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Legal View with Ashleigh Banfield

Russian Crash Mystery: Unexpected, Uncharacteristic Sounds in Cockpit; Credit Cards Say Lawsuits Not Allowed; Interview with Sen. Al Franken. Aired 12-12:30p ET

Aired November 03, 2015 - 12:00   ET

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

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[12:00:22] ANNOUNCER: This is CNN breaking news.

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

We begin this hour with breaking news on the fast moving investigation into that Russian airliner crash. Russia's Interfax news agency is now reporting uncharacteristic sounds heard on the cockpit voice recorder. Right now Egyptian officials are the people who are analyzing that data. Interfax quoting a source in Cairo saying, quote, "unexpected" and, quote, "nonstandard emergency,", something of the sort, occurred, quote, "instantly," which is why the pilots failed to declare an emergency.

This comes on the heels of news that a U.S. military satellite detected a heat flash from the plane just seconds before it broke apart and fell from the sky. So what does it all point to if anything at all or does it raise even more questions? Barbara Starr is live with us from the Pentagon. Our safety analyst, David Soucie, is live with us in Denver. And CNN's terrorism analyst, Paul Cruikshank, joins me here live in New York.

First to you, Barbara, what are you learning?

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Well, Ashleigh, what we now know is that a U.S military satellite flying over Sinai detected an infrared flash, if you will, from the vicinity of the aircraft before it fell to earth. What are we talking about when we say an infrared flash? This is essentially a heat flash. A flash of heat much different than essentially the heat in the environment at that time. So it pops up very hot.

This is, you know, related to whatever happened on board the airplane as it broke apart, if it exploded, if there was some sort of mechanical failure, if, in fact, there was, and we do not know, a bomb on board. These are the scenarios that we do know the U.S. government is considering, is looking at, was it a catastrophic mechanical failure of some sort that is just not understood yet -- we have to wait for the analysis of the black boxes and other data -- or is it possible, we don't know, was a bomb put on board this plane at some point? The U.S. intelligence community scouring everything it has because the bottom line for them is if it was a bomb on board the plane, they want to know as quickly as possible and they want to find out who is out there that would have the capability to bring down an airliner. That's the most serious possibility here that they really need to get an answer to fast.

But I can the tell you, U.S. officials very cautious, also saying all the black boxes, all the data, all the wreckage needs to be analyzed. They're just looking at all the possibilities out there while all of that analysis is going on.

Ashleigh.

BANFIELD: And, Barbara, stand by for a moment, if you will.

David Soucie, it seems to me that if there were a bomb on board, the forensic analysis would be much quicker than this.

DAVID SOUCIE, CNN AVIATION ANALYST: It definitely would be. In fact, what's interesting to me is that the reports about the bodies and the clothing of the people that were on board show no evidence of any kind of explosion from the inside of the aircraft out. Now, there are a lot of bodies that have not been recovered yet, so it's possible that those just were part of that explosion and weren't part of the investigation. But there are ways to test for explosive and incendiary fuels on board the aircraft on site and I'm very surprised we haven't heard anything about that.

BANFIELD: And what about this Interfax report, the Russian privately owned news agency. The source in Cairo apparently saying to Interfax that there are sounds uncharacteristic -- I'm going to -- I'm going to actually quote the person. "There are sounds uncharacteristic for the standard flight on the recording before the moment the plane disappeared from the radar screens." David, it goes on to say, "and based on the recording, a nonstandard emergency situation occurred instantly on board and became an unexpected one for the crew and the pilots, failed to send an alarm signal." Does any of that make any sense to you with your aviation knowledge?

SOUCIE: Absolutely it does. The unexpected means that it's not something that they anticipated, like a -- like a weather. We're going to fly into clouds, so we know we're going to have to have some emergency procedures, or we know that something's going on with the aircraft, we're going to have to evoke emergency procedures. The unexpected part means that it's not planned.

The other part about it being nonstandard means that a standard emergency is something that's covered in the flight manual. So if you have an emergency and you react to it in a certain way, which as an engine fire, something along those lines, then you go to the manual, you go to your standard emergency responses and you read those checklists and begin from there. So that's what they're referring to there, is that there was -- there was no checklist for this. There was none -- no time to even initiate one. So that's what that memo is telling us in aviation speak, if you will.

