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Legal View with Ashleigh Banfield

V.A. Changed Death Records; Fireworks in Congress About IRS Missing E-Mails; Kerry Meets With Leaders in Northern Iraq; Court Orders Release of White House Memo Justifying Drone Strikes on American Citizens

Aired June 24, 2014 - 12:00   ET

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


MICHAELA PEREIRA, CNN ANCHOR: And then he gives them back to mom and dad, who then can say, my baby was held -

JOHN BERMAN, CNN ANCHOR: But that'd be weird if he tried to change -

PEREIRA: Well, that's true. Thanks for making that awkward.

Thanks for joining us AT THIS HOUR. You're amazing.

BERMAN: "Legal View" with Ashleigh Banfield starts now.

ASHLEIGH BANFIELD, CNN ANCHOR: The V.A. scandal suddenly sinking to a whole new low. You thought that the lies about the waiting list were bad. Wait until you hear what a new whistleblower is saying was happening after people actually died. And this, by the way, was not years ago. We're now talking just weeks ago.

Also this hour, the secret memo revealed. How the government made its case for executing an American terrorist overseas. No court. No judge. No jury. Just one very deadly drone strike. All may be fair during love and war, but is this kind of war legal?

And, if you are looking for ways to support jihadist murderers in Iraq, hey, just order yourself a T-shirt. How about the hoodie? ISIS militants making a fashion statement to further their bloody cause. No joke.

Hello, everyone. I'm Ashleigh Banfield. It is Tuesday, June the 24th. And welcome to LEGAL VIEW.

Just when it seemed the Veterans Affairs scandal couldn't get any worse, CNN has uncovered yet another scandal at this V.A. medical center in Phoenix. And this time, administrators are accused of trying to hide just how many veterans died while waiting for medical care there. A scheduling clerk for the medical center is speaking exclusively to CNN's Drew Griffin about how someone was changing computer records to make it look like dead patients were still alive.

(BEGIN VIDEOTAPE) DREW GRIFFIN, CNN SENIOR INVESTIGATIVE CORRESPONDENT (voice-over): Pauline Dewenter, a scheduling clerk at the Phoenix V.A., is coming forward because she believes she knows something that is frankly unthinkable. She says someone now is trying to hide the number of U.S. veterans who died here waiting for care. In seven cases so far, where she has determined a veteran on a waiting list was, in fact, deceased, she says someone above her has changed the record back. The veteran suddenly listed as alive.

GRIFFIN (on camera): Somebody is going on that electronic weight list and where people are identified as being dead, somebody is changing that and saying, no they're not dead?

PAULINE DEWENTER, PHOENIX V.A. SCHEDULING CLERK: Correct.

GRIFFIN: To hide the fact people died on that list?

DEWENTER: That's my belief.

GRIFFIN: What would be the -- any other purpose?

DEWENTER: There wouldn't be any other purpose.

GRIFFIN (voice-over): Why? Dewenter says the numbers of dead in this V.A. wait list scandal may be even bigger than first reported. And someone, she says, is trying to cover up the record.

GRIFFIN (on camera): And that has been happening fairly recently?

DEWENTER: Yes.

GRIFFIN: That is a cover-up?

DEWENTER: Yes.

GRIFFIN: Did you feel that the investigators are on to that?

DEWENTER: Yes.

GRIFFIN: Because you told them?

DEWENTER: I have surrendered evidence, yes.

GRIFFIN (voice-over): If there ever was a doubt there was a secret waiting list at the Phoenix V.A., Dewenter says she's here to lay those doubts to rest. There simply were not enough doctors, not enough appointments to handle new patients, backlog patients and, yes, very sick patients. Dewenter, a scheduling clerk, was making life and death decisions.

DEWENTER: And that really overtook even the wait list because now I have a consult where veterans are very sick. So I have to ease up on the - on a wait list, which is almost so wrong to say, but -- and work these scheduled appointments so at least I felt the sickest of the sick were being treated.

GRIFFIN (on camera): And you're making basically those triage decisions?

DEWENTER: Yes.

(END VIDEOTAPE)

BANFIELD: Drew Griffin, the reporter who originally broke this news of the V.A. scandal, joins me live now from the CNN Center in Atlanta.

I - you know, story after story, Drew, I can't believe what I'm hearing from you. And now this after you actually broke the story. I just don't know how much worse it can get. They know what's going on and it's still going on.

