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Legal View with Ashleigh Banfield

North Korea Threatens New Hack Attacks; Cuban Spies Released by US Return to Hero's Welcome; US Army Report on Bowe Bergdahl Incident Expected in Near Future; Pope Francis Gives Christmas Address

Aired December 22, 2014 - 12:30   ET

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

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ASHLEIGH BANFIELD, CNN ANCHOR: Which North Korea should America believe, the one that insists it did not hack Sony or the regime that's now issuing brand new threats promising another bigger attack published in English? You heard right. I want to read a bit of this latest threat from North Korea to you.

It goes, "The DPRK has already launched the toughest counteraction. Nothing is more serious -- nothing is a more serious miscalculation than guessing that just a single movie production company is the target of this counteraction. Our target is all the citadels of the United States imperialists who earned the bitterest grudge of all Koreans."

I'm not sure about the South Koreans but look that's what they wrote. Big question now, how should the United States respond to that very eloquent grammar and prose?

Our Elise Labott joining us from Washington, D.C.

Elise, I make jokes about the grammar and all the rest, but here's the deal, they're saying we didn't do it but we're going to do it more than we just did it. I'm not sure I get it. I'm not sure that the administration is taking it as seriously as may be the administration should. What are you hearing?

ELISE LABOTT, CNN GLOBAL AFFAIRS CORRESPONDENT: Well, actually, I mean, look, this is a lot of the same bluster that we've heard from North Korea on other occasions about it using its army, its nuclear arsenal, I mean a lot of these threats, the U.S. takes as kind of rhetoric.

Certainly the hacking was very serious. And as President Obama said, the administration is considering a response. But I think it's probably unlikely that North Korea would launch any type of military attack, for instance on U.S. troops on a Korean Peninsula, because it knows that if the regime is interested in its own survival and that's really what all of their actions are about, that this is a sure way to threaten that and the U.S. response would be really enormous.

BANFIELD: Can I read you this one more sentence that came from the North Korean threats, it's pretty rich. "Our toughest counteraction will be boldly taken against the White House, the Pentagon and the whole U.S. mainland, the cesspool of terrorism."

And over the weekend, the President told our Candy Crowley that he thought that Sony hack was an act of cyber vandalism, not necessarily cyber war. But then this rhetoric came out after the President's comment. So, is the President going to change how he at least verbalizes what he thinks about this?

LABOTT: Well, I mean as the North Korean rhetoric heats up, the U.S. rhetoric usually heats up, although they don't want to get into too much of a provocation with this regime because as we know, it's very unstable and you never know what it will do.

Certainly, the U.S takes the threats very seriously. Right now, they're just threats, as President Obama said, this wasn't considered an act of terrorism, it was, you know, an act of vandalism, an act of sabotage. If the North Koreans were to go against any U.S., you know, infrastructure, any U.S. aviation systems, things like that where people could seriously get hurt, now that would be an act of terrorism but right now, the U.S, wants measure its response.

Although -- listen Ashley, this is the most bold attack, hacking attack the U.S. has seen from North Korea, and officials were really surprised at what North Korea was able to undertake. So that's why they're not only talking to the Chinese but others about trying to shut down these North Korean hackers.

BANFIELD: All right, Elise Labott live for us. Thank you for that and happy holidays.

LABOTT: You, too.

BANFIELD: So a convicted Cuban spy being held in a prison in California somehow manages to get his wife pregnant, remotely and it all happened apparently. We're going to try to explain this one in the spirit of Christmas next.

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BANFIELD: The United States Justice Department is saying that the improved relations with this country and Cuba makes it more likely that American fugitive who took off to Cuba could be returned to the United States to face some justice. This development, a result of the United States' restoring the diplomatic relation with that country. However, as part of the deal, there was something the world did not see, something akin to a spy thriller. The U.S. government's decision to help the wife of a jailed Cuban spy become pregnant, I'm not kidding. Patrick Oppmann is in Havana.

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PATRICK OPPMANN: Just released from U.S. prison, the Cuban Five received a hero's welcome from Raul Castro and top officials.