[12:05:19] BANFIELD: So, Paul Cruikshank, while the range of possibilities now, according to the analysts, is, you know, everything from a bomb blast to a malfunctioning engine exploding, to a structural problem causing a fire on the plane, you know, when you look at terrorism, typically people who carry out acts of terror do so for the purpose of creating terror, which means they telegraph what they do as soon as they see they get their successes. And we're hearing nothing other than that original claim from ISIS.

PAUL CRUICKSHANK, CNN TERRORISM ANALYST: That's exactly right, Ashleigh. And even with ISIS, with that claim on Saturday, it was a very half-hearted claim. Eight lines, just the statement. If you'd really brought down a Russian passenger jet, this would be the biggest terrorist victory since 9/11. So if you're a terrorist group, there would be a full court press in terms of the propaganda. Just eight lines from ISIS. It appears ISIS doesn't even believe they carried it this attack. Nothing at all from al Qaeda. In this age of social media, you expect these groups to get their message out much quicker than before.

If al Qaeda, for example, was responsible for some kind of terrorist attack, the fact that ISIS has claimed it would necessitate them to get their message out quickly, but we've seen nothing of that sort come out so far, which I think points away -- a little bit away from terrorism as the possible explanation.

BANFIELD: And I -- you know I asked this question just a couple of seconds ago and that is, look, if this were a bomb blast, we would know. We would know almost instantaneously. There are dozens and dozens of investigators on that site for several days now. It wouldn't take this long, would it? I mean this is the answer that the whole world wants.

CRUICKSHANK: Well, I've been talking to people who have expertise and how they do these investigations. The first thing they'll be looking for are visuals at the bomb crash site. Tail tell signs there's been some kind of explosive device from the inside. Then they're going to be taking those pieces of wreckage, triaging them, and doing explosive trace detection on them. So far they haven't found any traces of explosives, but it will take several weeks for them to rule out the fact that explosives were involved.

BANFIELD: David Soucie, just quickly, Richard Quest sent a note just suggesting there -- there were a lot of similarities in terms of sounds that were heard on the cockpit recorder, albeit milliseconds it sounds, prior to the MH-17 missile explosion and the aircraft that was brought down over Ukraine. Is there anything to be made of that or is that just a coincidence that there are plenty of unusual, very, very brief sounds on a cockpit voice recorder?

SOUCIE: Yes, these types of sounds are not usual in any stretch of the imagination. What the cockpit voice recorder does, and when you're doing the analysis of these recordings, you're looking for anomalous sounds. Things that are outside of the routine behaviors. So there are sounds. There's things going on at all times. But there are parameters at certain frequencies that say, this is within the normal range, that's within the normal range. When you exceed that, as in MH-17, as Richard Quest brought up, there were points at which right before the -- the cockpit voice record stopped recording, that it started recording these sounds, the noise, the explosion, things like that. Those noises are outside of those parameters and this apparently is what they're hearing now in this cockpit voice recorder. So it's a good observation on Richard's part.

BANFIELD: All right, David Soucie, thank you for that. Paul Cruickshank, thank you for your expertise as well. And our thanks to Barbara Starr for her insightful reporting as well.

Coming up in just a moment, you would think when you hear about infractions like theft or assault or say fraud, medical malpractice, sexual harassment, those would automatically go to a courtroom and a judge or a jury would have a final say about those things in America, right? It turns out, very often that is not happening. Private rooms and private citizens are making these decisions. And there is one public citizen named Senator Al Franken who wants to see some changes. And he is publically going to join us, next.

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[12:13:48] BANFIELD: Checking some top stories now.

Hillary Clinton has taken the lead from Bernie Sanders in New Hampshire. This new Monmouth University poll is just out and it shows 48 percent of voters are choosing Senator Clinton there, 45 percent are choosing Sanders. This reverses the lead that Senator Sanders was holding back in September when he had 49 percent to Secretary Clinton's 41 percent among Democrats.

The first lawsuit has been filed against Chipotle in the E. Coli outbreak. A pharmacist in Washington state is suing the restaurant chain after she was sickened. No one has died, but Chipotle has temporarily closed dozens of its restaurants in Washington and in Oregon out of an abundance of caution. Health officials say the source of the contamination has yet to be determined.

Coming up next, Senator Al Franken joining us to talk about some very serious legal issues that, by the way, may affect you all because of the many things you do, like take out a credit card or sign up for phone service or you name it. When you click the box, you limit your rights. And this senator wants that to change.

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[12:19:08] BANFIELD: If you have a credit card or say cable TV or a cell phone or even a job, it is pretty likely that you have given up a fundamental right, constitutional right, without even being aware of it. The right to go to court if something goes wrong.