GRIFFIN: Yes. And what Pauline Dewenter is explaining to us is a way to hide deaths from the V.A.'s own office of inspector general. The office of inspector general is going in to investigate the deaths, Ashleigh, to see if the wait caused those death. Well, if they're not listed as dead, they're not opening up those records. So that is what she is now blowing the whistle on, she's given that information to the investigators. Hopefully they are tracking that now.

BANFIELD: So, Drew, what about cleaning house? I mean it just seems as though we can have congressional hearings. There can be changes across the board. But what about getting rid of the people who are doing these things? Is there at least a process in place now? Is there a plan to put a process in place? Is it even happening?

GRIFFIN: You know there needs to be a secretary of Veteran Affairs. Right now there's an acting one. It doesn't seem like that acting director, Sloan Gibson, is going to get the job. He is doing what he can to immediately access or get access to the veterans who need care. He's increasing staffing, trying to get rid of the wait lists. But as far as the cleaning house that you mention, Ashleigh, that needs to come from a lot higher up the chain, given to somebody who has the authority to come and literally sweep clean this bureaucracy which has allowed this to fester, now we know for years and years.

BANFIELD: And this, again, just the Phoenix hospital. But there is just so much more to this. Drew Griffin with his work cut out for him. An excellent job, as always. Thank you, Drew.

And joining me now to talk about whether this might actually dive into the criminal realm at this point for people's roles in what's going on in the V.A. scandal, CNN commentator and attorney Mel Robbins, as well as HLN legal analyst Joey Jackson.

I know the two of you have been just sort of chewing on these new developments.

JOEY JACKSON, HLN LEGAL ANALYST: We really have.

BANFIELD: Shaking your head at the same time say, where do I even begin? And is this now - I mean we've been talking a lot about the potential for people to sue, not just to get their care but to sue for damages, imputative, et cetera.

JACKSON: Right.

MEL ROBBINS, CNN COMMENTATOR: Right.

BANFIELD: But now are we heading into the criminal avenue with what's happened?

ROBBINS: Absolutely. Absolutely. Because here you have a federal investigation with the FBI involved, Ash and Joey, that happened on June 11th. And as CNN is reporting, as we've just heard from Pauline the whistleblower, what we're finding is after the fact, the Feds are involved looking into criminal charges and now somebody is tampering with the evidence.

JACKSON: Yes, that's a problem.

ROBBINS: That's destruction of evidence. It's more than a problem, Joey.

JACKSON: Oh, yes. It absolutely is. There's - look -

BANFIELD: I mean isn't that obstruction of justice officially (ph)?

ROBBINS: Yes. Yes.

JACKSON: One hundred percent. Look, you have -- you have - absolutely. You have tampering with evidence. You have obstructing evidence. You have a conspiracy potentially because this has to emanate from somewhere. Someone has to be giving a command that, listen, we're under investigation, we have to clean house. And as we often know, sometimes the cover-up could be as horrific as the actual offense, if not worse.

ROBBINS: Right.

JACKSON: And so that becomes a problem. So from a criminal element, it will depend on what the conduct is that ultimately is discerned.

ROBBINS: Right.

JACKSON: Was there fraud? Where was there fraud? Was it at the lowest levels? Was it at the highest levels? And also, Ashleigh, as you just pointed out in your question to Mel, the potential for damages also. What happened as a result as this? Were people impacted? Were veterans affected? Did they die? Mel, you were talking about the harmless error issue where they -

ROBBINS: Right.

JACKSON: Repeatedly, you know, talked about, well, hey, you know what, we've engaged in this cover-up and this, you know, (INAUDIBLE) -

ROBBINS: Yes. Well, let's explain how this works.

JACKSON: Sure.

ROBBINS: So basically the V.A. has also been accused of having whistleblowers inside for years, Ashleigh, saying, we've got problems with waiting list, we've got problems with standards of care, we've got all kinds of problems going on. And what the V.A. has said in the face of all these claims, it's -

JACKSON: And this is horrible (ph).

ROBBINS: It's not affecting patient health care quality.

BANFIELD: You know all these shenanigans -

(CROSS TALK)

JACKSON: So it - so it doesn't matter.

ROBBINS: (INAUDIBLE) error. Show it doesn't matter. And basically the thing that we're starting to kind of peel away at and we dig deeper and deeper on this is, holy cow, somebody knew it was affecting patient care. Somebody knew profoundly and they were covering it up. And the reason why they were covering it up is because the V.A. has a system in place where you are rewarded if you have great data that says you're moving patients along and you're seeing people.

