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Legal View with Ashleigh Banfield

Supreme Court and Obamacare; Boston Marathon Bombing Trial; Jihadi John's Past; Radical Recruitment Network

Aired March 04, 2015 - 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: What does it say about a city when 90 percent of people who get traffic tickets and 93 percent of all the people arrested are black? Out today, the U.S. Justice Department's investigative report on none other than Ferguson, Missouri.

In Boston, flashbacks to the blasts at the finish line and the manhunt that paralyzed that city as Dzhokhar Tsarnaev goes on trial for his life.

And did the arguments that we just heard in the U.S. Supreme Court deal any kind of a fatal blow to the Obama health care law, leaving millions who signed up for Obamacare without any plan at all?

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

If you don't think words matter, I want to show you four words that could, could be the downfall of Obamacare. Ready? They're simple, "established by the state." Seems so simple and yet that reference to government subsidies, the subsidies that are designed to help Americans with lower incomes so that they can afford health insurance, that health insurance that the law requires you to have, well, the question that's now being argued before these nine people this morning, the Supreme Court of the United States, is whether those subsidies, those extras that you get, in fact should only go to the consumers in the state run insurance exchanges.

Well, is that you? Well, take a look at your map. Only 16 states and D.C. agreed to operate the exchanges. And the rest, they're all relying on the federal government and its exchange. And, right now, more than 7 million people in those states qualify for a lot of money, almost $300 a month, in Obamacare help, bringing their out-of-pocket to just over $100.

So think about the math. If all of those people lost all of those subsidies, well, probably everybody but the sickest would drop out, causing the premiums for everybody else to surge, creating what none other than Justice Anthony Kennedy has called a death spiral for the whole Obamacare system. You better believe that our Jeffrey Toobin had a prime seat in the court to hear those arguments and our CNN justice correspondent Pamela Brown taking all the notes down as well.

Pamela, I'm going to start with you for a blow-by-blow of what happened in those halls today.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Well, Ashleigh, it was a sharply divided court, along party lines. The liberal justices came out of the gate first off with some very tough questions for the plaintiff's attorney. And they focus a lot on the context of the law. And as you just said, they kept honing in on this idea that it would be a death spiral if the subsidies were taken away from Americans in those 34 states.

Justice Kennedy really focused on the federalist argument. He seemed to be very concerned on how it would impact the states if the subsidies were taken away and whether the states knew at the time of making the decision of whether or not to have an exchange, knew that their citizens wouldn't get subsidies if there was a federal exchange.

But Justice Roberts, Chief Justice Roberts, Ashleigh, interestingly enough, didn't really say a whole lot in the courtroom today. All eyes were on him, of course. As we know, he stunned conservatives when he upheld the constitutionality of the Affordable Care Act several years ago. But today it seemed like he didn't want to tip his hand as to which side he was on. And I think it caught a lot of people by surprise by the fact that he really didn't say a lot today.

BANFIELD: So I'm going to turn to the man on your left, if I can, Pamela.

Jeffrey Toobin, I am not going to ask you to prognosticate because I know you are loath to do so when it comes to what arguments mean. But, look, we all get a flavor of what the justices are thinking before they come down with their decisions. And if, you know, if Roberts hasn't said anything that will lead us to believe where he might be, was there anything else that should tell us the fifth person is leaning a certain way?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, Ashleigh, you know, as you point out, I have been burned and I have burned our viewers with unduly certain predictions about what oral argument means for the future actual decision, so I won't do that. But certainly the four Democratic appointees were right off the bat -- Ginsburg, Breyer, Sotomayor, Kagan - were full of hostile questions for Michael Carvin, the lawyer who was leading the forces challenging the Affordable Care Act.

But as you point out, four doesn't do it. They need a fifth vote. Anthony Kennedy and John Roberts seem like the only possibilities. Justice Alito and Justice Scalia were very aggressive and very hostile to Donald Verrilli, the solicitor general, who was challenging the law. Clarence Thomas, as is his custom, didn't answer any questions, but his views are usually in line with Scalia's and Alito's.

