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LEGAL VIEW WITH ASHLEIGH BANFIELD

Ex-Captive Being Treated & Debriefed; Bergdahl Case Took A Deadly Toll; Bergdahl Released; Bergdahl -- Hero or Deserter; Did Obama Break Law With Prisoner Swap?

Aired June 2, 2014 - 12:00   ET

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


ASHLEIGH BANFIELD, CNN ANCHOR: Five long years away from his family, friends and fellow comrades. And now it is a long road ahead to recovery and reintegration for American soldier Bowe Bergdahl as he begins a new life away from his captors.

And as many celebrity his release, some of the men who served with him on the battlefield aren't among those feeling so jubilant today. Why they say Bergdahl is no hero.

And pro golfer Phil Mickelson catches the eye of the FBI, and it's all over allegations of insider trading.

Hello, everyone, I'm Ashleigh Banfield. It's Monday, June 2nd, and welcome to LEGAL VIEW.

So now one very important bit of unfinished business from the war in Afghanistan is now finished. But how it was finished and how it came about in the first place and the potential for more trouble to come are the questions of the hour. And we'll look at them all. We'll get a good, hard look at them at all, beginning at the military hospital in Germany, where United States Army Sergeant Bowe Bergdahl is being treated, fed and debriefed after almost five years in the hands of the Taliban.

As you may be aware, the only U.S. service member held prisoner in the Afghan War was released on Saturday in a very controversial swap for five Taliban prisoners being held at Guantanamo Bay in Cuba. Those men returned to a hero's welcome today in Qatar.

I want to get straight to the Landstuhl Regional Medical Center and CNN's senior international correspondent Nic Robertson.

Nic, there is dribs and drabs of information that's coming in about Bergdahl's condition, his trust of those he's now around, and how he's doing mentally and physically. What can you add to this?

NIC ROBERTSON, CNN SENIOR INTERNATIONAL CORRESPONDENT: Yes. Well, we've just learned in the last half hour that he is in a stable condition. Those are really the first details we've had from medical officials about how he is doing. We're told that he is being - he is receiving treatment for conditions that require hospitalization, with particular attention to his dietary and nutritional needs. All this because he's been in captivity for five years. So it's clear that he hasn't been eating well. Not clear how much he is physically suffering because of that.

The debriefing, the information that might be useful on the battlefield today, that's part of the reintegration process that's happening here to help him psychologically, to help him physically. We hear that all that is underway. But, of course, today in Afghanistan, a service member -- forces there was killed on the battlefield by the Taliban, an indication of just how much any information he may have that's time sensitive about the Taliban could be useful to U.S. forces there. That sort of information also part of the conversations, we understand, that he's having, Ashleigh.

BANFIELD: But, Nic, I mean so many people want to know why is he not speaking to his own family yet? I mean we've had two days now and they haven't had any conversations with him in person.

ROBERTSON: Yes, sure. I mean we've heard reports that -- accounts even that he has really sort of forgotten to speak English. Even if you listen to one of those proof of life videos that he made when he was in the hands of the Taliban several years ago, you could hear the accent in his voice, it was changing, changing away from his normal accent to something quite strange and weird. So there's a possibility there that there is a difficulty communicating. Of course, you know, conditions stable, but how much is his dietary situation affecting his ability and strength to communicate and, of course, what do the doctors want to focus on?

These are professionals who have done this sort of thing before. The sort of reintegration, if you will. And there's -- very likely they're following the procedures they would always follow. And perhaps that does precluded immediately putting him in touch with his family.

Look, his father said he's like a deep diver, he's gone down so deep, if you bring him up too quickly, that could really damage him and hurt him. So the family seems to have that kind of understanding about his situation, Ashleigh.

BANFIELD: It's remarkable. Nic Robertson reporting live for us from Landstuhl. Thank you for that.

And referring to then Private Bowe Bergdahl, a senior U.S. defense official tells CNN, and I'm going to quote, "we do not have any understanding of why he left his camp the night he disappeared in June 2009." Sadly, we do know all too clearly the monumental cost of trying to find Bowe Bergdahl.

