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Legal View with Ashleigh Banfield

Russian Forces Roll into Ukraine; ISIS' Strength; Next Generation of Terrorists; Legal Justification for U.S. Killing Americans With Drone Attacks

Aired August 28, 2014 - 12:00   ET

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

JOHN BERMAN, CNN ANCHOR: A source close to Joan Rivers has just confirmed that. Again, as I said, a lot of people have been talking about this online. We don't know more about it now, but wanted to fill you in on what we did know.

MICHAELA PEREIRA, CNN ANCHOR: Following some sort of throat surgery and she stopped breathing. So that's the latest we know. Stick with CNN. We'll cover that as more news comes out.

Thanks for joining us @THIS HOUR. I'm Michaela Pereira.

BERMAN: "LEGAL VIEW" - and I'm John Berman. "LEGAL VIEW" with Ashleigh Banfield starts now.

ASHLEIGH BANFIELD, CNN ANCHOR: Russian tanks storming Ukraine. Ukrainian forces on the run. Their commanders calling this a full- scale invasion. All the while, Moscow saying it's all a lie. How will the U.S. and the world respond?

Also this hour, you thought ISIS was a bunch of ragtag radicals. Think again. We'll show you a highly trained fighting force with American howitzers and other high-tech weapons, advanced war strategies, even drones, and a 21st century propaganda machine making them more popular by the minute.

Hello, everyone, I'm Ashleigh Banfield, and welcome to LEGAL VIEW.

So much for the handshake. Barely 48 hours after the presidents of Ukraine and Russia met in Minsk and the world thought maybe, just maybe Ukraine would be spared a full-scale Russian invasion, a full- scale invasion is exactly what Ukraine says is happening right now. A U.S. official confirms to CNN that as many as 1,000 Russian soldiers have opened up a second front in Ukraine with tanks and other heavy weaponry. And though Moscow is denying everything, the U.N. Security Council will be pressing its envoy for answers in an emergency meeting set for this afternoon. NATO meets in an emergency session tomorrow. Right now let's get right to the action, the fighting. We're very near it at least with CNN's Diana Magnay.

Diana, from your vantage point, what have you been able to actually witness?

DIANA MAGNAY, CNN CORRESPONDENT: Hi, Ashleigh. Well, very little. We're actually between the coastal city of

Mariupol, on the Russian border, which is probably about 25 miles in that direction. The checkpoint behind me is the last Ukrainian presence as far as we can tell up to that border. The land beyond effectively up for the taking.

We have been a long way down that road. We have seen no evidence of an invasion. In fact, we've seen no Russian presence at all. But this is a very long stretch of border, and it's hard for us to see all that much.

I was speaking to a commander of one of the volunteer battalions though down here. He says that his forces on Wednesday were routed from the town of Novoazovsk, which is very close to the Russian border, by pro-Russian separatists, backed by Russian military units, with heavy Russian armor. The U.S. ambassador to Ukraine says that that includes sophisticated anti-aircraft systems, the SA-22 presumably, to stop the Ukrainian army from sending in any kind of air support. And certainly my commander, the man I spoke to, said that they have been asking for reinforcements and they have received none for their floundering battalion.

And this isn't the only place, Ashleigh, where fighting is taking place. Certainly down in the south, it does feel as though there is a new front opening up to distract attention maybe from the Ukrainian army's push on the two large rebel strongholds of Luhansk and Donetsk. But there also seems to be a lot of fighting going on up near the crash site of MH17. A renewed intense amount of fighting there where apparently Russian troops are also involved, according to the Ukrainians. So certainly things do seem to have upped significantly militarily in the last couple of days, Ashleigh.

BANFIELD: Diana Magnay live reporting for us on the ground in Ukraine with her team. She'll continue to watch for us and report as the situation changes there. Thank you, Diana.

And President Obama is calling in his national security team today. Not on Ukraine, we're being told, but on ISIS, aka Islamic State, in Iraq and Syria. The U.S. is still conducting air strikes on ISIS fighters in Iraq and considering attacks in Syria as well. But a White House aide tells CNN not to expect any big announcements today.

In the wake of the ISIS takeover of a key Syrian air base, the group says it executed more than 200 government troops. Plus, dozens who fled the fighting were recaptured. These very grim images are now showing up online. But CNN cannot independently verify where they were taken or when those images were taken.