The men's return has Cubans buzzing, not just over the secret negotiations that freed the Five, but also over the mysterious seemingly miraculous pregnancy of the wife of spy ring leader, Gerardo Hernandez, that Adriana Perez is with a child was all too clear in the state TV images released when the men touched down in Havana after 16 years languishing in U.S. federal prisons.

Greeted by admirers in his old neighborhood, Gerardo said, "As much is I prepared for my return, it was still surprising." The couples' pregnancy is also surprising since Adriana was long banned from visiting Gerardo in U.S. federal prison for herself being a Cuban intelligence officer.

Family of other members of the Five says she was inseminated artificially. And that Gerardo is the father.

"Gerardo's in good shape, strong and happy." She told me about the expecting father, he'll explain how it happens. It was science.

Cuban Five member, Rene Gonzales told CNN he can't disclose how a pregnancy or the other spy thriller was pulled off.

RENE GONZALES, CUBAN INTELLIGENCE OFFICER: I don't have the right to say that. But it was, it was accomplished, it was accomplished with the will -- the will of the U.S. government and the Cuban government, that's import.

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OPPMANN: In a statement release to CNN, a justice department spokesman said, "We can confirm the United facilitated Ms. Hernandez is request to have a baby with her husband in light of Mr. Hernandez' two life sentences. The request was passed along by Senator Leahy who is seeking to improve conditions for Mr. Gross while in prisoned in Cuba. Gerardo receive a double life sentence for his role in the downing of two planes by the Cuban air force that killed four Cuban- Americans.

U.S. officials help them conceive a child is sure to add salt to the wounds of Cuban exiles already enraged at a rekindled U.S.-Cuba relations.

Gerardo and his wife, saying in about two weeks time, they're due to have a baby girl and thank the U.S. officials who made this unlikely pregnancy possible. Definitive proof of the old saying that politics really do make strange bed fellows.

BANFIELD: And here I was thinking there'd be a Christmas miracle to about. And Patrick, youi been doing some phenomenal reporting as CNN was only network live when this incredible announcement came down in Cuba last week. But it's been almost a week, Patrick, so, can you tell me if anything different there. Is this too soon to ask this question or has this news lead through that island and palpable changes can be felt.

OPPMANN: Oh it's -- in terms of tone and sense and just optimism, Cubans are very excited, they got more hope for the future which is something they've not had in a very long time Ashleigh. On Saturday, Raul Castro, again addressed the nation and thank President Obama. But he did lay his vision out which is that people revolution is going nowhere, the single party form of communism is going nowhere. So, certainly a very different tone than perhaps what you're hearing in Washington where they - that you get by opening up to Cuba, they'll have more influence and be able to affect Cuba's domestic and international policies, Raul Castro says that just isn't so.

And of course, we've been hearing, you know, in the last few days about U.S.' desire to bring back some very wanted fugitives from the island. You know, we knew this came up during the negotiation that freed down Gross, and the Cuban government I'm told, said no, that those fugitives have been given political asylum and their repatriation was not on the table. So, you know, this is going to take a lot more talks and meetings to hammer out some of these differences. And we expect, you know, those talked to begin very soon. But some very real differences, a few remain, Ashleigh.

BANFIELD: All right. It will fascinating to see if there's any extraditions treaties that can be crafted that may be even might be retroactive, but I think that along way down. Patrick Oppmann, have a happy holiday, nice to see in Havana. Thank you.

And coming up live on Wolf's show at 1:00 p.m. Eastern, Josefina Vidal is a Cuban point person for normalizing relations between her country and the United States, and Wolf is going to ask her how she plans to overcome oppositions to this idea.

And still ahead, remember Army Sergeant Bowe Bergdahl. He could soon learn his fate, in fact as soon as this week, after an investigation into how and why he disappeared from his Afghanistan post back in 2009, is now being completed. But the army may have limited options on how to move forward with this soldier. We're going to get the legal view next.

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BANFIELD: The story of Bowe Bergdahl still has a lot of blank spots in it. The biggest unanswered question, "Why did this young mean leave his post in Afghanistan?" United States military has been trying to answer that question and a whole lot of other ones, surrounding Bowe Bergdahl's disappearance way back in 2009. Their report is expected to be released soon -- actually maybe even this week. And how the army fills in those blank spots will be crucial as to whether Bergdahl faces court martial.