JACKSON: Exactly. So it's a disincentive actually to come forward and to say something's happening because it affects your numbers. And if it's a numbers game, because it's all about quality of care, then why would you come forward? And I think the real shame of this is that you have this medical office and they're there as an oversight entity. They're there to ensure the quality of care. But what are they doing? They're justifying this and saying, hey, wait, whistleblowers, all of these terrible things you're mentioning are happening and patients are waiting, but it doesn't affect the quality of care at all. Nonsense.

BANFIELD: Yes, well, at this point they may say that but the investigators who are just maybe perhaps starting to get at the tip of the iceberg may find a whole set of patients (ph) below (ph).

JACKSON: And the Justice Department. They're involved.

ROBBINS: Right.

BANFIELD: Right.

ROBBINS: Right.

BANFIELD: Hold that thought for a minute, because in case you missed it, that -- there was certainly some serious fireworks last night on Capitol Hill. Congressional leaders were taking V.A. officials to task for exactly what we're talking about, this incredibly troubling pattern of care at the hospitals across the country that Drew Griffin and his team and CNN first uncovered, including this latest scandal. Have a look at what happened last night.

(BEGIN VIDEO CLIP)

REP. JACKIE WALORSKI (R), INDIANA: And I just got a - I just got to note from a constituent that says that there must be some kind of a CNN program on tonight and that there's a new revelation. It says records of dead veterans were changed or physically altered, some even in recent weeks, to hide how many people died while waiting for care at the Phoenix V.A. hospital. A whistleblower told CNN in stunning revelations that point to a new cover-up in the ongoing V.A. scandal, deceased, quote/unquote, notes on files were removed to make statistics look better so veterans would not have to be counted as having died while waiting for care. And the quote is from Pauline Dewenter.

So, you've been to the Phoenix facility four times. Are you aware of this new revelation?

DR. THOMAS LYNCH, DEPUTY UNDERSECRETARY OF VETERANS AFFAIRS: I'm not aware of the revelation. I am aware that the OIG is looking carefully at all of the deaths that occurred. I do not know of any attempts to hide deaths, congresswoman.

WALORSKI: Under all the scrutiny, all the lights, all the spirit of full disclosure, Phoenix is still doing this kind of stuff, and you guys have had them under a microscope and you've physically been there four times and this is new?

LYNCH: Congresswoman, I don't know the details of the accusation.

(END VIDEO CLIP)

BANFIELD: Well, at least it's not happening in secret anymore. Continuing that story.

And also, how do thousands of e-mails at the center of an IRS investigation just go missing when you and I -- well, they never go missing, do they? This is the focus of some fiery questioning on Capitol Hill too.

(BEGIN VIDEO CLIP)

REP. DARRELL ISSA, (R), CALIFORNIA: Question.

JOHN KOSKINEN, IRS COMMISSIONER: And I answered it. I did not say I would provide you e-mails that disappeared. If you have a magical way for me to do that, I'd be happy to know about it.

In fact, we are going to provide you 24,000 e-mails from the time --

ISSA: My time is expired and I've lost my patience with you.

(END VIDEO CLIP)

BANFIELD: Well, that's something. We're going to take you live to Washington for more on this growing impatience in the IRS scandal. That's coming up next.

(COMMERCIAL BREAK)

BANFIELD: It was very busy last night on Capitol Hill. Lots of hellfire missiles firing all over the place. And if last night's IRS hearing wasn't contentious enough, more fireworks today on Capitol Hill. You might even call it round two. In a rare encounter last night, in one corner, the Oversight Committee chairman. And in the other corner, the IRS commissioner. Ready. House GOP members are demanding to know what happened to tens of thousands of missing e- mails. E-mails dating back to 2009. And why the hard drives were destroyed.

(BEGIN VIDEO CLIP)

REP. DARRELL ISSA (R), OVERSIGHT COMMITTEE CHAIRMAN: Did you cause someone to find out at the White House, at Treasury or your IG?

JOHN KOSKINEN, IRS COMMISSIONER:: I did not. If you have any evidence of that, I'd be happy to see it.

ISSA: I asked a question.

KOSKINEN: And I answered it.

ISSA: You did not cause anyone to find out?

KOSKINEN: I absolutely didn't.

ISSA: So you --

(END VIDEO CLIP)

BANFIELD: Our Athena Jones is in Washington. She's got the fun assignment of covering all of these fireworks.

What is the story about these e-mails and them just disappearing? None of us gets to say "they just don't exist anymore." There's always some kind of trail. What's going on at the IRS?