Now this week in "The New York Times," they're really peeling back a practice that my next guest calls unbelievably unfair. Democratic Senator Al Franken has spent much of his six-plus years in Washington fighting clauses like this one from the American Express terms of service, and I will quote Senator Franken, "you or we may elect to resolve any claim by individual arbitration." Arbitration being a private, secret binding alternative to lawsuits. And individual meaning the person who agrees, all by yourself. No banding together with other plaintiffs in so-called class action lawsuits.

[12:20:02] Amex is far from alone in this practice. All of these companies and many more have made sure that they will never have to face an angry customers, or worse, thousands and thousands of angry customers in a courtroom facing down a judge. Look at all those logos. You probably consumed something in that list. And Senator Franken thinks there ought to be some regulations about this kind of alternative system of justice.

Senator Franken, thanks for being here. Appreciate this.

SEN. AL FRANKEN (D), MINNESOTA: Thank you for your -- your lead-in on that and describing what the situation is. This is also in employment contracts, in a contract with a -- a school where you thought you were signing up for a course where you get an accreditation and get a job afterwards, but it turns out you don't. This is a way in which the deck is stacked, the system is rigged against the little guy when these corporations make you go to arbitration and the arbitrator is chosen by the company.

BANFIELD: So, you know, I think a lot of people agree with you. People get very frustrated when they realize that that's what this means. But it always comes down to, you hold the keys as the consumer. You check the box. You say next online when you agree to the service. You are the person who ultimately makes the agreement. And a lot of those who support arbitration say, you can always opt-out.

FRANKEN: You can't really. These are what are called contracts of adhesion, which is -- basically it's one very powerful entity against you. And let's say you only have one opportunity to get Internet in your community, Internet broadband with say Time Warner Cable. Well, Time Warner Cable then can start charging you without telling you at any point, they can just put $40 more on because of -- the modem that was there when you signed the contract. I'm saying this because this has happened.

BANFIELD: Yes.

FRANKEN: And you have to -- have to go to arbitration with them for $40. And that's -- that's -- you can't -- you don't want it -- and -- and -- and, or you could go in a class action suit, if you could, but they won't allow you to do that. And so, you know, a class action suit would be a million Time Warner Cable customers banning together saying, don't charge us $40 a month for this modem, and that is a way to get justice. But all this is now closed off to consumers, to employees, to students in all of these contracts, and also it's when you check off terms and conditions. This is literally the fine print in these contracts.

BANFIELD: Well, and it's a lot of fine print. And I, honestly, don't know anyone who has ever read through it before clicking the next and signing off on it. But I do want to ask you this. Those who support arbitration say it does have its benefits. You know, there -- you limit the personal injury ambulance chasers out there. You get some fair and efficient settlements. Some people certainly say that they've gotten fair and efficient settlements. And, you know, you do kind of sort of get these through the system.

FRANKEN: Some people say that and mainly it's the companies.

BANFIELD: Some do. Mainly the companies. I will give you that. That -- the benefit has definitely, in the statistics, shown that they have gone to the companies. But in the meantime --

FRANKEN: And let me -- let me -- let me explain something. They pick the arbitrator.

BANFIELD: Yes.

FRANKEN: And it's been shown that the arbitrators, in order to get hired again by the company, decide more often for the business. So this is --

BANFIELD: Yes, no, the statistics prove you out. You're absolutely right.

FRANKEN: And I've gotten this under testimony. I've had hearings on this and I've had even representatives of, you know, the pro-mandatory arbitrary pre-dispute. That means before anything bad happens. But when you sign your contract, you sign this thing. Who -- who have written that arbitrators will want to get a pro-business reputation so they get jobs and so they will for them.

BANFIELD: Well, they -- there have been some --

FRANKEN: And if you read "The New York Times" series (ph), you'll see that in spades. And this is --

BANFIELD: They've interviewed some. Some have actually said that they -- they were worried about losing business, because they're not going to get business from Ashleigh Banfield if I'm the little peon that goes into arbitration, but they are going to get business, you know, repeat business, from the company that might go up against me.

But let me ask you this, you have raised the legislation a few times. The Supreme Court has ruled on this twice. What is the solution to it?

FRANKEN: On the 5-4 -- on a 5-4 basis. Well, the solution right now --

BANFIELD: Yes. That's still the ruling though.

