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Legal View with Ashleigh Banfield

War Request Debated in Congress; Military Crash of Blackhawk Helicopter; SAE Members Apologize; GOP Letter and Logan Act

Aired March 11, 2015 - 12:00   ET

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


ANNOUNCER: This is CNN breaking news.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield and welcome to LEGAL VIEW.

Our breaking news is out of Washington. Some very intense exchanges in the Senate in a hearing over President Obama's request to authorize military force against ISIS. This is a request that he made a month ago. And three of the nation's top national security officials are currently on Capitol Hill and testifying live. The secretary of state, John Kerry, is there. He is also joined by Defense Secretary Ashton Carter and also General Martin Dempsey, the chairman of the Joint Chiefs of Staff. Military operations are indeed already happening against ISIS, but the president wants a formal authorization. And neither Republicans nor Democrats seem to be fully on board.

I want to bring in CNN's senior Washington correspondent Joe Johns.

Joe, this hearing may have been set up for the authorization for military force, but they seem to be covering are whole lot more ground than just that.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: That's absolutely right, Ashleigh. A lot of skepticism too on the Republican side, as expected. While this hearing is about the administration's proposed language for an authorization of military force against ISIS, the top three administration officials who are testifying have been getting a lot of questions about the larger regional chessboard, if you will, and the spillover effects, especially how it could relate to Iran, which has been expanding its military and political influence in the region. Listen to Senator Marco Rubio in this exchange with the secretary of state.

(BEGIN VIDEO CLIP)

SEN. MARCO RUBIO (R), FLORIDA: That I believe that our military strategy towards ISIS is influenced by our desire not to cross red lines that the Iranians have about U.S. military presence in the region.

JOHN KERRY, SECRETARY OF STATE: Not (INAUDIBLE). No. Absolutely not in the least.

RUBIO: OK. Well, let me ask you this. KERRY: There's no consideration whatsoever as to how they or anybody else -- we will do what is necessary in conjunction with our coalition. Remember, we have 62 countries --

RUBIO: OK.

KERRY: Including five --

RUBIO: Well, I want to talk about that coalition.

KERRY: Five Sunni countries that for the first time ever are engaged in military action in another country in the region.

(END VIDEO CLIP)

JOHNS: There are also real questions whether the administration's narrowly tailored proposal for use of force against ISIS over the next three years sends the wrong message because it's not enough time and because it calls for a very limited use of boots on the ground. Secretary of State Kerry was arguing that the proposal is intended to get a big unified vote in the Congress. But there are enough differences on the opinion of the proposal to say for now a big vote in favor appears in doubt, Ashleigh.

BANFIELD: All right, Joe Johns working Capitol Hill for us, thank you for that.

And another breaking story that we're working on this hour, it is the worst possible outcome from a U.S. military helicopter crash in Florida. Officials were hoping that at least one or some of the Army and Marine Corps personnel on board that chopper survived. But the story is that it doesn't look likely now. This happened in the Gulf of Mexico, right here off the Florida panhandle. It was an Army Blackhawk helicopter that crashed. The Pentagon now confirming that search crews have found pieces of the aircraft, but also human remains.

(BEGIN VIDEO CLIP)

MIKE SPALTS, ELGIN AIR FORCE BASE SPOKESMAN: We have found some debris from the aircraft. The fog is obviously hampering the recovery efforts. And that's where we're at right now.

(END VIDEO CLIP)

BANFIELD: Our Victor Blackwell is live in Hammond, Louisiana.

So, Victor, update me on the latest to find the 11 missing service members and then also what led to this.

VICTOR BLACKWELL, CNN CORRESPONDENT: Well, Ashleigh, even with that tragic development of the discovery of human remains, a spokesperson there at Eglin Base there says that this is still an active search- and-rescue scene. So they are still working to find hopefully people who are still alive there. They say the Coast Guard has secured the waterways. Although overnight and into the morning, fog has hampered the search. And they're looking at that fog and quote/unquote "weather issues" overnight during this training mission to see if that was a contributing factor to this accident.