The United States, meanwhile, says it is looking into claims from rival Syrian opposition groups that a second American citizen has been killed there in Syria recently. That's in addition to Douglas McCain. It's also being reported that a boyhood friend of McCain's also became a jihadi but died in Somalia fighting jihad back in 2009.

It was one week ago that Defense Secretary Chuck Hagel said this to Pentagon reporters about ISIS. (BEGIN VIDEO CLIP)

CHUCK HAGEL, DEFENSE SECRETARY: They marry ideology, a sophistication of strategic and tactical military prowess. They are tremendously well funded. Oh, this is beyond anything that we've seen.

(END VIDEO CLIP)

BANFIELD: That comment perhaps so significant because with each passing day the world gets more and more evidence that Islamic State, as they call themselves, well, in Hagel's words, is just beyond a terrorist group. For more evidence, here's CNN's Brian Todd.

(BEGIN VIDEOTAPE)

BRIAN TODD, CNN CORRESPONDENT (voice-over): They're vicious, battle- hardened and, maybe most frighteningly, they learn fast. That's the word from U.S. officials who tell CNN ISIS is getting better on the battlefield. One U.S. official says they show "uncanny discipline." A Pentagon official says ISIS is a learning, adapting, reacting organization.

DOUGLAS OLLIVANT, NEW AMERICAN FOUNDATION: Their battlefield discipline continues to surprise us, to show us that they're really a first-tier force, that they're trained.

TODD: Combat veteran Douglas Ollivant says on the battlefield ISIS is likely using what he calls a react-to-contact drill. That means in a firefight, they make initial contact against their enemy using the smallest number of fighters possible, maybe three or four.

OLLIVANT: And then put down fire so that -- because those three or four guys can then keep 20, 30 of the enemy focused on them.

TODD: Then, Ollivant says, a larger group of ISIS fighters comes around, flanking the enemy on one side, finds a weakness, attacks it.

OLLIVANT: This is something that the U.S. Army Ranger regiment has really practiced for years. It's been their hallmark.

TODD: And ISIS has demonstrated it has a powerful arsenal, an American howitzer cannon, according to this video posted by ISIS, which claims they're firing on a military base in Syria, and even unmanned aerial vehicles. This propaganda video shows aerial footage of a Syrian military base and brags the drone is deployed from the Army of the Islamic State. The ranks of ISIS fighters are building in part due to their savvy use of social media. Experts say their outside supporters use social media to help them recruit and promote.

PETER NEUMANN, KING'S COLLEGE: What makes it so powerful is that there are hundreds of people out there on Twitter, on Facebook, on Instagram that are forwarding their messages, disseminating them, republishing them.

TODD: And selling them. ISIS t-shirts, hoodies, even toys are marketed online by its supporters and sold in shops around the Middle East. (END VIDEOTAPE)

BANFIELD: And Brian Todd joins me live now.

Brian, you know, there have been a lot of people who have said ISIS is not 10 feet tall and yet then we hear things like they're a de facto army. Which is it? Is it rhetoric? Is it reality? What are they considered, at least in the eyes of Americans?

TODD: Well, Ashleigh, they're a strange hybrid. Officials and analysts are telling us they're kind of a combination of a terrorist group and a conventional force. And that's one of the things that makes them so formidable. On one hand, they use ambush tactics. They use IEDs, suicide bombings and assassinations, things like that, which are emblematic of terrorist organizations. But on the other hand, they're very strong on the battlefield. They have heavy equipment. They use tactics that -- you saw the analyst there say that - that he's seen what the U.S. Army Rangers use and there's evidence that they have some decent training. So they are kind of a combination of a conventional military force and a terrorist group, and that has really thrown off the balance on the battlefield in Iraq and Syria.

BANFIELD: And certainly they are well documented. There is just so much material to see online. Brian Todd, thank you so much for that. Do appreciate it, sir.

TODD: Sure.

BANFIELD: And there's another terrifying tactic that ISIS is using right now, and this is starting to really come to light. Kids, mere children, being indoctrinated. Take a look at your screens. Up next we're going to show you how this terrorist organization finds this to be the new generation. And they don't find anything wrong with showing them beheadings and stonings. True story coming up. You'll hear from one of the children himself.

(COMMERCIAL BREAK)

BANFIELD: This just in. An Israeli police spokesperson has confirmed that the body found in a Jerusalem forest is that of missing American student Aaron Sofer. Sofer vanished last Friday while he was on a hike in Israel. Forensic experts are right now working to determine the cause of his death. And we will keep you posted on that story.