FRANKEN: The solution right now, we've had some Republicans who have voted for getting rid of certain arbitration clauses and certain things. So that's part of the hope. Now, secondly, we -- the Consumer Financial Protection Board is making some rules on this. So is CMS, which overseeing Medicare and Medicaid. And they're doing it on nursing homes. We've seen some terrible things where people are -- dye in nursing homes and you get -- and their children have to go to arbitration. And it really doesn't matter what the facts are. They decide for the nursing home. And so there are regulations being promulgated both in CMS and in the CFPB, which I think are -- may be very helpful. [12:25:37] BANFIELD: So it would be irresponsible of me if I -- if I

didn't ask you a questions -- well, a couple of different questions about the current state of presidential politics.

FRANKEN: Sure.

BANFIELD: I -- the great secret is out. At a -- at a Democratic fundraiser, because you're -- you're working very hard to -- to try to make sure that the -- the Senate turns over to the Democrats next time around. You did an impersonation of Donald Trump. And you wore the hat saying, make Minnesota great again, but you're not releasing the videotape.

FRANKEN: Well, OK, you're -- you're conflating two different things. This is not at --

BANFIELD: OK.

FRANKEN: This was not at a political event. This is for the Minnesota Business Partnership.

BANFIELD: OK.

FRANKEN: They do a once a year light-hearted dinner. And I did a video for them. And that's, if you have a picture of this, that's -- that's why it said "make Minnesota great again" -- or "keep Minnesota great again."

BANFIELD: But you're not releasing the video. We all wanted to see you do your Trump impersonation because you, when you were on "SNL," were one of the greats doing impressions.

FRANKEN: Well, thanks for saying I was one of the greats.

BANFIELD: That's it. You're not going to give me anything, are you? I am not going to get you to do this in this interview.

FRANKEN: Oh, no, no, no, I'm not going to do that.

BANFIELD: I didn't think so. But, you know what, while I do have you, I would like you to weigh in --

FRANKEN: I used to get paid for that.

BANFIELD: Well, we can't do that, unfortunately.

FRANKEN: So there.

I know. I know.

BANFIELD: But you are -- you are -- you are, you know, watching, I'm sure, intently what's happening in the --

FRANKEN: Sure.

BANFIELD: You know, in the Republican field right now. And there's been a lot of talk, shall we say, I'll say it mildly, a lot of talk about these debates and how the Republican candidates feel about the debates. The president weighed in on this last night. It's getting a lot of air play. I want to play his comment and get your thoughts on the other side. Have a listen.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Have you noticed that every one of these candidates say, Obama's weak. He's -- you know, people -- Putin's kicking sand in his face. When I talk to Putin, he's going to straighten out. Just looking at him, I'm going to -- he's going to be -- and then it turns out they can't handle a bunch of CNBC moderators. I mean, let me tell you, if you can't handle -- if you can't handle those guys -- you know, then I don't think the Chinese and the Russians are going to be too worried about you.

(END VIDEO CLIP)

BANFIELD: So what do you think about what's transpired. There's been a lot to say and a lot of people who are pulling back there say this week on what should happen in the next Republican debate.

FRANKEN: I think the president did a good hunk there. He should use that next time he's on -- on Colbert or on Fallon or something. That -- that -- it's kind of true. I mean I've heard them -- I think I heard Ted Cruz say that he wanted only moderators who had voted in Republican primaries, which means we would have to have journalists saying who their -- who they voted for and who they registered with. That's not -- I think -- I think these guys should really want to be challenged a little bit. I think that you show your strength and your toughness when you're being challenged a little bit. I think that's what you want in a -- in a debates. Very often I've been in debates, when I've gotten a tough question, I think, thank you. Thank you. Now I can -- now I can address that and show who I am.

BANFIELD: Well, some of them are saying that. Some of them are saying that. Some are saying otherwise. But speaking of one of them, Donald Trump is heading to your old stomping grounds. He's headed to "SNL" to host the show. Host the show.

FRANKEN: Yes.

BANFIELD: Not appear on the show, actually host, with all that air time. There's -- you know, "SNL" can make or break you as a candidate. It has a massive impact on audiences. You've got to agree.

FRANKEN: I think it will be an entertaining show. I watch the show whenever I have the chance. I thought Hillary did great on it. I've known her for 20 years. She's really -- she's actually a really funny person and is going to make a great president.

[12:30:03] BANFIELD: You ever going to head back?

FRANKEN: Head back to "SNL"?

BANFIELD: Yes. FRANKEN: I go there every once in a while to watch, you know -- to hang out and watch the show.

BANFIELD: I mean appear. I mean appear.