to you again soon.

OK, everybody, grab those Kleenexes and crappy DVDs. It's flu season, the time of year where that sick co-worker who just refuses to stay home ruins your physical well-being. Thanks a lot, overachiever.

The Centers for Disease Control and Prevention says that 10 states are reporting widespread flu activity, which means over 50 percent of counties or regions in the state.

For answers on all things flu-related now, let's bring in Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases at National Institute of Health. He joins us on the phone.

Dr. Fauci, looking at this report, what struck me was that the most common strain being reported is the H1N1 strain, which our viewers who have been watching for awhile may better know as swine flu that caused a pandemic in 2009. Should we be concerned about this?

DR. ANTHONY FAUCI, DIRECTOR, NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS DISEASES: Well, we have to remember now that we're not really calling it swine flu anymore, because it's really turned into and morphed into a seasonal flu, because ever since 2009, the H1N1, that same strain, has really been the predominant seasonal influenza strain that we have seen through 2010, '11, '12 and now into '13-'14 season.

It really has sort of incorporated itself into the standard seasonal flu. There should not be any additional concern that this is going to be anything like the pandemic flu season, when virtually the large proportion of the population had never been exposed to anything like the 2009 H1N1.

Now we have multiple years of experience not only with exposure, but also with vaccinations, seasonal vaccinations, because our vaccines have included the 2009 H1N1 ever since the 2009 pandemic, and we have been having our vaccinations every year since then. So it really is a totally different story than it was in 2009.

JOHNS: So, Dr. Fauci, break this down for me a little bit. Back in 2009, the H1N1 was new and now it's not so new and you know how to deal with it and that's why it's not going to be as big a problem?

FAUCI: Well, yes, there are two reasons.

First of all, you remember in 2009, by the time we got the vaccine available for individuals throughout the country, the pandemic had already peaked. Right now, the vaccine has contained the 2009 H1N1 in it for the last several years. But also, importantly, a substantial proportion of our population has had some experience with this flu, either through exposure, infection or even vaccination.

So there's a lot of background immunity to it. That doesn't mean you want to put down the potential seriousness of any flu season, because flu is a serious disease. But this is not now being confronted with a brand-new virus. This is a virus we know about and that we have had experience about, and that is contained in our vaccine this year.

JOHNS: So looking at this data with our expert eye, 10 states reporting widespread flu activity, how would you describe the start of the flu season? Not particularly bad?

FAUCI: This is what we would really call a typical flu season. You start to see these spikes in the winter, and we have just turned over into the winter now. It's the end of December. It usually peaks in January or February.

So, if you look at the numbers of the number of states that have widespread and the number of states that have high level of influenza- like illness, it's not really substantially different than a typical flu season. Again, you always have to stay heads-up because you don't know what's going to happen in the next several months, but based on what we know now, there is not really anything that's significantly different than what we have seen in previous flu seasons.

JOHNS: Dr. Anthony Fauci, thank so much for your time.

FAUCI: Always good to be with you. JOHNS: When we come back: A mom still believes her daughter can recover after being declared brain-dead. But the hospital says all hope is lost. What will Jahi McMath's mother do now as a December 30 deadline approaches? I will ask her coming up next.

And later, it's about to be the end of an era in New York if the city's new mayor has his way. Why is he vowing to stop horse-drawn carriage rides in Central Park? That's ahead.

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JOHNS: Welcome back to the lead.

Family members of a 13-year-old girl on life support call it the miracle they have been waiting for. They say a hospital in the San Francisco area has agreed to give Jahi McMath long-term care, despite the fact that multiple doctors have declared her brain-dead.

But there's a catch to all of this. Jahi would need breathing and feeding tubes inserted into her body in order to be transferred away from her current facility. At this point, the hospital has only agreed to transfer Jahi in her -- quote -- "current state."

In a letter addressed to the family's attorney, the hospital also requested information about the new facility from the family and consent from the coroner to transfer a patient considered legally dead.

This is an emotional and painful ordeal that began after Jahi suffered complications from a tonsillectomy. She was put on life support and doctors at Children's Hospital in Oakland insisted family members pull the plug. But the family fought back and took their case to court and on Monday, a judge ordered the hospital to let Jahi stay on life support until December 30th.

The family's now hoping to have her transferred before then but they're running short on options.

Joining me now live from San Francisco are Jahi McMath's mother, Nailah Winkfield, and her uncle, Omari Sealey. Thank you both for being with us.

NAILAH WINKFIELD, JAHI MCMATH'S MOTHER: Thank you.

