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Will New NSA Rules Effect Mass Shooting Investigation; Press Conference with Attorney, Mother of Ronald Johnson; San Bernardino Attack Reignites Racial Profiling Debate. Aired 2:30-3p ET

Aired December 07, 2015 - 14:30   ET

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

(COMMERCIAL BREAK)

[14:30:49] POPPY HARLOW, CNN ANCHOR: As investigators hunt for answers in the San Bernardino attack, new questions right now about what the fed's can do, what the federal government can do when it comes to digging into this couple, these mass murder's past, their digital past specifically. The NSA just last month, just four days ago before the attack, ended its controversial bulk data collection surveillance program. That program began after the 9/11 attacks and would allow the government to review and analyze five years worth of phone records for the couple involved in the San Bernardino attack. Now they cannot collect that much data. The operation came under fire two years ago after former NSA contractor, Edward Snowden, leaked key details of it. Investigators are working under a new set of rules and stipulations to try to examine these killers' communications. They say this couple tried to erase their digital footprint. We know from our Pamela Brown's reporting, they smashed cell phones and they removed computer hard drives.

Joining me now is CNN military analyst and NSA former deputy director and Air Force Colonel Cedric Leighten; also is Rod Beckstrom, former director of National Cyber Security Center.

When you look at this, you want to be very clear here, what we know is that this program changed four days before this attack and now what is legally allowed is two years, Cedric, of bulk data collection, not five. It's also critical because the wife, Tashfeen Malik, just came to the United States two years ago. Does that make a critical difference in what investigators can gather here, the two versus five years?

COL. CEDRIC LEIGHTON, CNN MILITARY ANALYST: Usually, most of the things that you see are going to be that immediate period before a terrorist attack. It you're conducting a law enforcement investigation, you are going to go back from the time of that incident and you will go into their past as much as you can. So if you only have two years of data that you can collect, that may limit the far past, and it won't eliminate the immediate past. It just depends on how much they moved around during that two-year period, whether or not there was travel, and also the types of communication modes they used during that period.

HARLOW: I want you both to listen to GOP presidential candidate, Donald Trump, and Governor Chris Christie. They are both in favor of mass surveillance. Here's what they said over the weekend about it.

(BEGIN VIDEO CLIP)

CHRIS CHRISTIE, (R), NEW JERSEY GOVERNOR & PRESIDENTIAL CANDIDATE: It's so wrong for Congress and the president to pull back on surveillance capability with the NSA. So wrong did demoralize communications at end of this last year. The fact is that we need to strengthen our intelligence, strengthen our law enforcement community, and just work as hard as we can to try to intercept this.

DONALD TRUMP, (R), PRESIDENTIAL CANDIDATE & CEO, TRUMP ORGANIZATION: You have people that have to be tracked. If they're Muslims, they're Muslims, but you have people that have to be tracked. And we better be -- I use the word vigilance. We have to show vigilance. We have to have it. If we don't, we're foolish people.

(END VIDEO CLIP)

HARLOW: Rod, does the curtailing of this program, the NSA bulk data collection program, does it hurt those efforts?

ROD BECKSTROM, FORMER CEO, ICANN: You know, referring to the other commentator, I think that two years is an awful lot of data. It's still available here, most likely through the phone companies. Plus, if Mrs. Malik was living overseas until two years, suspected at all, there could be phone records from those previous activities. So I think it's extremely unlikely that this change is going to lead to any denigration in the quality of investigation that can be done.

HARLOW: Cedric, Pamela Brown reported on the smashed cell phones, hard drives, but also was telling me earlier in the program about how good the fed's are at this. How good the cyber security experts are at retrieving data even from smashed phones. What can they get?

LEIGHTON: They can get a lot of things. It also depends on how those phones were smashed. If the data that is resident on the phones themselves is destroyed, that becomes a bit of an issue. But most of the time when people smash phones, they are not zeroized the data. The data needs to be zeroized before it can be considered to be unreadable. And the fed's are good at getting into data that is destroyed in a physical sense. They can also get into data that is deleted in an electronic sense. There are lots of ways they have. And Pamela Brown's report is exactly right. They do some good work and can find most traces in a cyber forensic fashion that normal investigators would not with be able to find.

