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Legal View with Ashleigh Banfield

Savagery is Strategy for ISIS President to Address Nation on Journalist Beheading by ISIS; AG Holder to Visit Ferguson

Aired August 20, 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: We're following two breaking stories.

First, Attorney General Eric Holder has arrived in Ferguson, Missouri. Tensions remain high, but protests over the police shooting of Michael Brown have been mostly peaceful.

And, ISIS releases disturbing video of kidnapped American journalist James Foley. The terrorists executed Foley, they say in retaliation for U.S. airstrikes in Iraq. And now ISIS is threatening to kill yet another American prisoner if the strikes don't stop. The president will be making a live statement about this very subject in just a few moments.

Hello, everyone, I'm Ashleigh Banfield.

What the world considers savagery, the jihadi radicals known as ISIS or Islamic State considers strategy. A cruel and chilling message delivered in the cruelest way possible. Just moments ago, U.S. intelligence authenticated that horrific video clip in which kidnapped American journalist James Foley is beheaded by that man, a masked member of ISIS, a militant who seems to have a British accent. CNN will not air this video, but we've made the decision to play one small bit of sound on this video, which is meant to be disturbing and it is.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: So any attempt by you, Obama, to deny the Muslims their rights of living in safety under the Islamic Caliphate will result in the bloodshed of your people.

(END VIDEO CLIP)

BANFIELD: Clearly a British accent detectible in that clip.

James Foley speaks on that video as well. Words that clearly do not appear to be his own, declaring his, quote, "death certificate" was signed when the U.S. began attacking ISIS fighters in Iraq.

We've also just learned that President Obama will speak about Foley's death and the ISIS threats coming up later on in this hour, just over 40 minutes from now.

CNN White House correspondent Michelle Kosinski is at the president's vacation retreat on Martha's Vineyard and she joins me on the telephone right now about this very subject. This is all just breaking, Michelle, that the president is going to address this topic. Do we know what he's going to say?

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT (via telephone): No, but we've been expecting this. I mean we have heard from the president several times over the last few days about the situation in Iraq and the U.S. gains via those airstrikes. So now, obviously, a much different situation. I think what will be interesting, we know now that he will talk about James Foley, but curious to know if it's going to be sort of a statement just based on that or if he's also going to address the other American journalists in ISIS hands.

I mean we know that the administration wants to be careful about this. It's not as if they want to address or necessarily semi negotiate or make a statement to ISIS via the U.S. media. But they probably want to send a message. So it remains to be seen exactly, you know, kind of what balance they'll strike there if they say anything at all about Steven Sotloff and the situation there.

We expect it to be measured as the national security team statements have been. I mean the NSC just - the National Security Council just made another statement this morning saying that they have authenticated the video. That they do believe it shows those two American journalists in ISIS hands. And, you know, they've basically been telling us, well, as we have information, we'll tell you. Kind of -- they're basically saying, don't ask us, we'll tell you something when we're ready.

So now we'll hear directly from the president. Hopefully they'll also take some questions. But not necessarily. I mean the situation is so sensitive and so difficult such that it might be something that they really don't want to go too far in the statement that the president makes, Ashleigh.

BANFIELD: And to that sensitivity and difficulty, Michelle, the White House, we're told, to "The Washington Post," confirmed that the State Department and the Defense Defendant reached out to various social media sites to make the request to bring that video and some of those images down. Can you talk to that a little?

KOSINSKI: Yes. I mean they haven't given us any detail on that as of now. We know that they've - they've said -- the National Security Council has said that they're appalled by this. I mean at the time they hadn't authenticated it, but they said that this obviously shows the brutal murder of an innocent American journalist. So in cases like this, spreading around what could be seen as ISIS propaganda doesn't help the situation at all. And sometimes they spark other similar crimes. So it seems likely that that's something that they wanted removed.

BANFIELD: And then just, if you could speak to the way the president was briefed about what happened to James Foley. Just give me some color on that if you will. How was it he found out?