I'm joined by HLN legal analyst Joey Jackson and CNN legal analyst Mel Robbins.

Here is what I don't understand, when you have a war zone and you're not free to go and gather up evidence and put crime scene tapes down and preserved such evidence and interview witnesses in a timely fashion, how do you mount a case at all, let alone figure out what happened, Mel? MEL ROBBINS, CNN LEGAL ANALYST: Well, you know, they did conduct an investigation in 2009 and based on probably just preliminary interviews and some of the evidence that they had at the scene, they made a determination, Ashleigh, that he deliberately left, but what does deliberately mean?

It could mean that he left his post, do an AWOL, which absent without leave, and it could mean that he deserted but in order to proved that he deserted, he actually had to have the intent when he left his post of deserting the army and without interviewing him in particular which they've only been able to recently do, you can't make that determination.

JOEY JACKSON, HNL LEGAL ANALYST: Yes.

BANFIELD: So, Joey there's a lot of similarities between the uniform code of military justice which is the process under which he would be actually tried if he tried at all.

JOEY JACKSON: Right.

BANFIELD: And the regular civil criminal justice system.

JOEY JACKSON: Sure.

BANFIELD: But base on the same stuff and that evidence and witness testimony.

JOEY JACKSON: And that's very important and, you know, just quickly to Mel's point, is that your distinction as Mel and I were speaking about between deserting, Ashleigh, and between being absent or simply leaving your post, and certainly the punishments are different.

Now, when you look at evidence, it's difficult as you mentioned. You can't put crime, you know, scene tape around a war zone, of course not, but I think you can conduct interviews and those interviews would consist of certainly, as Mel mentioned, they conducted an interview with him later on. But I think there were people who knew him pretty well, who knew, you know, his state of mind, who knew what he would do on a daily basis and those are who work with him.

Now according them, there seems to be some suggestion that he did desert the post but did he really desert or was there any types of mental ailments, that he might have been suffering from post raumatic stress disorder or something else which might have led to that. I mean it may not be easy, I don't know, but serving in a war zone certainly would seem to be quite problematic.

BANFIELD: And so almost six years ago, Mel, if I'm his defense attorney and I am not an attorney -- but if I'm his defense attorney, I'm going to say all of those witnesses who were interviewed were probably pretty damn angry.

ROBBINS: Yes.

BANFIELD: That they were made to go out searching, their lives were at risk. And they're hearing media report that this young man may have just deserted. So that can also be affected what they hear, what the rumors are, rumors are rampant on this basis, that could affect what their witness testimony is.

ROBBINS: A 100 percent and that's absolutely going to be part of his tact, as well as talking about the mental state of the soldier as well. Because he did have, according to many reports, a history of post traumatic stress disorder and who knows what's stress you was under and he is represented by the way by a military law expert that teaches at Yale University.

JACKSON: Pretty good boy.

ROBBINS: But this is what Joey and I found to be very interesting, which is the army has wide latitude. They had a general that investigated all summer long. He's written this huge report. They've now brief Defense Secretary Hagel, and now they're going to turn it over to the army secretary to make a determination as to whether or not their going to charge him with any kind of criminal charges which is what we refer to as court martial, sending him to this criminal court inside the army system.

But what we found interesting is given the fact that you look at the politics on this and the President went behind Congress' back to rescue a POW in the army.

BANFIELD: And transfer five Taliban (ph) prisoners...

JACKSON: That's something that Congress was not very happy about by the way.

ROBBINS: Yes. And something that the army doesn't want to deter in the future. It wouldn't look good if they determine that he's a deserter, because that would then cause more blowback on this particular rescue and transfer.

BANFIELD: So...

JACKSON: Absolutely, I mean other issues briefly...

BANFIELD: ... what could happen to him?

JACKSON: It always depends upon what the nature of the actual offense that he's accused of with. Remember, because -- I mean, you could look at life in jail if you want to go the extreme but I think as a mitigating factor...

BANFIELD: Well, hold on a second, desertion at one point was punishable by death.

ROBBINS: His attorney is saying probably five years in jail but a lot of experts are saying that even if he were convicted, they would likely look at the fact that he spent five years...