While children across America are going back to school to learn how to add and subtract, talk about folk heroes like Paul Bunyan or Johnny Appleseed, in Syria there are children who are being sentenced, instead, to ISIS camps to learn the Koran, to learn how to shoot guns and their heroes are not the kind that you see in the tall tales, they're heroes of the terrorists hell-bent on launching a holy war. Nick Paton Walsh looks at the children of ISIS, the next generation of terrorists.

(BEGIN VIDEOTAPE)

NICK PATON WALSH, CNN CORRESPONDENT (voice-over): ISIS want their caliphate to span generations, so ideas are crammed into minds that are often too young to understand. Like these weapons, absurdly held and manipulated by limbs that cannot control them. Yet still, ISIS films and boasts with their youngest.

Mohamed (ph) has now fled to safety in Turkey, but was age 13 when ISIS said he should attend their children's camp in the Syrian city of Raqqa. His father didn't agree.

"They didn't threaten me," he says, "but they threatened my father. When he prevented me from going to jihad and the camp, they said they'd cut off his head. We stayed in the camp for a month," he says. "Every morning we exercised, jogging and such and had breakfast. Then we studied religion, the Koran and the life of the prophet. Then we took a course on weapons, the Kalashnikov and other light military stuff.

It's rare testimony from schools where boys learn Koranic verse by wrote (ph), as you hear in this ISIS video and from which few escape and about which fewer talk. "I understood some things, such as praying and worship, he says, but many words I didn't understand like infidels and apostates why I should fight them. Everybody pledged allegiance. Everybody who went to the camp pledged allegiance to Calif Abu Bakr al-Baghdadi." They take an oath, yes, seen here, but are also indoctrinated into ISIS's barbaric system of justice.

"They ordered us to come at a specific time," he says, "and a specific place to watch heads being cut off, lashing or stoning. We saw some of these scenes. We saw a young man who didn't fast during the holy month of Ramadan, so they crucified him for three days. And we saw a woman being stoned to death because she committed adultery." This boy, who's learned hs lines, but they, too, know death too young.

"There was one of my friends," he says, "who went with them for a battle, and he was martyred in (INAUDIBLE) when he fought the Free Syrian Army rebels with ISIS. He was my age, 13 or 14 years old." Merely a year into his creation, so much ISIS has already damaged that cannot be undone.

Nick Paton Walsh, CNN, London.

(END VIDEOTAPE)

BANFIELD: From children now to American citizens, Americans are part of the ISIS fighting force, so how far can the U.S. government go to wipe out any threat they may pose? Can drones just kill them in action? Without trial or due process?

You're going to get the LEGAL VIEW on what's allowed and what isn't, just ahead.

(COMMERCIAL BREAK)

BANFIELD: Americans fighting for ISIS abroad creates a bit of a tricky situation for the United States. Secretary of defense Chuck Hagel says ISIS posed a grave threat to the U.S. But what can the U.S. do about these American citizens who have chosen to join ISIS? Can the government legally kill them, say in a drone attack?

The Obama administration has carried out drone attacks on citizens overseas in the past that have been deemed imminent threats but not without controversy.

A lot of experts say the justification for killing Americans rests on some pretty shaky legal ground and perhaps that ground might be tested more in the future as is becomes an increasing threat.

Joining me now is constitutional and military law expert and Loyola Law School professor David Glazier and counterterrorism analyst Phil Mudd, also former deputy director of the counterterrorism center for the CIA. Gentlemen, thank you both for joining me.

If I could, David, I'd like to direct this first question for you. It's a very simple question. I don't think it has a simple answer, but here it goes.

When does the United States government have the authority to kill one of its citizens without using due process?

DAVID GLAZIER, CONSTITUTIONAL LAW EXPERT: Well, if the United States is engaged in an armed conflict, then it becomes a fairly straightforward matter.

If an American citizen chooses to affiliate with an enemy of the United States, then they're just as liable to being killed as anyone else.

I think the whole question about killing Americans sort of misses what I think is the more important legal question, does the United States have a right to kill people who pose a threat no it at all?

If we do -- for example, if we're in an armed conflict -- then citizenship doesn't matter, but if we're outside an armed conflict, then killing anyone becomes quite problematic.

BANFIELD: OK. So Phil, if I look back at the al Awlaki situation in Yemen where he was taken out by an American drone strike, as I recall, there was no armed conflict currently at the moment going on in Yemen.