KOSINSKI: We don't know specifically. I mean they're telling us only that he has been briefed. That the briefings were coming. And now he will speak. I mean we sort of expected something from the president as early as last night. I mean he just arrived back on Martha's Vineyard yesterday and now we know that we will hear from him within the hour. So more detail on that. We'll probably get more on that throughout the day.

It's interesting, too, that we've been hearing really from the British government as well that David Cameron, the prime minister, cut his vacation off, really, came back, and that British counterterrorism forces have been working to try to figure out if they can find anything on the identity of the ISIS terrorist in the video and, you know, whether it matches up with anything. So I think we're also going to be curious to know how exactly the U.S. will be working with the British on that. And the U.S. and the British obviously collaborate on all kinds of counterterror measures, so that might be something else we'll hear about soon.

BANFIELD: OK, Michelle Kosinski reporting for us from -- on Martha's Vineyard, where the president has been on vacation with his family.

CNN's Nick Paton Walsh joins me live from the Iraqi city of Irbil, that is a city that President Obama has vowed to defend. It's also a city, really, in the crux of some of these areas where these airstrikes have actually been happening.

Nick, speak to me a little bit, if you will, about the reaction there to this latest act of depravity by ISIS.

NICK PATON WALSH, CNN SENIOR INTERNATIONAL CORRESPONDENT: Well, it fits into a broader recognition by people here in the Kurdish (INAUDIBLE) areas of Iraq of the real depravity of ISIS. In many ways, though, they've had their own tragedies to be digesting in the past week, massacres of villagers here. But the reaction to that video in which James Foley is so brutally shown executed has been more, I think, state side, more in the west. His mother saying in a statement that she'd never been so proud than she's now of her son and reminding people that he was not an instrument or executor, a decider in U.S. foreign policy, as that execution video seem to sort of somehow suggest. He was simply a journalist.

In fact a journalist who put himself at considerable risk to report on the plight of other Muslims in Syria initially. A very complicated video for many people to watch. Deeply shock. And, of course, the other American journalist threatened at the end, now leaving many concerned that we may see more of this potentially in the weeks ahead.

BANFIELD: And I'm curious about the effect it might have on other journalists like yourself. I mean there have been so many CNN journalists, you included, who have crossed into Syrian territory. You're now in Iraqi territory. ISIS is in each and every of these places. Is it having an effect on journalists in terms of whether they're continuing their assignments?

WALSH: Well, obviously, he's not the only journalist who's been killed in Syria. There are many other Americans held now. Some journalists are not. I mean other journalists held. It's been a very complicated conflict to cover, Syria, simply because of the risk -- the risk, of course, of the firepower being used there. But most of all, recently, the risk of abduction, particularly by ISIS. Their presence rendering so many areas in Syria no-go zones.

Same now in northern Iraq, the areas they've swept into recently. I think the fear now, of course, is that now James Foley it appears has been used as sort of leverage in many ways, sick leverage, by ISIS in what seems now to be their new front against the United States. The concern is what many here have feared for a while the eventually Washington would realize ISIS had to be targeted thoroughly. We may hear more of that from Barack Obama (INAUDIBLE). We're also hearing from the State Department how they think the leadership of ISIS should be attacked (ph). What looks like a more intensive U.S. campaign against ISIS is eminent, if not already on the way. And the fear, of course, is the Americans ISIS have been holding for some time may have been kept in leverage for this particular moment and we may possibly see more horrifying scenes like this maybe in the weeks ahead.

BANFIELD: Nick Paton Walsh reporting live for us in Irbil, Iraq. Please, you and your crew, stay safe as you continue this very brave assignment.

The former deputy director of the CIA says James Foley's murder is more than a message and it's more than a threat. I want you to hear what Mike Morell told CBS this morning.

(BEGIN VIDEO CLIP)

MIKE MORELL, FORMER DEPUTY CIA DIRECTOR: The definition of terrorism, Nora (ph), is political violence, a violence for political effect. So we should mark this date down because this is ISIS' first terror attack against the United States.

(END VIDEO CLIP)

BANFIELD: Joining me now with their insights are CNN terrorism analyst Paul Cruickshank in Washington, and also in Boise, Idaho, former CIA covert operations officer Mike Baker.