They've not yet determined what caused the accident, but what they know so far, at least what they're making public, is that about 8:30, one of two Blackhawks that are based here at the Louisiana Army National Guard was reported missing. Eleven people on board. Seven Marines from Camp Lejeune in North Carolina, four crew member, two pilots, two crew members from this station here were reported missing.

We're told that next of kin of the four members of the Louisiana Army National Guard have been notified that they're missing, although those names will not be made public. We're told also that at 3:00 p.m. Eastern today, the Louisiana National Guard will hold a news conference to update everyone on the very latest on the search and how they are dealing with those families.

A spokesperson also says that it's not unusual for these joint missions, these joint training missions to happen in fog or in different types of weather. They're still trying to figure out if indeed, again, weather was a contributor to this accident, Ashleigh.

BANFIELD: All right, our Victor Blackwell live for us. Thank you for that.

This took three days but we are finally getting an apology from one of those students in that bus video, that video where kids are happily singing away, fist-pumping a vile racist chant now seen throughout the country. I guess you could argue at least he came forward. A second student seen in the video did not apologize himself, but his mom and dad did it for him. Nick Valencia is live in Norman, Oklahoma, the scene of the university.

So, Nick, a little bit more about these apologies. What exactly are these students saying, either themselves or through proxies?

NICK VALENCIA, CNN CORRESPONDENT: Well, Ashleigh, both are saying that they're sorry, but choosing it to do in -- do it in two different ways. First to Parker Rice. He's one of those 19-year-olds that was identified in the video as the leader of that unspeakably bigoted racist chant that surfaced over the weekend. Part of that statement reading, "I am deeply sorry for what I did Saturday night. It was wrong and reckless. I made a horrible mistake by joining in to singing and encouraging others to do the same. On Monday, I withdrew from the university and sadly, at this moment, our family is not able to be in our home because of threatening calls, as well as frightening talk on social media."

He goes on to say, Ashleigh, "I know everyone wants to know why or how this happened. I admit it was likely fueled by alcohol consumed at the house before the bus trip, but that's not an excuse. Yes, the song was taught to us but that too doesn't work as an explanation."

And on that note, a founder of the fraternity chapter here of SAE, Sigma Alpha Epsilon, says that that song wasn't around when this fraternity was founded, so a little bit of conflicting information there from that statement. We'll go on to read Levi Petit. He chose to release a statement

through his parents and this is what they said on the behalf of their son, saying, "as parents of Levi, we love him and care for him deeply. He made a horrible mistake and will live with the consequences forever. However, we also know the depth of our son's character. He's a good boy, but what we saw in those videos is disgusting. While it may be difficult for those who only know Levi from the video to understand, we know his heart and he is not racist."

So two very different explanations. One could be seen as an excuse. The other saying that they're sorry for what they did. Some people here on campus though saying that these two are just sorry that they got caught.

Ashleigh.

BANFIELD: And curious that one of the students said that he withdrew on Monday, but there were two expulsions on Tuesday.

VALENCIA: That's right.

BANFIELD: So I'm a little confused as to what the real story is there.

But beyond that, what is the story on campus? All of the kids there who are living through this right now, what's the reaction there?

VALENCIA: Well, the reaction has been strongly condemnation. I asked a variety of students here on campus shortly after we broke the news on CNN that those students -- two students had been expelled, I asked them, you know, what do you think about the decision by the university president, David Boren? Here's what they told me.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I think that's a great thing for the university to do. I think it's really good that the president is showing a strong support.

UNIDENTIFIED MALE: I'm a proud student.

VALENCIA: Even after seeing that video?

UNIDENTIFIED MALE: Absolutely, because I know it doesn't speak for the entire student body. That's just some microbial infestation that's on campus.

UNIDENTIFIED MALE: I did watch the tape and I watched it as it was going viral and I was just like, oh, no, you know? It sucks because I'm graduating in May and I feel like I'm probably going to have to explain this when I move.

(END VIDEO CLIP)

VALENCIA: Now, as of Tuesday on midnight, SAE was officially closed. Those doors shuttered. The university president going on to say that as long as he has tenure here, that SAE will have nothing to do with the university so long as he has something to say about it.

Ashleigh.