So how do we then define an armed conflict so that that gives the cover, the legal cover, to be able to carry out an operation like that?

PHIL MUDD, CNN COUNTERTERRORISM ANALYST: Let me give you the practical situation -- and I was there when the Awlaki situation was unfolding -- and that is you're facing a threat from al Qaeda that's metastasizing, that's spreading into places like Yemen, Somalia, Saudi Arabia.

In Yemen you have a no man's land where you have an American citizen, Awlaki, who's involved in ideologically inspiring team to fight jihad but also involved for the training of that individual trying to explode an aircraft over Detroit in December of 2009.

The question we faced was pretty simple. Conflict or no conflict, there's an individual who's trying to plot to send somebody into the United States to murder innocents. That individual happens to be an American. You cannot get access to that person through conventional military means.

Do you intervene by killing him, or do you let the plot roll? My position was typically you've got to stop the plot. And the only way you could do that is kill him with a drone.

BANFIELD: So that sounds a lot like either an opening or closing statement in a court of law.

David, we both know that those statements aren't necessarily evidence, and they don't necessarily pertain to the things that actually come into trial, and so if this were a case that had to be made legal and the only evidence that we could actually gather to suggest there is this imminent threat comes from 60,000 feet in the sky with drone intelligence, how powerful is that evidence to make that kind of a judgment?

And by the way, who ultimately is making that final decision to end someone's life?

GLAZIER: Well, the justifications advanced for killing threats are either part of -- they're either part of an armed conflict, or the president is asserting authority under Article 2IIunder his presidential powers to take action to defend the United States in self-defense.

And clearly, the framers of the Constitution intended the president to have some authority to act in an urgent situation without having to wait for Congress, so as a matter of law, I think the decision does rest with the executive

The problem that I see is simply that I think we're stretching the law too far. The president could have made the argument that al Qaeda in the Arabian Peninsula, that Awlaki was a part of was either closely enough related to the core al Qaeda as to fit within the armed conflict that Congress authorized after 9/11, or he could have gone back to Congress and sought a separate authorization for hostilities against al Qaeda in the Arabian Peninsula.

The problem is that we don't have a coherent legal justification. The information that's come out of the administration is really a weird mash-up of some principles taken from the law of armed conflict as if it's actually a war. Others taken from self-defense law. We just don't have any coherency at all.

BANFIELD: The documents that we have fought for, you know, with the Freedom of Information Act have come heavily redacted.

I'm almost out of time but I've got to ask this question. Phil, you're the first person I thought of. Based on the evidence-gathering techniques and the dangerous places where we necessarily can't get a lot of good, dirty human intelligence on the ground, are you comfortable with the kind of intelligence that these drones can actually deliver?

Again, when we're talking about ending -- and we'll just say an American life at this point, because we're talking about these American jihadists who have joined ISIS -- are you comfortable with the level and the bar of evidence that is -- that it takes to actually make that decision?

GLAZIER: Well, if we're in an armed conflict, yes. This is actually better --

BANFIELD: Sorry, go ahead, Phil.

GLAZIER: -- than we've had in previous conflicts.

BANFIELD: Phil, from your CIA background, knowing the gear and knowing the methods and the methodology and also just how dangerous it is to get even closer to the situation to gather even better evidence, are you comfortable that we can do that job?

MUDD: I am comfortable with it, but I think the discussion you're having, Ashleigh, is late, and it's appropriate to have the discussion.

I was a practitioner. I'm comfortable with what we did. But this conversation is right on point.

The technology is outpacing the policy. We can participate in killing people outside war zones without somebody on the ground. Is that something we want to do? And I think that's a discussion worth having.

BANFIELD: You know what? You're going to come back. We can't do justice in even one program, so I think you're right. As we broach into this topic further and further, this is critical.

Both of you, terrific minds, and I appreciate your time. David Glazier and Phil Mudd, thank you.

GLAZIER: Thank you.

MUDD: My pleasure.

BANFIELD: Every day across this country, police officers have to make a choice -- shoot or don't shoot.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Hey! Hey! Back up! Back up! Back up! Drop the knife right now. Drop it.

UNIDENTIFIED MALE: Police officer.

(END VIDEO CLIP)

BANFIELD: Just ahead, we're going to show you, take you inside this state-of-the-art training system for police and what it reveals about how officers respond to life-and-death decisions in a split second.

(COMMERCIAL BREAK)