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Legal View with Ashleigh Banfield

Drone Strike Kills Hostages; Latest on Baltimore Police Custody Death Investigation. Aired 12:30-1p ET

Aired April 23, 2015 - 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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[12:34:15] ASHLEIGH BANFIELD, CNN HOST: We're follow major breaking news this hour of the United States strikes in the border region between Afghanistan and Pakistan back in January, those strikes claiming the lives of two innocent hostages, one American and one Italian but those strikes also killing two high value Al-Qaeda targets, who also happen to be Americans. They are Ahmed Farouq, an Al-Qaeda leader, and Adam Gadahn, a spokesperson, propagandist for Al- Qaeda.

The White House statement announcing their death read this way, "While both Farouq and Gadahn were Al-Qa'ida members, neither was specifically targeted, and we did not have information indicating their presence at the sites of these operations."

[12:35:05] I want to talk about whether these deaths were really accidental and whether that matters with CNN Legal Analyst Paul Callan.

I am brought back to 2011, September and the drone strike that killed Anwar al-Awlaki, an American citizen Al-Qaeda leader in Yemen, and a lot noshing of teeth and flailing arms about the ability of the United States government to go after a United States citizen they believe to be doing bad things. But not giving them the right of a trial or due process.

Is this one any different when they say, "Oh, it just was an accident. We didn't know they were there."

PAUL CALLAN, CNN LEGAL ANALYST: Well, if being an accident makes it very, very different because if it's an accident, it's not a willful intentional killing of an American citizen. It's like a car accident and that's not a crime. But the government...

BANFIELD: But you don't ram your car into building.

CALLAN: No, but as long as you aren't aiming at killing these individuals, the U.S. government will say this is not a targeted killing of an American. Now, they're very worried about it because Ashleigh as you said, the U.S. constitution says you can't take the life of an American citizen or the liberty of an American citizen without due process.

And if you order a drone strike to kill him because he's an Al-Qaeda operative, aren't you taking his life without due process? So they're worried about this.

Secondly, there is a federal statute that was passed in recent days that says if one American kills another American abroad, the U.S. courts have jurisdiction so they have to...

BANFIELD: You need to bring them home and try them for that killing?

CALLAN: Well, that's right.

BANFIELD: And what you're saying is if an American is operating the gadgets to get the drone to drop the ordinance to kill the American, that person could be actually liable or responsible?

CALLAN: In theory he could or an American member of the military engage in special operations who kills an Al-Qaeda operatives who is an American, could he be brought back to the United States.

Now, the justice department says absolutely not. This is legal.

BANFIELD: It's a white paper. We've never even seen the official memo that was released, you know, back right before September of 2011 when al-Awlaki was taken out. It was a paper from the DOJ, Department of Justice, to the Obama administration effectively saying it's OK to kill a U.S. citizen if you determine that target to be a "Senior operational leader of Al-Qaeda or an associated group, and does this person posses an imminent threat to United States." There's some other -- there's some a lot of other issues in that.

CALLAN: And capture is not feasible and he must be killed according to the international rules of war. All of those things are built into the Department of Justice memo.

BANFIELD: Is this just easier to say it's an accident, I never want to assume our government is not telling us the truth. But I'm no pollyanna either, and that if, if it's an accident and this are collateral death. And I'm not saying the hostages, I'm saying those Al-Qaeda members who happen to be American, if those are collateral death, no issues.

CALLAN: No issues because there's no criminal activity. It wasn't intentional. So they're in much better shape if this was an accidental death as opposed to an intentional killing. Now, even if it was intentional if they have researched that they knew were there and they knew they're a threat to the U.S., under at least the Department of Justice's interpretation, it still might be legal but it gets very touchy.

BANFIELD: Under the memo, I mean listen, it was not loss on any of us when the president during his live address that this was a mistake.

So Paul Callan, thank you for that. I knew you'd have some answers as well.

Coming up, a high risk air strike flawed intelligence, all of that adding to this strategy. Could United States forces on the ground have prevented this? (COMMERCIAL BREAK)

[12:41:56] BANFIELD: I want to get you back into the breaking news coming out at the White House this morning.

Two innocent hostages killed in a U.S. counter terrorism operation, targeting an Al-Qaeda compound in the boarder region between Afghanistan and Pakistan. It is safe to say that anytime the U.S. military operation kills two innocent hostages and probably did not go according to plan.

But what was the exact plan? That still not totally being answered.

Joining me to talk about what went wrong Former Navy SEAL Jonathan Gilliam and CNN Terrorism Analyst Paul Cruickshank.

First Paul to you, who were these two senior Al-Qaeda operative, Adam Gadahn and Ahmed Farouq?