JACKSON: In captivity. ROBBINS: ... in captivity and use that as a mitigation. Also, $300,000 worth of backpay, health insurance, whether or not he can remain in the army. All of these things are on table depending upon whether or not he's deemed a deserter or whether or not he is deemed somebody who left the post without leave.

JACKSON: And that 300 grand would be the forfeiture of the money that he earned when he was in captivity, and I think that's a major mitigator, you know, to the extent that he was there. Also remember, the people he was serving would said, you put my life in jeopardy, we looked for you as a result of you living. And people suffered casualties as a result.

BANFIELD: All right, Joey Jackson, Mel Robbins, great to have you. Happy holidays.

JACKSON: Thank you very much, Ashleigh.

BANFIELD: And I hope will do more this week because the rest of us continue to go to work all week and a....

ROBBINS: Oh, we're here all week.

BANFIELD: Thank you both. Appreciate it.

So the Pope, his Holiness has delivered his Christmas message and it's awesome. Instead of a heart warming speech though, he went harsh. He went critique and wait until you hear what he said and wait tell you here who he said it to.

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BANFIELD: Kumbaya. The Pope has given his Christmas message and guess what, he blasted the Vatican bureaucracy. This is the annual Christmas address, and in it, Pope Francis said, "A church that doesn't try to improve is like a sick body." Some of the illnesses, the dieses of feeling immortal. The "pathology of power" which he said could lead to people believing "they are superior to others and not here for the service to others."

And he went on, he added the disease of gossip "this is a serious disease that begins simply when people chatter and it takes over the person, turning the person as a Satan, and in so many cases, people are speaking ill about their own colleagues and brothers and sisters. These people haven't got the courage to speak directly, and they speak about others behind their backs." He goes on to say, "Dear brothers," he said, "let us be aware and guard against the terrorism of gossip."

John Allen is CNN's senior Vatican analyst. John, this was so unbelievable to see -- I mean this was just the tip of the iceberg, there was so much more that the Pope have said. He attacked his own church's leadership personally and very specifically. Have you ever seen anything like this before?

JOHN ALLEN, CNN SENIOR VATICAN ANALYST: Well, Ashleigh, this -- you're absolutely right. This was not exactly, you know, good tidings and holiday cheer, this was a very strong wake up call from Pope Francis.

Now -- one level, it's nothing new. I mean since his election, he has repeatedly weighed in against what he calls careerism, that is the kind of pretension to privilege and power of the clerical cast. Actually last year in this very speech, his yearend speech for the (inaudible), the Vatican administrative bureaucracy, he warned that without a spirit of service, the Vatican risks becoming nothing more than a kind of what he called a heavy bureaucratic custom sales.

But certainly, the sprawling nature of the critique that he issued today and the sharp language, I think that was qualitatively new. And obviously this was the pope who's been in charge for this institution now for almost two-years, more than 20 months, who has learned both its positives and its negatives. And decided he wanted to use this speech today to say to his team, "Look, I have seen what you were capable of, both its strengths and its weaknesses, and it's time for me to say to you clearly, I don't want those weaknesses to continue," Ashleigh.

BANFIELD: John, I just have a couple of seconds left but I need you to touch on the sex scandal. He touched on them but do we expect we're going to hear more from here about this?

ALLEN: Yes, absolutely. He's created a new commission to be sort of the sphere in the press for reform on the child sexual abuse scandals that have been such a cancer for the church. They recently appointed new members from around the world. Early this year, that is early 2015, we expect them to make some recommendations to the Pope...

BANFIELD: Oh OK.

ALLEN: ... about holding bishops accountable from making zero tolerance stick.

BANFIELD: Well, that's good to hear. Well, that's excellent good news and we'll watch to see what those additional comments are.

John Allen, good to see you live in Rome. Thanks so much.

And by the way, just a quick note, I want to let you know that coming up next hour on CNN, Mayor Bill de Blasio of New York City is expected to speak live at the Police Athletics League luncheon. Sort of controversial time right now for that mayor, with the police, so this could be incredible visuals. You're going to be able to see this live on CNN.

In the meantime, thanks so much for watching. My colleague Wolf Blitzer starts right now.