From June of that September, that year, six U.S. soldiers were killed in IED attacks or firefights while directly involved in searching for Bowe Bergdahl, who some say had actually abandoned his post. A Facebook page entitled "Bowe Bergdahl is not a hero" is filled with resentful claims that Bergdahl betrayed both his comrades and his duty. CNN's Barbara Starr joins me now live from the Pentagon.

Obviously, this is a very significant part of this story, although so far, Barbara, it seems a very unclear part of this story. We do know that those who are very close to Bergdahl, members of his platoon, have been very critical, but what is the government saying? BARBARA STARR, CNN PENTAGON CORRESPONDENT: Well, Ashleigh, here at the Pentagon what they are saying is they need to hear from Bergdahl himself, in his own words, under no situation of duress, what exactly happened. How is it that he came that night not to be on this base? And let's -- when we talk about a base, we're not talking about a big military base. We're talking about a small enclave of troops in a very forward, remote location with very little protection in eastern Afghanistan. How is it that night that he came not to be where he was supposed to be.

Until they hear from Bergdahl, they say, they don't have any absolute, clear understanding of what happened. Everyone is very aware of these social media accounts. Everyone is very aware of what people who are saying, other troops in the army, the troops in his own unit. But, really, at this point, they say they want to hear from him. He has not been classified as a deserter at any point in these intervening five years. And, in fact, he was promoted on schedule and is scheduled at this point for another promotion in the next couple of weeks. But not classified at this point as a deserter. The Army says they want to hear from him.

BANFIELD: So - and I can imagine that as soon as they are able to, if that's the condition he's in, that he can't even speak of these things yet, that they will.

Big question for you, though, Barbara. In the WikiLeaks presentation of the millions of documents, among the documents that were made public, classified documents, were radio transmissions among Taliban members referring to Bowe Bergdahl and his capture. I can't read them verbatim because the language is pretty crude, but I'm just going to do my best here. Taliban member number one, we were attacking the post while he was sitting and taking a blank.

He had no gun with him. He was not even cleaned up yet. These are the direct words from Taliban members to each other that we were never supposed to hear. So it's not as though the government released these to try to, you know, make this an easier story to digest. But how does that square with what his platoon members are saying?

STARR: Well, let's call it a -- perhaps he was at a makeshift latrine in the field. That is what this cable seems to be suggesting. And military officials are well aware of it. They want to talk to Bergdahl about it.

You know, the problem here is that so far he hasn't told his side of the story. Other people are saying what they believe to be true. Clearly, he was not at his station. Clearly, he was not there for some reason. So here are the possibilities. Did he walk away of his own free will? Did he become perhaps distraught, not able to continue with his job? There have been some social media accounts, unverified, that suggest that. Was he at a makeshift latrine and did he get kidnapped out of the field and nobody knew it at the time? All of these things are sort of out there. And I think it's the major reason that the military says, look, number one, we had an obligation to get an American soldier back home. That that is a sacred obligation. Two, they say, there will be time for them to question him and determine the facts and then determine the next steps.

BANFIELD: And I just want to remind people of your great reporting. You had a source, a senior U.S. defense official, that said any legal issues will be addressed now that he is home, effectively home, being at Landstuhl.

STARR: Exactly right.

BANFIELD: Barbara Starr, thank you. Thank you for that.

OK. And let's be really clear. Let's call a spade a spade here. No one knows the circumstance right now for certain. It is clear that Sergeant Bergdahl's release does raise a lot of the murky issues. Is he a hero or did he walk away from his fellow troops as some are alleging? Did he break the law? And while we're at it, did the White House break the law in transferring those five Gitmo prisoners before they told Congress that was the plan? You're going to get the legal view on both of those issues coming up.

(COMMERCIAL BREAK)

BANFIELD: The course of Bowe Bergdahl's reintegration to life in America will been decided in part by the circumstances of his capture in Afghanistan. As we've reported, many G.I.s who served with him say that he wandered away from his post. Though that has not been proven and the Pentagon says it does not know at this early stage but it wants to hear from him.

Joining me with special insights on the legal angles on this are CNN's senior legal analyst Jeffrey Toobin, and from Houston, retired U.S. Army lieutenant colonel, former military lawyer and now professor at South Texas College of Law, Geoffrey Corn.