OMARI SEALEY, JAHI MCMATH'S UNCLE: Thank you for having us.

JOHNS: Nailah, we just received a letter sent from children's hospital to your attorney about transferring Jahi. It reads in part, "Please identify this facility so that children's can confirm directly the facility's willingness to accept Jahi's body after full disclosure of its condition, including the fact that Jahi is brain dead."

It goes on to say, "What steps have you taken to obtain that consent? Is your family prepared to give the hospital everything it's requested including information on the new facility, the transportation plan, legal documents from the coroner?" So, are you prepared to do all of that?

WINKFIELD: Well, that letter must have just came because I haven't seen that letter from children's hospital. Whatever I need to do to get my child transferred out of there, I will do.

JOHNS: Can you give us any information about this new long-term care option? What do you know about it?

SEALEY: Well, with the new facility that we're supposed to be taking Jahi to, it looks like we may have lost that particular facility due to the hesitation of Children's Hospital. So they only had one bed left and it looks like now they have withdrawn after the statement from Children's Hospital last night. We do have others that have come in the mix now and we're working with them right now behind the scenes. So, there is a few other facilities right now that are in the works.

JOHNS: We still keep coming back to this question of whether Children's Hospital is going to refuse to perform the medical procedures needed to transfer Jahi. If they don't do that, what's your next step?

SEALEY: Well, for that particular acute facility here in the Bay Area, that was their request to have that procedure. The other ones that we do have in mind right now, they are not requesting for the procedures so it looks more promising. So, we may actually be able to move her in her current status.

JOHNS: And the hospital is actually saying there's nothing else that needs to be done?

SEALEY: The hospital, they released a statement to everyone except us. We weren't notified at all. I found out on the drive over here via text message about this. I'm not sure exactly what's going on and what they're allowing because they haven't spoken with us directly.

JOHNS: Nailah, what do you want the hospital to do here?

WINKFIELD: I want them to -- first, I want them to, while she's there, to give her some nutrition because I feel like that's what my child needs to heal, and they're not doing that. So, that would be one of the first things. And then whatever the other place would need for them, that's what I would want them to do, to just make it an easy, smooth transition.

They don't want her there, so why wouldn't you not do the things you need to do to get her out of there.

They don't like the attention that's going on over there so just help us to move her out of there.

JOHNS: Have any of these doctors convinced you of their position that she's brain-dead? What would it take for you to have some assurance that these doctors are right? WINKFIELD: I would probably need for my child's heart to stop, to show me that she was dead. Her heart is still beating. So there is still life there.

JOHNS: Omari, you have mentioned you have seen some positive signs from Jahi over the past couple weeks. Can you share some of those with us?

SEALEY: Yes. Her respirator machine or her ventilator settings, it has a line that's green that shows that that's the ventilator doing the breathing for her. When it turns pink, that's her taking her own breath. Lately, there's been a lot of pink showing, showing her taking her own breath. She's starting to have more body movement within herself, of her moving her entire body and shoulders now, not just wiggling her feet or her toes. Her arms and shoulders are starting to move. So, it looks like she's showing signs of life.

JOHNS: Nailah, tell us how much it meant for you to be able to spend Christmas with your daughter.

WINKFIELD: It was -- it was beautiful because I didn't think that it was going to happen, because Children's Hospital was really adamant that they did not want that to happen. So it was beautiful to have the whole family come and people brought food and we tried to make it as normal as possible but you really can't make it normal when your child is not able to enjoy it.

But it was just a good feeling as a mother and as a family that I could spend Christmas with my child. And people sent her gifts, too, from all over the world. They sent gifts to her, to the hospital, and we put them under her tree and I do believe that one day, she will be able to open them.

It was a good feeling. I was really happy about that.

JOHNS: Nailah Winkfield, Omari Sealey, thank you both for joining us.

WINKFIELD: Thank you.

SEALEY: Thank you for having us.

JOHNS: Coming up next, a stranded ship and a rescue ship, both stuck in an icy ocean. So what now?

And later, she rubbed shoulders with Marilyn Monroe and Frank Sinatra. So, what is she doing is an encore? Shirley MacLaine sits down with us.

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JOHNS: Welcome back to THE LEAD.

The world lead. If they never see a white Christmas again, it will be too soon. Right now, a Chinese ice breaker named the Snow Dragon is trying to get to a vessel that's been stuck in the ice at the bottom of the earth for four days. Only now, the ice breaker is stuck in the ice, too.