PAUL CRUICKSHANK, CNN TERRORISM ANALYST: Well Adam Gadahn was an American convert to Islam who in 1998, three years before 9-11 travels to join Al-Qaeda in Pakistan. And then he'd traveled across the border into Afghanistan.

He was there at the time of 9-11, he rose through the ranks to become the chief English language propagandist for Al-Qaeda somebody encouraging the lone wolves in the west to launch attacks. In one statement, one recording in 2011, he ask American extremist to go gun fairs to buy guns and shot at fellow Americans.

BANFIELD: So a key cog in the wheel if you're talking about what the Americans thought of him and whether they thought he was important.

CRUICKSHANK: A key cog in the wheel, somebody who was very institutionally involved within the terrorist network, when the Navy SEALS went in to above of that they found all sorts of letters from Adam Gadahn showing that he was very involved in the organization.

With Ahmed Farouq, and so recently we didn't know he was an American, we knew he was killed in a drone strike in January. That was well reported at that the time somebody he was the deputy leader of Al- Qaeda in Indian subcontinent.

But up till today, everybody who thought that he was Pakistani that's how it was reported. So we're not finding out that apparently he had an American passport that's news to me...

BANFIELD: So when we showed the split screen of these two leaders, one of them didn't have any image and that's often the case. So and that brings me to you Jonathan. As a former Navy SEAL there is so much that goes on that we don't know. There is so much on the ground that goes on. And I'm just trying to get some perspective on what might have been the Americans involvement somewhere on the ground or our allies somewhere on the ground going in to this strike and then of course coming out to find out who it was, we actually killed. JONATHAN GILLIAM, FORMER NAVY SEAL: Well let me, I brought this piece of paper here to show you how intelligence works. So if you roll this up right here and if took you into a room and turn off all the lights you never been in this room before. And all you could do is look through this piece of paper right here.

So you're looking through this, I turn the lights on. All you see through this is all the information that you're going to get. Intelligence is like that. So the more of these eyes that we have inside the broader of a picture you're going to have but if you only have one source in a place or if you have, you know, satellites or drones up that are capturing images you may not see exactly who's in there.

[12:45:02] And make no mistake about it this was not a hostage rescue, this was a take out of targeted strike so...

BANFIELD: So, what's about the aftermath? I'm trying to figure out, (inaudible) we don't have DNA confirmation of the death. (inaudible) and I think he won't -- won't we at least have some kind of boots on the ground, some kind of American intelligence to should get some DNA something.

GILLIAM: The best American intelligence that we have are operatives or sources from other countries. So just because we may not have boots on the ground we will have loyal eyes on the ground and that's where we get the majority of our, I would say in missions like this, where we get the majority of our intelligence back after the facts saying this person is dead or this was effects if he was not, that's correct.

BANFIELD: Well there were good sources certainly when it came to Al- Qaeda or Bin Laden I was going to say. I mean that was the kind of intelligence where it was just the guy with the phone.

GILLIAM: Well that was -- when you take intelligence and before hand and you're planning the operation that Bin Laden as suppose to this was a direct mission to get a specific person.

Here it was probably the same thing. But once they get and identify the targets that they want to take out the mission planning starts spinning up.

BANFIELD: And I want to be real clear the president statement, everything that's being given to us by the government today said that this two leaders were not target specifically. What was targeted then, I mean that's always fascinating when you have these buildings that just go boom, what was it that they thought was so important?

To both you thank you so much, Jonathan Gilliam and Paul Cruickshank, appreciate it.

Coming up next the other big story of the day it's in Baltimore where protests are getting bigger and louder over the death and the suspect in police custody.

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[12:50:19] BANFIELD: The protest ramp up earlier than usual in Baltimore today. 11 days after Freddie Gray was dragged into a paddy wagon four days after he died of injuries inflicted under the murkiest of circumstances.

Within the past few minutes, CNN learned that Gray's body has now been turned over to his family. They say that they have plans for an independent autopsy to be conducted.

Baltimore Police Union now said that whatever fractured the previously healthy 25-year old is fine happened "Inside the van" and not on the side walk of the housing project, where Gray was chased down search and arrested.

We now know five of the six officers involved have given statements to investigators and police plan to wrap up their investigation one of four underway at this point by the end of this month.

The Police Commissioner Anthony Batts sat down with our affiliate WGV for his first interview, his first in depth one on the Gray case today. Then he talked about what he sees and what he doesn't see on cellphone videos of Freddie Gray's take down.

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COMMISSIONER ANTHONY BATTS, BALTIMORE POLICE: What I don't know is what happened before that filming. I don't someone put hands on him. I don't know if he jumped over the fence and may have hurt himself or injured himself. What I do know with the little evidence that we had is that when I've looked at these cases before, officers who are out of control remain out of control.

The officers that I saw there were not out of control. They weren't cause of human pain in that filming. And when they lifted him up, they grabbed him under his armpits and they moved in as the best they can.