Colonel, I'd like to begin with you, if I may. I just want to get your feelings about what you've been seeing and hearing thus far as this story continues to develop on the circumstances that Bowe Bergdahl right now finds himself in.

PROF. GEOFFREY CORN, SOUTH TEXAS COLLEGE OF LAW: Well, I think that it's very clear that in the reintegration program there's going to be a significant effort to debrief him and find out exactly what happens. Because if some of these accusations have merit, he potentially committed some very serious violations of the uniform code of military justice and arguably violations that led to the loss of life of members his of own unit in their efforts to recover him.

So there's no doubt in my mind that there's going to be a very deliberate and careful effort to develop the facts, although that also raises complicating issues related to whether or not he is entitled to a Miranda-type warning under the military code, which might lead him to say he doesn't want to talk about it at all.

BANFIELD: And if that is the issue and if he is not talking about it at all, I'm only guessing here, professor, that evidence is critical in something of this magnitude. It is pretty hard to gather evidence in enemy territory where effectively we couldn't even get to the site of the crime so to speak.

CORN: There's no question that I think without some corroborations these accusations, it would be difficult to have the type of information that a commander would want in front of him or her before they made a decision to launch a criminal investigation or prepare a charge for court-martial.

Because you're dealing with the fog of war, and exactly what happened is not going to be ascertained by interviewing Taliban operatives.

BANFIELD: And, Jeffrey Toobin, if you could weigh in on this, just with regard to those who have taken vociferously online to decry Bowe Bergdahl, these are members of his platoon. These are people who were very close to Bergdahl, as well.

And they're also people who were asked by the government to sign a nondisclosure agreement about what they know, and yet they decided to flout that. How critical is their account, given the fact that not one of them, not one person, has said, I saw it happen? I saw him walk away? No one can say that.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Yeah, I think with all due respect to Facebook, this has to be done in an orderly way by the JAG Corps, by military investigators to determine what happened here.

All of us who have spent some time in the public eye, we know that people go on the Internet and say all sorts of things. Some of them are smart. Some of them are dumb. That's not evidence. What's evidence is how the military studies this situation and figures out what happened.

And, you know, if I can just add to what Colonel Corn said, not only is it difficult to get witnesses, this is all five years ago. So it's difficult enough to get witnesses today about an event that happened yesterday. To try to determine what happened five years ago is immeasurably more difficult.

BANFIELD: Colonel Corn, I just want to ask you, and this is more political than it is procedural, but I know you understand both intimately, given your background, and that is this. There were lives lost looking for Bowe Bergdahl. There were live lost in the re- allotment of resources towards finding Bowe Bergdahl.

And yet we have an extraordinary measure that was undertaken by the White House and this administration to bring Bowe Bergdahl back, at great political risk to this White House. Do you foresee any circumstance that the White House doesn't already know the score?

CORN: No, I don't think that anybody in a position of authority knows the exact details of how this soldier came into the custody of the Taliban.

What they did know is that he was in fact in the custody of the enemy, and as a soldier, his commanders, including the commander-in-chief, had an obligation to do everything they could to recover him. This is what we do. We did it with Jessica Lynch in Iraq when the special operations forces conducted the raid of the hospital where she was being held as a prisoner of war.

And Jeffrey Toobin is right. The process needs to run its course.

Now, when you recover an individual who's been held in enemy custody, there has to be an extensive, debriefing process, and it is actually in the interest of that process that we don't suspect him of a crime at this point, because the minute they really start to suspect him of having committed an offense, then he has a right to a warning under what's called Article 31 of the Uniformed Code of Military Justice, which is a Miranda warning.

Right now, there interest is to find out what happened and to gather as much intelligence as they can in relation to this incident, and I think until they have all that information, they won't even know the exact details of what happened.

BANFIELD: Of course the issue of him just speaking, being able to speak, his parents alluded to the notion he may not be able to, whether it's physically speak or remember how to speak, we're not sure which, but there's something that's afoot there as well.

Both of you, I have more of this conversation that I'd love to dig in with you. Jeffrey Toobin and Colonel Geoffrey Corn, stick around, because there's this other legal discussion surrounding this entire story today, and that is the big one from the White House.