So the question is, what will Roberts and Kennedy do. As Pam mentioned, Kennedy, several times, raised the argument, what does this mean for the states? And, to be honest, that's a little mystifies what that means, how that would cut in favor or in opposition to the law. And as for John Roberts, you know, I go to a lot of Supreme Court arguments. I have never seen him so silent during an oral argument. He didn't want to give much away. He asked a question at the very end, but that was really about it. And his views, I think, are pretty mysterious at this point. BANFIELD: OK. Well, if -- I never expected that he was going to be the

linchpin three years ago, the first time around in the decision that ultimately went the government's way. But if we're back to having Anthony Kennedy, the guy who ultimately is the most powerful man on the court because he's the swing vote, did you feel him swing one way or the other or was it that wishy-washy, I see both sides kind of questioning?

TOOBIN: No. I mean the thing about Justice Kennedy is, he is not wishy-washy. He tends to go very strongly in one direction or the other. There were several questions towards the end of the oral argument for Solicitor General Verrilli that indicated I thought, on the part of Justice Kennedy, some real hostility to the Obama administration's position, to the argument that the statute is -- can be fairly interpreted to allow subsidies on the federal exchanges. He seemed to be suggesting -- and I don't want to over read into this, but he seemed to be saying, look, if that were the case, they should have said it more directly.

So, you know, Kennedy's vote, I would definitely not put clearly in one camp or the other. Roberts, almost entirely a mystery. The other six justices, four in favor of the law, two against the law, I'd say those seem pretty set. But it's hard to predict.

BANFIELD: Hard to predict. I still keep coming down to these four words, though, "established by the state," and how Donald Verrilli has described this as a term of art. So we will see how artful the justices decide to be with this one.

Thank you to both of you. I know that's quick work, running down onto the steps with all the noise behind you, but this will be exciting, as always. You're hired for June when we hear what the answer is.

TOOBIN: We'll be here.

BROWN: Sounds good.

BANFIELD: Thank you, Pamela. Thank you, Jeffrey.

BROWN: Thanks.

BANFIELD: All right, coming up, the federal government's been hard at work -- yes, I know, you don't often hear that. But you know something, the Department of Justice has been and the report is written. The i's are dotted, the t's are crossed and the decision is this, the Ferguson Police Department has not been behaving accordingly. How bad is it? After the break, you're going to see the math and why black people in Ferguson are probably very justified at being angry.

(COMMERCIAL BREAK)

BANFIELD: It is day one in the death penalty trial for Boston Marathon bombing suspect Dzhokhar Tsarnaev. Opening statements beginning this morning. The prosecutors recounting the horror of April 15, 2013, nearly two years ago. And even the defense admitted it was him. That's why you get that picture pointing.

At the heart of this case, three young people, spectators who were just near the finish line and who lost their lives because of it. Twenty-nine-year-old Krystle Campbell, 23-year-old Lingzi Lu, and little Martin William Richard. He was just eight years old. Sean Collier, the MIT police officer who was killed in the manhunt. And then, of course, there are the hundreds of other victims whose lives were forever changed that day.

So much to revisit. So let's turn to Deb Feyerick with a look back at the timeline of all of those events.

(BEGIN VIDEOTAPE)

DEBORAH FEYERICK, CNN CORRESPONDENT (voice-over): Right near the marathon finish line on a holiday Monday in Boston, two explosions 12 seconds apart.

RICK DESLAURIERS, BOSTON SPECIAL AGENT IN CHARGE: It was a scene of utter devastation and carnage down there.

FEYERICK: The homemade bombs kill three people, shrapnel tears through more than 200 spectators. Rick DesLauriers ran the FBI's Boston office.

DESLAURIERS: We were collecting pieces of shrapnel that had been contained inside the bombs. Pieces of the pressure cooker bombs. Pieces of the backpacks.

FEYERICK: Day three, a break in the case. Of the more than 12,000 images and surveillance videos from businesses and spectators, a man in a white ball cap at the second blast site.

DESLAURIERS: He places that backpack down on the ground, sliding it off his shoulder, and stands and mills around. A short time later, maybe 15 minutes later, he makes a cell phone call. Very shortly thereafter, you hear the first bomb go off.