[14:35:45] HARLOW: Gentlemen, thank you very much. Much more to talk about here. We'll have you both back. Cedric Leighton, Rod Beckstrom, thank you.

Next, a neighbor of the San Bernardino shooter reportedly says she did not report the couple's suspicious behavior. Why? Because she was apparently afraid of being labeled a racist. In the era of "See Something, Say Something," where should society draw the line? And where is the legal line? We'll debate that, next. (COMMERCIAL BREAK)

[14:40:30] HARLOW: You want to take you live to Chicago. You're looking live at the lawyer for the family of Ronald Johnson, the 25- year-old shot and killed by Chicago police last year. This is Michael Oppenheimer at a press conference with Ronald Johnson's mother, Dorothy Holmes.

MICHAEL OPPENHEIMER, ATTORNEY FOR RONALD JOHNSON FAMILY: They spent a great deal of time talking about Witness A. I want to talk about their investigation before we get into Witness A. Anita Alvarez got in front of the TV cameras at her press conference today and said that she relied on the IPRA, independent IPRA investigation. But then she referred to it as the police partner, the IPRA investigation. It is amazing to me that Anita Alvarez, the states attorney of Cook County, relied on an investigation from IPRA and she had the nerve to say that today and that she didn't tell the mayor that she was releasing the video. But she had the nerve to say that she relied on the IPRA investigation when, 12 to 14 hours ago, the head of IPRA resigned and/or was fired because of the shoddy investigations that IPRA does. The head of the organization resigned and the states attorney says I relied on the investigation. That is a joke. That is an absolute joke. It is an affront to Dorothy Holmes. It is an affront to Ronald Johnson. And it an affront to the people of Cook County in Chicago.

I received a call Friday night at 5:00 from a member of the states attorney office, a supervisor, who asked me if I had had any evidence to show that Officer Hernandez planted a weapon. He asked me, the plaintiffs' attorney on this case, and he knew me, if I had had evidence to give to the states attorney's office. Had called me after the mayor said the video is going to be released, if I could provide them with information. Anita Alvarez has at her disposal a fleet of investigators. She has subpoena power. She has grand jury power to subpoena people in front of the grand jury. None of this was done. Instead, she calls the plaintiff's lawyer, me, Friday night and says, what have you got?

I told them that we would cooperate fully if there was an investigation, which there was not. I called them back Saturday afternoon and said, I'm happy to come in Monday afternoon and meet with members of the state's attorneys office to discuss this case. I told them we would cooperate fully, come in and meet to discuss this case. I was put on hold for about three minutes. They got back on the phone and said, we'll get back to you, let us know if you have anything. They hung up on me. They had no desire to meet with me. There was no investigation on this case.

I have a personal list of witnesses, of depositions that have been taken in this case. Officer List (ph), Officer Hooper, Officer Detective Giuliano. And incidentally, Detective Giuliano has been a police officer for around 20 years. She was eligible to be a detective somewhere around 2003 or 2004. She was not made a detective. She was an eyewitness to this case and indicated she handcuffed Ronald Johnson after he was shot. She was made a detective approximately three months after she gave testimony that she saw a gun in Ronald Johnson's hand. Sergeant Thompson, Officer Jones, Costello, Gonzales, Niano (ph), and Hernandez, in addition to civilian witnesses. Not one of those witnesses has been contacted by the states attorneys office. Not one of those witnesses has been subpoenaed for a grand jury investigation. Not one of those witnesses has given any testimony to the states attorneys office or to a federal investigation.

Officer Hernandez, the shooter in this case has not been contacted by the Cook County states attorneys office. And she has the nerve to say that she relied on IPRA investigation. Officer Hernandez has not been asked by IPRA to give a statement. She has not been contacted by IPRA. IPRA says they were waiting for the state to let them know what the investigation would have. The state says they are waiting for IPRA. This is a joke. It's the blind leading the blind.

[14:45:10] Officer Hernandez, however, talked to me, because he gave a six-hour deposition. You heard a snippet of his deposition on the short film. Officer Hernandez sat there with his attorney and agreed to talk to us and give a sworn deposition that was videotaped.