I'll begin with you, Paul, if I can, and that is this. As devastating as this news has been to see an American journalist executed in such a brutal and ruthless way, with such a clear message, is it possible it will have any effect whatsoever on America's foreign policy?

PAUL CRUICKSHANK, CNN TERRORISM ANALYST: Well, it's not clear. The policy at the moment is to try and somehow contain ISIS in Iraq. It's been a growing threat there in Iraq. It's also, of course, a growing threat in Syria and the United States is not at the moment confronting the group in Syria, Ashleigh. So unclear whether this will have any effect on U.S. foreign policy. Obviously it increases concern about the group, increases concern that the group could retaliate against U.S. interests both in the region, in places like Jordan and Lebanon, but also in the west. This is a group with up to about 1,000 Europeans recruits in its ranks, so the concern is that they could train these people and send them back to the west, even on the United States, to launch attacks. BANFIELD: Well, to that extend, Mike Baker, from your background in

the CIA, do you really truly believe that this sort of a video helps in recruiting or does this take ISIS over the top? Not that they haven't done bleedings before. Let's be clear, they have done many and they have done worse.

MIKE BAKER, FORMER CIA COVERT OPS OFFICER: Right.

BANFIELD: But when it reaches an American audience like this in the way that it does, will this actually help in recruiting or will many say it's too much? They've gone too far and this will - it will have the opposite effect?

BAKER: No, I don't think it will have the opposite effect. I mean they - I don't want to make them sound like Lex Luther, but they are - you know, public relations, they understand what they're doing. There is a recruiting aspect to posting these video. And as you pointed out, look, they've been doing this, they've been beheading and committing, you know, horrible, savage atrocities throughout their campaign, since they've been taking territory in Syria and now their marched through Iraq. So this is nothing new.

What is new, obviously, it's a U.S. citizen. It takes it outside the borders. But I think that, you know, the reaction internally in Iraq is, well, yes, I mean, this is what they do. So we're shocked by it. But we have to remember also, we've been dealing with this before. And, obviously, Daniel Pearl, Nicholas Berg. And whether it's -- we're talking about al Qaeda or whether we're talking about ISIS, the mentality is the same. We tend to always want to divide and make each of these their own separate story, but they're not. We're talking about extremists, jihadists. We can't process here in the west. We don't understand necessarily the level of brutality that we're dealing with and the lack of value that they place on life.

BANFIELD: Appreciate both of your perspectives and comments on this. Paul Cruickshank and Mike Baker, thank you both very much.

New protests in Ferguson, Missouri. The latest, mostly peaceful. But with the attorney general just having landed in that town, what impact could Eric holder have on the investigation. That's coming up next.

(COMMERCIAL BREAK)

BANFIELD: And the breaking news is that the president has a plan to speak to the nation about 30 minutes from now.

He plans to address the issue of the beheading of an American journalist, a video that was released, a brutal video that was released, James Foley executed on tape, and the president addressed specifically by name on that tape by members purporting to be ISIS.

We're going to bring you those statements just as quickly as they come to the live mike, so we're watching that for you.

We're also watching the story in Ferguson, Missouri, and a rare check- in from the attorney general of the United States himself, in light of the outrage and the violent protests over the police shooting of Michael Brown.

Eric Holder just arrived in Missouri, about 25 minutes ago, in fact. He's there to meet with community leaders, with FBI investigators, and with prosecutors who are working this case in Ferguson. He says in order for the healing process to begin, the violence first has to stop.

St. Louis County prosecutor, for his part, Bob McCulloch, says that a grand jury will indeed begin hearing some evidence today in these shooting -- in the shooting incident.

McCulloch's office is working on a mid-October goal for all of the evidence to be presented to the grand jury -- mid-October.

Last night, the protests began peaceful, and then it got late, and then someone through a water bottle at the police, and then the arrests amounted to 47 people. But it didn't resort, at least, to using tear gas like we've seen in previous nights. To our knowledge, there were no gunshots fired either, from the crowd or the police.

Michael Brown's funeral service in the meantime is scheduled to be held on Monday at 10:00 in the morning, and the Reverend Al Sharpton will be delivering the eulogy.