FEYERICK: Day four, the FBI asks the public for help finding two men, later identified as Tamerlan and Dzhokhar Tsarnaev, now on the run. Officials say the brothers execute MIT Police Officer Sean Collier, carjack an SUV and get into a shootout with police. Watertown Police Chief Ed Devaau says 26-year-old Tamerlan Tsarnaev is shot but manages to reload about four times.

CHIEF EDWARD DEVAAU, WATERTOWN POLICE: He runs out of ammunition and throws his gun at my sergeant and he starts to run.

FEYERICK: Officers tackle Tamerlan. His brother tries to scatter police to free him.

DEVAAU: He drags his brother down. He's lodged underneath the stolen SUV and he smashes into one of our cruisers.

FEYERICK: By sunrise Friday, millions in the Boston area are in lockdown. When it is lifted that night, a resident calls 911. The suspect is hiding in his boat.

FEYERICK (on camera): He's got a sniper's rifle pointed right at his head -

DESLAURIERS: Yes. Yes.

FEYERICK: Because he was still a threat. You didn't know.

DESLAURIERS: He was still a threat. We didn't know if he had bombs on him.

FEYERICK (voice-over): After a tense standoff, Tsarnaev surrenders. At the hospital, he is questioned by FBI interrogators then read his rights.

(END VIDEOTAPE)

BANFIELD: Busloads of people who were injured in the bombings have arrived for this trial. A case that is going to be very difficult for so many people to hear, especially the people I'm about to tell you about. These are the jury members, 10 men and eight women and six of them are alternates. And if Tsarnaev is convicted, they will also have to decide whether he lives or whether he dies for the crimes.

Juror 229 used to be a social worker but quit to take care of her children. And when she was asked if she was in favor of the death penalty, this is what she said. I'm going to quote her. "If you asked me this question 20 years ago, I would have said definitely not. Sometimes bad things happen out there and there needs to be some consequences."

Move on to juror 286. Now, that person's a general manager at a restaurant. And she said, quote, "I don't feel like I am sending someone to death or life in prison. Their actions got them there. I'm following the law."

Deb Feyerick is live outside the courthouse in Boston and she's been in the courtroom. And also joining me is CNN commentator Mel Robbins in Boston and CNN legal analyst Paul Callan here, live with me in New York.

Deb, first to you. Take me to Boston and take me inside that federal courtroom where they do not allow cameras to broadcast what happened live. You have to be my eyes and ears. What was that like?

FEYERICK: Well, it was really interesting. Dzhokhar Tsarnaev sitting there, flanked by his defense attorneys, where the media's in the middle. To the left of us is a number of victims, about four rows worth of victims, including the parents of eight-year-old Marty Richards, who bled to death because of the bomb that was allegedly detonated by Dzhokhar Tsarnaev. On the right of us are people who are there to support Dzhokhar Tsarnaev. No family members, but people who definitely come out in favor of him.

During the opening statements he sat really at attention, listening to what both sides were saying. During the first witness, who's on the stand now, he seemed to lose interested and sort of slouched in his seat. He's wearing a dark suit, white shirt. And he sort of - he looks disheveled.

But what I can tell you, it's very interesting, Ashleigh, the victims really featured prominently in the openings of both the prosecutors and also the defense. The prosecutors describing how the three who died at the marathon simply bled to death and Dzhokhar Tsarnaev, meanwhile, had slipped away and was at a Whole Foods buying milk while paramedics were trying to save the lives of so many of the people who were injured.

But then we heard from the defense attorneys and this was incredible. They almost seemed to jump past the guilt phase to the sentencing phase. They also talked about the victims, the lives that were taken, the grief, the loss. But they said that this was the act of two misguided brothers, a senseless act, and the defense attorney saying it was him.

The big question, why? Why did they do this and who was the ringleader? And that's really what this case is going to be about. Whether it's him and Tsarnaev, the older brother, they say who bought the pressure cookers, bought the bb's, bought the gun, did everything, really was this self-radicalized one and the younger brother followed. And that's really what this case is going to be about for the next couple of months, Ashleigh.

BANFIELD: Let me turn to Mel Robbins for a moment in Boston.

Look, you've been living this for the last couple of years. You know what the community feels, what they're thinking. You've got your finger on the pulse of this. Ultimately, though, is this case going to come down to the whodunit kind of arguments in that courtroom, or more the mitigation of, please don't kill our client?