BANFIELD: And, Nick, it will be interesting to see if there are any further actions taken. There was a busload of students.

VALENCIA: That's right.

BANFIELD: It wasn't just two singing, it was a lot. Nick Valencia working the story for us live, thank you for that.

By the way, this morning, Jonathan Davis, if you don't know that name, he's an alumnus of the SAE chapter at the University of Oklahoma. Yes, it is the same fraternity. And he spoke to our Michaela Pereira on "New Day." He was the first African-American to be admitted to the fraternity since 1994. And he said that the expulsion is the right way to go for the school.

(BEGIN VIDEO CLIP)

JONATHAN DAVIS, UNIVERSITY OF OKLAHOMA SAE ALUMNUS: The amount of hatred in those words, I think that, you know, if you -- and I feel for the African-American students at the University of Oklahoma. My heart is really broken particularly for them because these are -- they're people that are -- this is someone that's their peers. And he's literally just jovially referring to the cold-blooded murder of African-Americans through lynchings. And that is why this is so extremely offensively.

(END VIDEO CLIP)

BANFIELD: What may be especially striking, though, is that Davis says what happened on that bus was not reflective of his experience when he was a brother at SAE.

(BEGIN VIDEO CLIP)

DAVIS: I never felt excluded in that house. And when I went through rush, you know fraternity rush is, you know, the -- I guess the first week of school for men and they do it in the evening time. They walk around to each one of the fraternity houses on the campus. And to be honest with you, SAE was the only house that I truly felt comfortable in. I went to houses where I could really feel that sense of elitism there. And I was, you know, led out the back door of those, you know, fairly quickly on. And that's kind of the symbol, you know, for rush that, you know, we don't think you're a good fit here or we don't think you're good enough. And SAE was -- I never once felt that at SAE and I felt -- I saw the diversity there at SAE. And my experience was -- couldn't be any more different than what it's turned into today.

(END VIDEO CLIP)

BANFIELD: Jonathan Davis.

You know, up next, is it right or is it even legal, think it through, for a public university with public money to expel a student for something they say? Because publicly you do have the right to free speech no matter how offensive, ugly or racist it may be. So where does that student on that picture and the other one expelled actually stand legally speaking?

(COMMERCIAL BREAK)

BANFIELD: Two University of Oklahoma students expelled after that disgusting racist video went viral. SAE fraternity members packing up as that chapter and that house shuts down and shutters its windows and doors. A pretty hard lesson, tough lesson, for these young men. Yes, what you can say can be used against you at your job and even at your school. Free speech may save some of you from being prosecuted, but it is not going to save you from other serious repercussions, least of all what your neighbors think of you.

For the legal view on all of this, I want to bring in HLN legal analyst and defense attorney Joey Jackson, criminal defense attorney Midwin Charles, and former federal prosecutor Fred Tecce.

All right, everybody, here's the question a lot of people were asking. The University of Oklahoma is a public institution and it is funded by us, the public. Therefore, doesn't it sort of operate under the public rules, you can say anything as vile as you want but you can't get fired for it or can you extend that to expelled?

JOEY JACKSON, HLN LEGAL ANALYST: You could extend it to expelled and I do believe that the university acted responsibly and appropriately and legally. And here's why. First of all, privilege, not a right, to attend the university. You have no right. They admit you.

Number two, when they admit you, you are bound by the student rules of conduct. Number three, those conducts balance -- that rule of conduct balances your private right to act as you wish against the public right, and that's the students.

Number four, that thing we call the Constitution. Of course we have free speech. Absolutely. But that free speech is limited. And, remember, there's something called the Tinker Test, 1969 Supreme Court decision. And that decision says, Ashleigh, as a public school, in the event that something occurs by manner of speech which impairs or otherwise affects higher education or education in general, the university can act. They did that here. I think they're protected.

BANFIELD: So let me read the Students Rights and Responsibility Code, if I can. It's a little lengthy, but I think it's important for the purposes of this conversation.