Among the things he indicated in his videotape -- and it was hard to hear -- was that, when he fired the gunshots that killed Ronnie Johnson, I asked his demeanor. He said, I was a bit startled. He just murdered Ronald Johnson. He says he was a bit startled. I asked him if he feared or had any concerns that the states attorneys office was going to indict him. He said no. That deposition was taken almost a month ago. How in the world was he going to know that he was not going to be indicted? How in the world does he know that his position is safe and Anita Alvarez is going to do nothing unless he was told so by Anita Alvarez or someone from her office? It's amazing to me nobody contacted him, nobody attempted to contact him. He was confident he was not going to get indicted. And he fully gave a six- hour deposition about this case. It's amazing that the plaintiffs' lawyers are the only ones able to talk to him when the full power of the Cook County states attorneys office and the Independent Police Review Authority have done nothing.

Anita Alvarez spent a great deal of time trying to build a case against Ronald Johnson and talked about Witness A, who said he saw a weapon and heard a weapon and there were shells in the car. Apparently, Anita Alvarez has never read one deposition in this case. The depositions in this case, taken under oath, rely on what Anita told you today. And we don't have all day so I'll quote from Witness A's deposition. "Question, you never thought it was a gun or anything until the police started telling you that a gun was found and that there was no way that the bullet could get in the car without a gun being there, correct? The witness, I had no thought. The idea of a gun wasn't really a thing until they presented the idea to me or the situation to me. I said, is it your testimony that the idea of a gun came from detectives and not you? Witness A has no criminal background whatsoever? That's correct. Did the idea of a gun come from detectives and not you? Answer, that's correct. And did you tell that to the assistant state's attorney that this idea of a gun came from detectives and not you? No, sir. Why not? By the time I had the conversation with the states attorneys, I had already conjured this notion, the story. The story I told her was the story we had, me and the detectives logically came to because of the situation and what they presented to me. What the detectives presented to him. Everything was already defined and clear to me. Spoken to me at the detectives at that point. So when I went in to have the conversation, the conversation I had with the states attorney before going into the room we had, there was a clear line of events and things that were already going to be in the story. Well, was it a lie that you thought it was a gun? Was it a lie that I thought it was a gun, I couldn't say that.

HARLOW: The attorney for Ronald Johnson and his family, Michael Oppenheimer. As soon as Ronald Johnson's mother begins to speak, we will bring that to you live.

I do want to, because this is kind of in the minutia here, so let's break down the critical things we have heard so far. Back with me, Lynn Sweet, the bureau chief for "The Chicago-Sun Times." Also with me, Charles Coleman, civil rights attorney.

Lynn, to you. I think what stood out to me most of what the attorney said is he kept blasting IPRA. IPRA stands for the Independent Police Review Authority. That's what the states attorney, Anita Alvarez, said, look, we relied on this independent body to investigate the Chicago P.D. This attorney is saying, no way, no how. The way he described it, the blind leading the blind. You know this city police inside and out. Which is it?

LYNN SWEET, BUREAU CHIEF, THE CHICAGO-SUN TIMES: No one really has -- there's no credibility or trust left in these self-policing units. Interestingly, this question came up during the Attorney General Lynch's press conference today when she was asked, should this investigation include the Cook County states attorney, since so few officers are charged and things are taking a long time and Attorney General Lynch said our investigation is focused on the force and accountability within the police department. So it's not focusing on the Cook County states attorney. But as a side note here, when you talk about the minutia, what is not minutia is that the states attorney, Anita Alvarez, is facing a Democratic primary election this March. She has two opponents and her prospects for reelection are in big trouble.

[14:50:26] HARLOW: Political element to all of this.

I want to get your take, Charles, as well. Maybe we can show some of the video that was just released today of this shooting. Because what you see is Ronald Johnson running across the street after a party, an incident, and running across the street and he's shot. The question we addressed before is whether or not it's legal for the officers to shoot him.

Where does the city go from here? Because Michael Oppenheimer said there was no investigation in this case. He said Officer Hernandez has not spoken with the states attorneys office, but he talked about a six-hour deposition that he did with the officer.