MEL ROBBINS, CNN COMMENTATOR: You know, Ashleigh, good afternoon, it's an excellent question. And the defense counsel was brilliant this morning by turning in front of that jury in opening statements and saying, he's guilty, he did it. And what that does is two things, Ashleigh. It basically makes the jury immediately in a weird way trust defense counsel because they're not expecting it and it's exactly what's on everybody's minds. And secondly, it takes the focus off of whodunit and puts the focus on, huh, why and what does this mean in terms of punishment? Do we kill him or do we sentence him to life in prison without the possibility of parole where he will die, Ashleigh?

BANFIELD: So then ultimately, Paul Callan, walk me through how you technically conduct a trial like this? Do you spend a whole bunch of time on the guilt/innocence phase to lay out foundations for everything else that you're going to bring in later, or do you get through the guilt/innocent phase and beg and beg and beg and plead and mitigate, mitigate, mitigate once you get to the guilt phase - or, rather, the life/death phase?

PAUL CALLAN, CNN LEGAL ANALYST: You know, with that opening statement this morning, the jury's going to be looking saying, what are we wasting our time on? BANFIELD: What do we do now?

CALLAN: Isn't it time for sentencing? I think, however, you're going to see the prosecutor wanting to spell out in great detail the horror of this crime because it's really a factor in the death penalty portion of the case. The more horrific the crime, the more planning that went into it, the more callous the behavior, the more reason prosecutors can ask for the death penalty.

BANFIELD: So do you think then one of the key pieces of evidence that will prominent - will be featured prominently then is the blood- scrawled message in the boat where they got this guy? And I just want to re-read it for everybody. It's just a portion of it, but it's the most telling portion. The - and this is Dzhokhar Tsarnaev's words in blood as he's - well, he thinks he's dying, but they ultimately got him alive. "The U.S. government is killing our innocent civilians, but most of you already know that. As a Muslim, I can't stand to see such evil go unpunished. We Muslims are one body. You hurt one, you hurt us all. Now, I don't like killing innocent people, it is forbidden in Islam, but due to said," and it's unintelligible what he says next, "it is allowed. All credit goes" and the rest is unintelligible.

That sort of speaks to, I meant to do this. I had a reason. It wasn't my brother telling me to do it, it was my god.

CALLAN: In some ways, that could be the most important piece of evidence in the entire trial, which is why prosecutors are trying to actually bring a piece of the boat in -

BANFIELD: To show them.

CALLAN: To show them the statement. And why do I say that? Because it turns this from an ordinary crime into almost a military operation in which civilians were deliberately killed. And even people who oppose the death penalty in Massachusetts might say, you know something, in a case like this, this is the one case I'd make the exception and vote for death. And I think that's the message that prosecutors are trying to convey in the way they try the case.

BANFIELD: All right, well, we're just at the beginnings of it. Just opening statements, but a lot more to come. Paul Callan, thank you.

CALLAN: Thank you.

BANFIELD: Mel, as always, thank you. And Deb Feyerick, I know you have a lot of work to get back in the courtroom to cover, so thank you for coming out to share the openings with us.

Coming up next, an extremely encouraging progress report you might say in the war against ISIS. And "Jihadi John" in his own words. The man you've heard speak before, well, he's been doing a lot of talking before he got on these tapes. Hear what he said years ago, next.

(COMMERCIAL BREAK)

BANFIELD: We are hearing some new audio recordings of ISIS terrorist Mohammed Emwazi. You may know him better as "Jihadi John." In the recording that was released by the Muslim advocacy group CAGE, Emwazi is heard denying that he is an extremist. CNN's Miguel Marquez has the highlights from this interview that CAGE conducted with Emwazi six years ago.

(BEGIN VIDEOTAPE)

MOHAMMED EMWAZI: I said, wow these must be some serious questions. Let's get down to it.

MIGUEL MARQUEZ, CNN CORRESPONDENT (voice-over): The voice purportedly of Mohammed Emwazi, a.k.a. "Jihadi John," from a 2009 interview with the British Muslim advocacy group, CAGE.

EMWAZI: I looked at him, face to face now, and then he looked at me and said, Mohammed, I said, yes.