"In collaboration with the appropriate university official, the UVPSA, or other appropriate administrative official vested with such authority, has discretion to take various actions under this code for violations of law or university policy. Such actions are separate from civil, criminal, or licensure proceedings that may relate to the same incident. Proceedings under the code may be carried out prior to, simultaneously with or following civil, criminal or licensure proceedings at the digression of the university."

That's all very fancy.

MIDWIN CHARLES, CRIMINAL DEFENSE ATTORNEY: Right.

BANFIELD: But ultimately, Midwin, what does that mean for these two students, if anything?

CHARLES: Well, it means that they are not going to be allowed back into this school. And I think what a code like that does is it insulates a school from liability, right, should there be any legal fallout in terms of anyone suing the schools. This code sort of insulates them. It allows them to act, to protect themselves. But --

BANFIELD: Does it really insulate them, honestly?

CHARLES: It insulates them from liability in the sense where they are allowed to make these kinds of decisions and say, see, look what we did in the face of this -- in the face of this, we acted.

BANFIELD: Ah, now you're talking about what we talked about yesterday.

CHARLES: We acted.

BANFIELD: The president admitted that this was a hostile educational environment that these students created.

JACKSON: Right.

CHARLES: And he was correct.

BANFIELD: And now you're saying that he's insulated himself by doing those actions by expulsions, is that right?

CHARLES: Right. What I'm saying is, yes, he's -- they have protected themselves and shielded themselves. Codes like that, a lot of universities have them throughout the country and they allow them to act against students, for example, who commit violence against women, who rape women and are still waiting for the legal system to sort of work itself out.

BANFIELD: Fred --

CHARLES: But also the school needs to be able to act and let the world know --

JACKSON: Right.

CHARLES: That this is unacceptable at their university.

BANFIELD: He's shaking his head. He's shaking his head. So I want to put this to.

JACKSON: Tell us how it really is.

BANFIELD: Yes, tell me how Title 6 fits into all this.

FRED TECCE, FORMER FEDERAL PROSECUTOR: Look -- BANFIELD: Because the Department of Justice could have come back and said, look, you are prohibited from discriminating on the base of race, color, national origin in programs and activities receiving federal financial assistance period.

TECCE: Right. And Title 6 applies to the university, because the university can't do all those things. Look, I find what these people did absolutely repulsive. And I'm not trying to defend them in any way, shape or form. But what I am going to defend is the First Amendment of the United States Constitution. And they can act right up until the point where they violate these people's constitutional rights.

Look, adversity, Ashleigh, doesn't build character, it reveals character. And how closely we embrace the First Amendments and the amendments of our Constitution in light of conduct -- those guys, I'd like to take them out behind the fraternity house and beat the living daylights out of them for what they did, OK? And I -- and nothing I should say --

BANFIELD: So does that football player, by the way, who went online that night to say --

JACKSON: Yes.

BANFIELD: How dare you come to my football game and shake my hand and hug me and bro me up because you destroyed it for everybody else like you.

TECCE: Right. Right. Right.

JACKSON: Absolutely.

TECCE: What they did was nothing short of repulsive. But the question -- and there is case law about this. In George Mason University, a couple of years ago, throughout a fraternity house, for doing very similar type conduct, albeit not as bad. And the Fourth Circuit Court of Appeals, the trial court held for the fraternity house, which had been thrown off campus. The Fourth Circuit Court of Appeals, which is in Richmond, held that the First Amendment protects the speech and that the university, albeit acting properly, had violated their First Amendment rights.

JACKSON: Two quick points, Ashleigh.

BANFIELD: Real quickly. We've got to wrap it up.

CHARLES: Yes.

JACKSON: Two quick, two quick points.

CHARLES: Yes, and I have one, quickly.

JACKSON: The first -- the first point is thusly. Number one, I understand that case. There's a distinction in that case. It was about public conduct. It was entertainment. This is private conduct that humiliated people in the public domain.

TECCE: Still First Amendment.

JACKSON: Number two, when you deal with First Amendment --

CHARLES: And also inside environments (ph).

JACKSON: When you deal with First Amendment, it's a balancing test. You have individual rights. But those -- if those rights impede or otherwise impair the collective rights, the company, or in this case the university, can take action. I think they're protected.