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BANFIELD: I also, want you to hear Batts thoughts on what happened or didn't happen "Inside the van." It turns out for part of the journey to the police station Freddie Gray was not the only passenger in the van.

(BEGIN VIDEO CLIP)

BATTS: The second prisoner that was picked up is that he didn't see any harm done to Freddie at all. What he had said is that he heard Freddie thrashing about the driver didn't drive erratically wasn't slamming on breaks, wasn't turning corners fast or in a irrational way.

(END VIDEO CLIP)

BANFIELD: Significant. I want to stop here and bring in CNN Legal Analyst and Former New York City Prosecutor Paul Callan on the right and former N.Y.P.D Detective Harry Houck on the left.

OK. To both of you, you just heard the commissioner talking about that second prisoner in the van reporting at least to the commissioner saying that their word is that he was thrashing about it, that Freddie Gray was thrashing about and that van did not jostle them.

Here's what super key that no one is being mentioned and mentioned at this point that there was 17 minutes before that passenger was picked up, which would leave Freddie Gray in that van, in the back of that police paddy wagon for 17 minutes.

Paul isn't there a lot that can happen in 17 minutes when you don't have a witness to give an account?

PAUL CALLAN, CNN LEGAL ANALYST: It's an enormous a number of things that could have happened in that 17 minutes. But I think the commissioner is being sensible in his analyses. He's looking at this frame by frame to see if he sees misconduct by the police officers. And this still a mystery at this point with his neck should not have been broken while he was in police custody, but we still don't know how precisely it happened.

BANFIELD: Harry, let me as you something about, I was reading on philly.com December 2013 piece about something Nickel Ride.

HARRY HOUCK, FORMER N.Y.P.D DETECTIVE: Right.

BANFIELD: I never heard of nickel rides before, but apparently it's something that's well-known. And this is effectively a method of transporting your prisoner in the back of the paddy wagon

HOUCK: Right, I'm aware of it.

BANFIELD: You're aware of it. And so, if this article listed out several instances where prisoners were gravely injured, one of them paralyzed, in fact, because they were toss in the back of that metal wagon, they weren't secured, their handcuffs were behind their backs and the driver's hit the break, hit the gas, where it radically, basically, throwing them around like they were in a washing machine.

HOUCK: Right.

BANFIELD: Now the commissioner says that it is certainly not the account of the passenger who was picked up. The other prisoner said that did not happen. There were no jamming of breaks, no thrashing about...

HOUCK: Right.

BANFIELD: And where those 17 minutes, is it possible that something like this could have led to something far more serious if not the most serious for Freddie in the back of that van?

HOUCK: Anything is possible, I mean anything is possible. I mean, I have no clue. But what's really important to me the fact that they had to stop and shackle his legs, which told me that he must have been thrashing around the back of the van on his own, and that they have to stop that vehicle and they had to put the handcuffs on his legs, not only to protect himself, all right, but protect the officers themselves on any damage inside that vehicle.

[12:55:04] BANFIELD: So there's the concern, I think, at this point is that you got the police union coming out and most people gusting and saying, "My goodness, they're pointing to what they think might be a caused of this whole disaster."

HOUCK: Right.

BANFIELD: But there's certainly -- it seems pointing people away from the six officers on the sidewalk hall and towards something anything inside a van, but isn't that just as problematic? I mean, if you're in place custody, that's your guardian. You're supposed to take care someone in your custody, right?

CALLAN: Absolutely. And as a matter of fact, there's a famous case here in New York called the Michael Stewart case. He was picked up for putting graffiti on buildings and got a heart attack while in police custody. Six officers were indicted for that, for not taking care of his medical needs.

Now, so you can build a theory that it's criminal not to take care of a prisoner in your custody, but we just...

BANFIELD: But to those six officers?

CALLAN: Well, they were all acquitted I have to tell you also because the jury didn't buy it.

BANFIELD: No, no, no, no. I'm talking these six officers who put him in the wagon. And something happened in the wagon...

CALLAN: No, they're not...

BANFIELD: ...drivers fault?

CALLAN: No.

BANFIELD: ...or just the police?

CALLAN: Well, the six wouldn't be responsible then if the jostling was deliberate in an attempt to hurt him, the nickel ride as you have described, then the driver would be responsible, but you know something. Too many unanswered questions here...

BANFIELD: A lot.

CALLAN: ... too many facts we don't know. And I don't think we should be just jumping to conclusions too quick right here.

BANFIELD: It's great point. It's what all the leaders in Baltimore is saying, as well. And there's still a lot to come out here.

Harry Houck, thank you. HOUCK: ... headed.

BANFIELD: And Paul Callan as well. Thank you everyone, as well. Wolf starts right after this break.

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