MARQUEZ: Distinctly different from the swaggering, foreboding voice as he threatened world leaders and apparently murdered in cold blood innocent westerners in Syria.

EMWAZI: Obama, you have started your Arab bombardment in Shem (ph), which keeps on striking our people. So it's only right we continue to strike the necks of your people.

MARQUEZ: How is it Kuwaiti-born, British-raised Emwazi went from a good upbringing, education and background to such extreme radicalization?

EMWAZI: And I don't think - I don't believe and I'm told in everything that's been happening is extreme, anything, the bombs or whatever that have been happening are all from extremists.

MARQUEZ: Even pictures of Emwazi tell a story. This one, a gawky college student at Britain's University of Westminster from the mid 2000, to this one of him in Kuwait in 2010, and then to this, a murder who despite hiding his face and disguising his voice is now exactly what he claimed he wasn't when being interviewed by Britain's security service MI5 in 2009.

EMWAZI: I told him, this is how Islam is. I told him we don't -- we don't force anyone to come into - into religion. You know, everyone's got their own right.

MARQUEZ: During that 2009 interview, Emwazi said he thought both 9/11 and the 77 bombings in London were extremist behavior and wrong. But whoever was interviewing him from MI5 wasn't buying it, further angering Emwazi.

EMWAZI: I said, after what I just told you, after, you know, I told you that what's happening is extremism this and that and you're still suggesting that I'm an extremist. And he said, yes, well - and he just started, you know, going on forcing - trying to put words into my mouth.

MARQUEZ: Miguel Marquez, CNN, New York. (END VIDEOTAPE)

BANFIELD: Emwazi's father says he is not certain that his son is "Jihadi John," despite several newspaper reports that have him quoted as saying, "my son is a dog and an animal and he can go to hell." For his part, that father says he's suing newspapers that have made that claim.

CNN has obtained court documents that seem to directly contradict the statements that you just heard, though, from Mohammed Emwazi. His U.K. court filings say that Emwazi was part of a radical recruitment network as early as 2007.

I want to bring in Paul Cruickshank, our CNN terrorism analyst, who obtained these documents.

What is in there and what exactly are they?

PAUL CRUICKSHANK, CNN TERRORISM ANALYST: Well, we just obtained these administrative court documents from the U.K. In it, the British government says that Emwazi was part of the radical recruitment network as early as 2007. They were wanting to try to send people to Somalia to join the terrorist group al Shabaab or al Qaeda over there. The document also says that several of his associates actually traveled to Somalia and were trained by al Qaeda there in 2006 and the al Qaeda operative there persuaded them to return back to the United Kingdom to create this recruitment and facilitation network. The key al Qaeda operative in Somalia was Fazil Mohammed (ph). Now he was found dead in Mogadishu in 2011 with blueprints for an attack against the U.K., against the Dorchester Hotel, against Eaton College, against the Rif (ph). So this guy had some very interesting connections in the U.K. and was part of this radical recruitment network.

BANFIELD: So that's all fascinating except for the part that the document you've got is not about "Jihadi John." It is about a colleague of his. The claims that are made within those documents, they refer to him as a colleague, but they don't make any specific -- what I'm trying to get at is that it seems that "Jihadi John," through some representative, has suggested he was turned into a radical because of the treatment by the government as opposed to the government had a good eye on this guy because he was bad all along.

CRUICKSHANK: Well, and these documents tend to contradict that notion. They suggest that when he traveled to Tanzania in August 2009 he was already part of this radical network, this very serious radical network in the U.K., recruiting for al Shabaab in Somalia, for al Qaeda in east Africa. Serious enough to be named in these court documents, somebody that was meeting with these guys a lot, who were deeply involved.

One of his friends actually joined al Shabaab, became a very senior operative in al Shabaab and was killed in a U.S. drone strike there in 2012. And this network by 2011, 2012, they pivot away from Somalia and they start focusing on Syria. It's the new cause celeb (ph) for all these radicals in the U.K. And around 2013, Mohammed Emwazi, "Jihadi John," is believed to have traveled to Syria to join ISIS there. BANFIELD: It is just fascinating reading and it's great you got your

hands on it. it certainly does shed some more light on this very mysterious and deadly death cult.

Thank you, Paul Cruickshank.