Attorney General Eric Holder's visit to Ferguson today is perhaps as much about the investigation as it is to the message of the people of Ferguson and perhaps right across the nation -- we hear you, we're going to find out what happened, and do our best.

Those are the messages from him himself. He wrote an op-ed, Mr. Holder, in the "St. Louis Post-Dispatch" to the people of Ferguson that read, in part, "We understand the need for an independent investigation, and we hope that the independence and thoroughness of our investigation will bring some measure of calm to the tensions in Ferguson. In order to begin the healing process, however, we must first see an end to the acts of violence in the streets of Ferguson."

CNN's justice correspondent Evan Perez is live in Ferguson. Tell me about the plans for attorney general Holder. What's he got in store for today?

EVAN PEREZ, CNN JUSTICE REPORTER: Ashleigh, he's arriving just about now for a meeting with community leaders here in the St. Louis area, in the Ferguson area.

He's going to be meeting with members of the clergy, other people from the local community, and at some point, we expect that he's going to take some time and meet with Michael Brown's parents.

Part of the message that he's bringing here is this Justice Department investigation, which is a civil rights investigation, and is separate from the county investigation, is going to be done fairly.

It's going to take some time, so he's going to ask for some patience while the prosecutors and the investigators do their work.

He's going to meet with the FBI investigators later this afternoon and the prosecutors to get an update on the investigation.

It's a very unusual situation. The attorney general doesn't take a hands-on role in these types of cases, certainly not in the middle of an ongoing investigation.

And part of the message he's bringing to the local community is that, look, the Justice Department has been very active in investigating police brutality, police tactics, against communities.

They've done about 20 investigations in the past five years. It's more than twice the number that they've done the previous five years, so that's part of the message he's bringing, Ashleigh.

BANFIELD: And, I mean, honestly, the attorney general doesn't often make these kinds of trips, certainly in the middle of an investigation.

How much of this will actually be a function of work, of questions being asked specific to the investigation? How much of this is really the optics, to make sure that everyone knows we're here, we're on the case?

PEREZ: Well, yeah, that's definitely -- it is a message-sounding trip here. The issue too is the attorney general actually wanted to come down here and see the people who are working on the case, to get a sense from them whether they're getting the resources that they need to even hear perhaps some of the evidence that's been collected so far.

We know that the FBI agents have been out canvassing, knocking on doors, talking to witnesses, some witnesses who probably haven't been able to talk to the county investigators yet at this point, so that's part of it as well, Ashleigh.

BANFIELD: Evan Perez on the ground, live, for us, our justice correspondent in Ferguson, Missouri.

And for the LEGAL VIEW on this, the implications and the significance of what's happening there today, I want to bring in senior CNN analyst Jeffrey Toobin, a former federal prosecutor himself; CNN legal analyst Paul Callan, a criminal defense attorney and former prosecutor; and Midwin Charles, a criminal defense attorney and a civil trial attorney as well.

And, Jeff, I'm going to start with you since you worked for the DOJ. How rare is this?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: The only thing I can think of anything comparable to this was the Oklahoma City bombing, which is two decades ago, so it's very, very rare.

I think it is mostly symbolic but symbols are important, and, obviously, the attorney general and the president through him are saying, look, this is something we care a lot about, we're going to devote all the resources necessary, and we're going to make a case, if a case can be made. And I think that is not a resolved question at this point.

BANFIELD: What about, Midwin, just the notion that this will have the desired effect?

MIDWIN CHARLES, CIVIL TRIAL ATTORNEY: I think it's going to work. I think that one of the problems that you see here in Ferguson is that the people are feeling as though they've been neglected.

This young man was killed by a police officer. His body laid in the street for several hours. So there's a sense of frustration. There's a sense that their expectations aren't being met in terms of their voices not being heard.

So I think this is going to have the desired effect. I think it is going to work. I think all along, the protests that you've seen, that's what they've been protesting about, is that they want to feel as though they are heard -- see us, hear us, listen to us.

BANFIELD: And I've heard this said several times, but it bears repeating. The calls for justice from the ground, oftentimes justice isn't something we like. It doesn't always work out in your favor. It doesn't mean that justice isn't done.