Did the Obama administration break the law when it decided to release those five Guantanamo Bay detainees in exchange for the child of those two people flanking the president?

To get Bowe Bergdahl back, was the law broken? That's next.

(COMMERCIAL BREAK)

BANFIELD: When something big happens, like the release of Sergeant Bowe Bergdahl in exchange for five Taliban members, Congress usually knows about it.

But some members said they did not know what was happening, and there is a law that requires the Obama administration to notify Congress 30 days before detainees are released from Guantanamo Bay.

But that didn't quite happen. National security adviser Susan Rice told CNN's "STATE OF THE UNION" with Candy Crowley Congress was briefed in the past about the potential of something like this to happen. But when they sealed the deal, they didn't adhere to the 30- day requirement because it could have meant the opportunity to get Bergdahl would have been lost.

(BEGIN VIDEO CLIP)

CANDY CROWLEY, CNN ANCHOR, "STATE OF THE UNION": So there was a conscience decision to break the law as you know it dealing with the detainees?

SUSAN RICE, NATIONAL SECURITY ADVISER: Candy, no, as I said earlier, the Department of Defense consulted with the department of justice and it is our view that it is necessary to do this in order to bring Bergdahl back safely.

(END VIDEO CLIP)

BANFIELD: So there are some serious nuances here and the best people to handle that, CNN's senior legal analyst Jeffrey Toobin is back with me and former JAG attorney and Professor Jeffrey Corn, back as well.

Professor, let's be clear, congress was notified after the fact. Certainly not before this transfer. But there is some language that the president released and the White House released and that is that these were exigent circumstances. Does that change the dynamic of this argument?

CORN: Well, I think it does change the dynamic. These are decisions that General Washington made. Anybody watching the new television program "Turn" would see this.

And the Constitution vests the president with the exclusive authority as commander-in-chief. A law that intrudes upon that authority, that detracts from his ability to perform his command function, is a law that candidly he shouldn't comply with.

And so I think that what you see here is him emphasizing this was not the type of transfer contemplated by the notification provision of the national defense authorization act. This was a operational, military operational, prisoner swap and fell within his constitutional authority, and I think he was on solid constitutional grounds in doing it without providing any prior notice to Congress.

BANFIELD: Well, what's sort of fascinating about this, it is a bit wonky, so bear with me, folks.

This current law was just signed prior to the new law, and the president did not sign it without some frustration and actually issued a signing statement.

Specifically now, in retrospect, it seems specifically related to perhaps the Bergdahl negotiations, which have been ongoing for so long I'm just going to summarize, saying the executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.

So, Jeffrey Toobin, that's a very nice signing statement. It makes for very good reading. The president signed the law, and the law is the law. Where am I missing something?

TOOBIN: I think he broke the law. I don't think there's really any doubt about that.

Now, it may be that he was justified. It may be that the law is in fact unconstitutional. But the law says what it says. It's supposed to be a 30-day notice. He didn't give the 30-day notice, and he ordered the release of the prisoners.

I think, as with most situations like this, it is somewhat a legal issue, but it's mostly a political issue. There's not going to be any lawsuit about this. Congress can't sue the president for violating this aspect of the law. Congress will take action. They will hold hearings. They will express their outrage. That's not trivial. But did President Obama break the law here? I think it's pretty clear that he did.

BANFIELD: There's certainly a lot more conversation that needs to be had, especially if and when we do get some information straight from Bowe Bergdahl himself.

Jeffrey Toobin and Geoffrey Corn, excellent conversation, thank you to both of you.

So there is one thing that we need to make real clear. Regardless of what's happening in Washington, regardless of former platoon mates and what they have to say, there are two parents who are beyond, beyond excited to eventually get the chance to see their son again.

And while the questions are all brewing, in Idaho, people are just downright celebrating, because Sergeant Bergdahl's hometown is covered in yellow balloons and ribbons and flags. The excitement from the people who know the freed soldier and his family -- regardless of the circumstance, he's free at last -- we're going to hear from them, next.

(COMMERCIAL BREAK)