ATHENA JONES, CNN CORRESPONDENT: That's what a lot of Republicans are saying on this committee and elsewhere. They're saying in this day and age, how can you lose all these e-mails just because of some hard drive crash?

But that is what the IRS reported to Congress some time ago, actually just earlier this month. They revealed to Congress that in all of their searches for all of the e-mails of this IRS administrator, Lois Lerner, who's at the center of the controversy over targeting conservative groups during the 2012 election, they discovered a whole bunch of e-mails from January 2009 to April 2011 -- hard to even say just how many thousands of e-mails are part of that group -- went missing because there was a hard drive crash back in 2011.

So the IRS has said, well, Lois learner did everything she could to try to get those e-mails recovered but they weren't recoverable. That's what's going on right now. That's why we've had some really contentious fireworks last night, and we're having another hearing today, part two of the hearing of the House oversight committee, calling the IRS obstructionist, Lois Lerner's missing e-mails.

Republicans are trying to get these two officials from the National Archives to do a little bit of explaining on and also asking the White House counsel office how all of this works -- what are the rules for retaining documentation, retaining recordings and e-mails?

And so they have called this lawyer who now works in the White House counsel's office but used to work with the IRS during this period of this congressional inquiry, and they're really trying to drill down and get some answers.

BANFIELD: That would be nice. It's either extremely convenient that the timing was such or they're on those old Macintosh computers and there's just not hard drive strong enough.

Athena Jones, thank you for that. Continue to update us when we find some answers, if we ever do.

Do the ends justify the means? The federal government is laying out its legal arguments for using a military drone to kill this man, a United States citizen, but a guy accused of being an al Qaeda leader too.

So do the arguments that the government made hold water? They've been secret for a long time and they're secret no more. Are they a slippery slide down a constitutional slope? You're going to get the LEGAL VIEW, straight ahead.

(COMMERCIAL BREAK)

BANFIELD: Iraq's largest oil refinery is the country's newest battleground. This morning, Iraq's state-run news agency said security forces still control it and the militant leader who led the attack on it has been killed.

Iraq also says air strikes have taken out 19 ISIS fighters. CNN cannot independently confirm either of those claims. We do know this. Secretary of State Kerry is in northern Iraq. He's meeting with Kurdish and Sunni Arab leaders, even as cities across that country crumble under ISIS control.

Now, in the past, Secretary Kerry has told CNN that Iraq is falling apart. It was a little different today when he sat down, one on one, with our Jim Sciutto. He said there is still a way out.

(BEGIN VIDEO CLIP)

JOHN KERRY, SECRETARY OF STATE: We have to let that organic process work out a little bit. Words are cheap.

I fully -- you know, I'm not taking anything I hear to the bank and saying, wow, it's going to be solved, but I'm hearing things that indicate to me that if they follow through on the things they're saying, there's a capacity to have a new government that could be a unity government that could reflect a greater capacity for success.

(END VIDEO CLIP)

BANFIELD: Militants still control much of northern Iraq. Their march on Baghdad seems to have somewhat stalled as the Iraqi army, we're told, is regrouping, but that's a big effort.

They are not being helped by U.S. drone strikes, as we're told, though. The Pentagon is denying that it is targeting ISIS fighters in Iraq, as some reports have suggested.

On the subject of those drones -- this is a good one -- a secret Obama administration memo making the case for drone strike execution on an American terrorist living overseas is no longer a secret today. The government lost a court battle to keep it under wraps. And our legal team has a lot to say about this.

You will probably remember this guy. He's the al Qaeda leader Anwar al-Awlaki. He was born in New Mexico, but he was killed not in the United States, he was killed in Yemen by a drone strike. That happened in 2011.

He just so happened to be an inspirational figure to terrorists worldwide, and his death has opened the debate on when or if the United States government has the right to use drones to kill an American citizen, even one as awful as al-Awlaki.

I want to talk about it with three people who have a very unique perspective on this issue. CNN senior analyst Jeffrey Toobin knows a lot about constitutional law; former Navy SEAL and Iraq and Afghanistan combat veteran Chris Heben, who knows a lot about these kinds of attacks; and also CNN commentator, legal analyst, Mel Robbins, a lawyer herself.

Jeff, I'm going to start with you. This is a big memo, and you have read it thoroughly. It doesn't seem to be the legalese that I expected would come out to make the case for a summary execution of an American citizen who, up until now, I kind of thought enjoyed constitutional protections.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I actually thought it was a pretty straightforward memo.