Does this somehow tamp down any possibility that justice may not actually go in the favor of many in the community?

PAUL CALLAN, CNN LEGAL ANALYST: Well, we don't know which way it's going to go because we still don't have the whole case.

We've heard some of the witnesses, and it looks really bad for the police officer, but we haven't heard his story, and we haven't heard if there are witnesses supporting him.

But with Eric Holder coming in like this, I'm going to go out on a limb a little bit here. I think the feds are going to supersede and take the investigation over.

BANFIELD: Even though the grand jury begins today?

CALLAN: Yeah, I think they're going to take it over. I'll tell you why I think that.

One, he's already got all these FBI agents on the ground, I think, 40 agents doing 100 interviews. They've done their own separate federal autopsy. They never do that. And they've already done their own autopsy.

And, three, there were reports in Missouri that the prosecutor was kind of sending messages to the governor today, saying, hey, if you want me off the case, tell me you want me off the case.

Once he's off the case, the governor might as well give it to the feds --

TOOBIN: But if that's true -- if that's true -- CALLAN: Go ahead.

TOOBIN: It's a tougher case in many respects, because a federal civil rights prosecution require, a showing of intent, of racially motivated intent, that you don't have to show if you bring a Missouri state prosecution --

BANFIELD: OK, that's for the civil rights prosecution, but what if they also take over the criminal prosecution?

TOOBIN: Well, I'm -- you mean the --

BANFIED: To do both?

TOOBIN: To do both?

BANFIELD: Could they?

TOOBIN: No, you can't., Federal prosecutors can only prosecute federal crimes.

BANFIELD: Right, right.

TOOBIN: So homicide, first-degree, second-degree murder, those are state crimes that can only be prosecuted by state officials.

BANFIELD: What can they functionally do to take over the case? It still has to be prosecuted as a murder case.

CALLAN: Well, yes, it would, but the murder was conducted with racial bias and racial animus. And it could also be brought as a civil case as well, where it would just be loss of life, possibly.

But the criminal case, they're going to try to maintain it was a racial bias case, that there was racial profiling here, and that there was a loss of human life as a result of it.

CHARLES: And, you know, Ashleigh, in these types of cases, it's rare that you see the federal government actually go forward with an actual civil charge.

But they've already indicated that there's some deep concerns here with respect to the way the police department has conducted themselves.

And so I wouldn't be surprised if you actually see that in this case.

CALLAN: Well, you know, it is --

BANFIELD: This administration, by the way, has done more in the last --

CHARLES: They've expressed a lot of concern with how this is being handled.

CALLAN: The reason that I'm surprised by it, I mean, why are they doing their own autopsy if they're not going to take the case over? They're just making it harder for the locals because you're going to have conflicting autopsy reports.

BANFIELD: Or maybe not. You never know.

I've got to cut it there, only because we've got the president coming shortly as well, a lot of news to fit in before that.

Thank you so much, Paul, Midwin, and Jeff Toobin as always for your perspective on this.

And now we know what the attorney general might do in this case, but what about the prosecutor? Some people want Robert McCulloch to recuse himself.

Why he may not have the trust of the African-American community in that area when we come back.

(COMMERCIAL BREAK)

BANFIELD: And our breaking news, we are awaiting President Obama to speak to the nation about this recent and awful video that's been released by jihadists of the beheading of an American journalist named James Foley.

It's been authenticated as real by this administration, and the president has decided in about 15, 16 minutes from now, he's going to address the nation about those statement, and the ultimatum that's been given over the life of a second journal unless this administration makes the right kinds of moves, as ISIS suggests, and stops its air strike campaign in Iraq.

We'll bring that to you just as soon as it begins. The live mikes are ready to go, and we will be too.

The first round of evidence in Michael Brown's shooting will be presented to a grand jury today, according to CNN affiliate KMOV in St. Louis.

And this stage of the investigation is not without controversy. Brown family attorney general Benjamin Crump says he's concerned about the secrecy proceedings that grand juries effectively are. They're operated in secret.