CHARLES COLEMAN, CIVIL RIGHTS ATTORNEY: Poppy, listening to what the defense attorney had to say, the family attorney had to say, there's a big problem in Chicago. We have a serious problem with respect to this investigation and how it's conducted. If 60 percent of what was just said is true if not contacting him, he being the only one who took the deposition of the officer who fired the shots and the question of whether there was a gun, there's going to be serious digging on behalf of the Department of Justice into this situation. It's only going to immerse the Chicago Police Department further in hot water.

HARLOW: Isn't it important to note the court of public opinion can try a case like this within the context of everything else surrounding police and policing in this country right now. But an actual court cannot. It can only address the facts of this case.

COLEMAN: That cuts both ways. Look at it in a legal perspective, sure, with what you said the law is the law. There's no compromising that regardless of how the public feels about it. But you have to remember that even though the law is the law, the law as it is applied is applied by jurors. And jurors are susceptible to the court of public opinion.

HARLOW: They are not supposed to be.

COLEMAN: They're not supposed to be, but having done trials, it happens.

HARLOW: As a former prosecutor.

COLEMAN: Right. As a former prosecutor, I can say that regardless of how straightforward the law may be or how clear the law may be or how clear the facts may seem, the court of public opinion plays a role in how these things play out.

HARLOW: Charles Coleman, thank you.

Lynn Sweet, in D.C. for us, again, the bureau chief for "The Chicago Sun-Times," thank you very both very much.

COLEMAN: Thanks, Poppy.

SWEET: Thanks.

HARLOW: Up next, just minutes from now, an update from the FBI. A live press conference we're waiting on in the investigation into these two mass murders in the San Bernardino attack. We'll bring that to you live. Stay with us.

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[14:57:16] HARLOW: At any moment, the FBI will hold a news conference on the investigation into that massacre last week in San Bernardino. We'll bring that to you live as soon as it begins.

Let's talk more about this attack because it's reigniting the debate over racial profiling in this country. You heard President Obama last night insisting any measure to target Muslims is exactly what the enemy wants. (BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: If we are to succeed in defeating terrorism, we must enlist in the strongest allies rather than push them away through suspicious and hate. That doesn't mean denying the fact that an extremist ideology has spread within some Muslim communities. It's a problem that Muslims must confront without excuse. Muslim leaders here and around the globe have to continue working with us to decisively and unequivocally reject that hateful ideology that ISIL and al Qaeda promote.

(END VIDEO CLIP)

HARLOW: Let's talk more about it with the president of the Muslim Association of Britain, Omer El-Hamdoon; and also CNN legal analyst, Joey Jackson.

Gentleman, thank you for being here.

Omar, why don't we begin with you?

You heard the president speaking last night asking faith leaders to do more. Is he right?

OMER EL-HAMDOON, PRESIDENT, MUSLIM ASSOCIATION OF BRITAIN: I think the president has got it right that definitely there needs to be more work with the Muslim communities because the problem of terrorism generally is a junior complex situation. I don't think it can be dealt by one side in particular. Sure, the Muslim leaders have a role to play. The governments have a role to play. The different institutions have a role to play. If we work together, we're more likely to achieve something rather than working in spite of each other. And definitely, by not alienating the Muslim communities or marginalizing the Muslim youth, which adds to the problem rather than solve it.

HARLOW: I want you to take a listen to both Donald Trump, the GOP front runner, and his competitor in the GOP race, Chris Christie. What they both said yesterday.

(BEGIN VIDEO CLIP)

TRUMP: They thought there was something wrong with that group and saw what was happening and they department want to call the police because they didn't want to be profiling, I think it's pretty bad. People are dead right now. So everybody wants to be politically correct and that's part of the problem that we have with our country.

CHRISTIE: We don't need to be profiling in order to be able to get the job done here. Increase surveillance, creating relationships with mosques and the Muslim American community across the country.

(END VIDEO CLIP)

HARLOW: We're going to get back to that in a minute. You're looking live at an FBI press conference being held in San

Bernardino, California. The FBI assistant director in charge, David Bowdich speaking. Let's listen in.

DAVID BOWDICH, ASSISTANT DIRECTOR, FBI, LOS ANGLES OFFICE: -- from the sheriff's department in San Bernardino as well assistant special agent in charge, John DeAngelo, from --