The heart of the memo is, stripped of its legalese, is that we have authorized -- Congress has authorized the use of military force to fight al Qaeda all through the Middle East. You don't get immunity as an American citizen if you join up with our enemy.

He was a military figure on the al-Qaeda side, so he was a legitimate target. That's the core of the argument in the memo.

BANFIELD: Chris, I don't know how much you're allowed to say, given the years that you spent, doing the kind of work that you Navy SEALs do, SEAL Team 8 member. And I won't press you for those kinds of details.

But, effectively, there are people watching right now who say who the hell cares, if there are bad guys like that, this is a cheap and efficient way to get rid of them instead of sending battalions and gear and taking on all sorts of losses in blood. But does it feel like that's the right thing to do? CHRIS HEBEN, FORMER NAVY SEAL: I would agree with Jeff, 100 percent.

This guy was responsible for motivating so many people to do ill will against Americans, not just soldiers but citizens all over the Middle Eastern region.

Now, I say willingly, this guy forfeited his U.S. citizenship by his very actions of aligning himself with al-Qaeda and expressing that openly in a public format. He basically revoked his own right to U.S. citizenship. And I think once that happened, let's push the button and smoke this dude. And that's what happened. And I agree with that, 100 percent.

BANFIELD: That's how Navy SEALs talk, let's push the button and smoke this dude.

Look, it's easy to say that, and I think a lot of people, they're maybe no -- no memorial events happening perhaps in America for this guy.

But at the same time, aren't we a higher order, Mel? The fact that we govern by rule of law, we have a constitution that has survived centuries, and then this happens. And it's sort of just this whole new notion of what war is. I mean, we're not technically at war.

(CROSSTALK)

MEL ROBBINS, CNN COMMENTATOR: -- will agree that the battlefield has expanded and it's not the traditional battlefield when you're fighting al-Qaeda.

Look, I say crop dust the place most the time when I'm sitting in my living room. It's not a very legal or politically correct thing to say when you're talking about people that want to kill us.

However, what this comes down to is whether or not American citizens are entitled due process. And the crux of this is, does due process amount to the president, having meetings with military advisers a year before he's going to kill somebody that has no oversight by anybody else?

And what the memo says is, yep, we're going to just kind of fluff this up to give him that kind of authority and to call that enough due process. I personally am very uncomfortable with it, particularly when Holder doubles down and says he'd do the same thing right here on American soil.

BANFIELD: This whole thing about due process and judicial process, I'm not so sure I understand the difference anymore.

So, Jeff, I'm going to read something to you. I know you know it by rote, but I'm going to read it anyway, and it is the authorization for use of military force. I think many people became familiar with it after 9/11, and it effectively launched the grounds by which we could go overseas and do what we needed to do.

TOOBIN: In Iraq and Afghanistan, both. BANFIELD: Correct. Correct, but there's a key word. And I want us all to focus on it while you answer this question.

"That the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11th, 2001, or harbored such organizations or persons, in order to prevent any future acts of any terrorism against the United States by such nations, organizations, or persons."

Nowhere in that do I see offspring of al-Qaeda who planned September 11th attacks, offspring who al Qaeda hates and disavows, so I'm really not sure how that gets into the argument today when you're talking about these other organizations. They're all splinter groups.

TOOBIN: Well, the -- these are not defined in normal -- in simple terms, that it's a -- the persons who are working in this area are -- you know, are open targets, and the fact that, you know, the organizations are not organized with a flag or in traditional military organizations. It's, you know, that's their problem. It's not the problem of the Americans.

BANFIELD: I want to do a quick correction too. At the beginning of the segment, I said that Secretary Kerry had said Iraq is falling apart. But, in fact, all around this time, CNN is conducting multiple interviews, and he was speaking with Jim Sciutto, but our Christiane Amanpour was speaking with the Kurdish president, Masoud Barzani, who said that Iraq is falling apart.

Nonetheless, there are many people within this process saying Iraq is falling apart, and ultimately, whether they're going to be any kind of agreement on what happens Iraq, which is clearly what we're talking about now, but there is this notion that potentially drone strikes could start happening there as well.

This conversation isn't going to end. My thanks to all three of you. Do appreciate you -- I'm surprised not one of you was going to take my side on this. Not one of you was going to say, wait a second, where's the judge?

ROBBINS: I did. I flat-out did.

BANFIELD: You said --

ROBBINS: If Chris is making the decisions in the field, I'm comfortable with that, but there's something that feels inappropriate about it being removed, the president having secret meetings that the "New York Times" is present to, but judges aren't.