BANFIELD: You know what happens also --

CHARLES: I think so too.

BANFIELD: The free market kicks in because I dare --

TECCE: Right.

BANFIELD: I dare say, I do not think these two students are going to challenge and want to come back to this campus. You know --

TECCE: Well, not if they're smart. Discretion is the better part of valor.

BANFIELD: I've got to wrap it up there.

TECCE: They should do it. You asked me about what their legal rights are.

BANFIELD: There you go. Yes.

TECCE: Whether they exercise them is a different story.

BANFIELD: Yes, there's moral rights. And, you're right.

CHARLES: Exactly. Exactly.

TECCE: Correct.

BANFIELD: All of you, all of you, thank you so much, I appreciate it. Joey and Midwin and Fred, stick around.

Angry reaction from the secretary of state, John Kerry, just moments ago to the Senate Republicans' letter that they sent to Iran. A letter that could undercut talks on a nuclear deal. Are they traitors though or are they defenders of the Constitution? That answer could come down to something from the 1700s. A little special act that we started the conversation on yesterday, the Logan Act, well, we're going to finish it today.

(COMMERCIAL BREAK)

BANFIELD: Today, the Obama administration is strongly pushing back against that letter that was sent by 47 Republicans addressed to the leaders of Iran. That letter is warning those leaders in Iran that any nuclear deal they may decide to make just might expire when President Obama leaves office. For his part, the secretary of state, John Kerry, says that kind of move to undercut negotiations is unprecedented.

(BEGIN VIDEO CLIP)

JOHN KERRY, SECRETARY OF STATE: My reaction to the letter was utter disbelief. During my 29 years here in the Senate, I never heard of nor even heard of it being proposed anything comparable to this.

(END VIDEO CLIP)

BANFIELD: Well, at the heart of the issue is something called the Logan Act. If you haven't heard of it before, well, you're not alone. Tom Foreman knows about it and as he's about to explain, it's a law designed to keep you and me, private U.S. citizens, from intruding on foreign policy. But it isn't used very much.

(BEGIN VIDEOTAPE)

TOM FOREMAN, CNN CORRESPONDENT (voice-over): A New York paper is calling some Republicans traitors.

UNIDENTIFIED MALE: And this is serious stuff.

FOREMAN: Those Republicans are defending their actions.

SEN. TOM COTTON (R), ARKANSAS: This is ultimately about stopping Iran from getting a nuclear weapon.

FOREMAN: And all over D.C., critics are talking about the Logan Act.

FOREMAN (on camera): What on earth is the Logan Act? Well, it is a relic of history. A law that grew out of a spat between the United States and France way back in the late 1700s. Cue the fife music.

FOREMAN (voice-over): President John Adams' Federalist Party wanted war, but a Pennsylvania doctor named George Logan traveled to France and brokered a deal to stop it. The federalists were furious and passed the Logan Act to make such freelance diplomacy punishable by fines and prisons. And accumulations of violations have appeared ever since. Over Richard Nixon's dealings with Vietnam, Jesse Jackson's talks with Russia, Nancy Pelosi's 2007 trip to Syria and not a single case has ever amounted to anything.

FOREMAN (on camera): Still, on a White House website, tens of thousands of people have signed a petition for an investigation, convinced Republicans are now illegally interfering with foreign policy by sending a letter to Iran's leadership. But they probably should not expect much.

FOREMAN (voice-over): After all, in 2008, candidate Barack Obama chatted with the Iraqis and guess what Republicans hollered about? Yes, the Logan Act.

Tom Foreman, CNN, Washington. (END VIDEOTAPE)

BANFIELD: Oh, yes, Washington. The Justice Department, by the way, is declining to comment on the Logan Act, but a federal law enforcement official did tell CNN something. "This is a political issue, not a legal issue," end quote.

Coming up just ahead, Dzhokhar Tsarnaev sitting silently in a federal courtroom as jurors look at him and simultaneously watch videos of him planting a bomb. But the words that they saw scribbled on the side of a boat in his bloodstained, bullet-riddled manifesto, is that what just might convince them whether he should live or die?

(COMMERCIAL BREAK)