The Russian flagship was on an expedition to Antarctica when a blizzard hit and surrounded it in ice on Monday. Seventy-four people are on board, including tourists and researchers. They have enough supplies and food for now, but they're stuck in Antarctica. And you freak out when there isn't a Starbucks around.

Diana Magnay has the latest on the race to free the vessel.

(BEGIN VIDEOTAPE)

DIANA MAGNAY, CNN INTERNATIONAL CORRESPONDENT: It's painfully slow progress but rescue is on hand and within eyesight for the crew stranded for all of Christmas week in the frozen seas of the Antarctic.

Just hours ago, joy on board the ship. Passengers pointing out into the distance as the Chinese ice breaker set to rescue them, slowly makes its way towards them.

UNIDENTIFIED MALE: (INAUDIBLE)

UNIDENTIFIED MALE: That's the ice breaker coming to rescue us.

UNIDENTIFIED MALE: Brilliant!

MAGNAY: This Russian flagship stuck in the ice for four days now after weather conditions turned bad. But help is on its way.

And behind it, two more ice breakers, one French and one Australian, if the Snow Dragon gets stuck, too.

Onboard are 74 researchers, a mix of professional and amateur scientists who decided to spend their Christmas checking out the effects of climate change in the frozen Antarctic.

They had sailed around 100 nautical miles east of their starting point, the French Antarctic base of Dumont d'Urville, when they got stuck. Despite blizzards with wind speeds of nearly 45 miles per hour, we had the morale remains high. And while they wait, they have had a few friendly visitors checking in to say hello.

But this morning's visitors are far more welcome. Everyone on board the ship is safe and well. They had a great Christmas, says Chris Turney, who is the expedition leader who we heard from at the top of that report. And as you can see, people are still in very high spirits. They're still able to make jokes.

Diana Magnay, CNN, Moscow.

(END VIDEOTAPE)

JOHNS: Diana Magnay, thanks for that.

A man who dedicated his life to promoting peace was one of six people killed in a deadly car bomb attack in Beirut. Mohamad Chatah was a former Lebanese finance minister and ambassador to the United States. His convoy was hit in downtown Beirut this morning, leaving some cars burned beyond recognition.

The blast was so powerful, it knocked out windows in office buildings a block away and could be even heard inside a Lebanon TV studio during the middle of a live broadcast.

Take a look.

(VIDEO CLIP PLAYS)

JOHNS: Joining me now is CNN foreign affairs reporter, Elise Labott.

Elise, you knew Chatah personally. What can you tell us about him?

ELISE LABOTT, CNN FOREIGN AFFAIRS REPORTER: I did. Well, I first came to know him, Joe, when he was chief advisor to the then-Prime Minister Fouad Siniora, and they were part of this March 14th opposition that really was instrumental in getting Syrian forces out of Lebanon.

And when you think about the Arab spring, this was really the first Arab Spring. It wasn't about economic opportunity or jobs, but it was about people standing forward and saying we don't like the way our country is running. And he really stood up for the Lebanese to be free of sectarian influence and interference and it's a very significant loss for the Lebanese people.

JOHNS: And he was highly critical of Hezbollah. In fact, in his last tweet, he wrote Hezbollah is pressing hard to be granted similar powers in security and foreign policy matters that Syria exercised in Lebanon for 15 years.

Will those words fuel speculation that the militant group had something to do with this assassination?

LABOTT: Well, certainly his supporters say that Hezbollah was responsible, although Hezbollah has said that it isn't. There have been a lot of politically motivated assassinations of anti-Hezbollah, anti-Syrian politicians, journalists.

We're coming on the trial of some Hezbollah militants that are accused of being in The Hague, accused of killing Rafic Hariri. So, this just fuels that kind of speculation.

JOHNS: And what kind of impact could this murder have on the crisis in Syria?

LABOTT: Well, the conflict in Syria has really polarized Lebanese. You have Hezbollah forces that are Shia, that are fighting on behalf of Assad, that are fighting on behalf of Assad, who's an Alawite. And then you have a lot of Sunnis in the country that are supporting the people, the protesters on the street. So, there has always been this concern that Lebanon was really going to pay a major price for the conflict in Syria. Now, you see some of that spill over. This kind of thing is likely to continue and it's really a sad situation. It's only likely to get worse. And there's a big fear that Lebanon will be plunged back into civil war along with the Syrian people.

JOHNS: Elise Labott, thanks so much for that.

Coming up next, over a million Americans will stop getting a paycheck tomorrow. Why some lawmakers are saying that could be a good thing.

Plus, our panel's picks for political winners and losers this year. And they're watching 2014. Stay with us.

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