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Legal View with Ashleigh Banfield

North Korean H-Bomb; San Bernardino Case; Cruz Natural Born Issue. Aired 12-12:30p ET

Aired January 06, 2016 - 12:00   ET

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

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

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

It is the hour's breaking news on CNN. They are celebrating in North Korea right now. Celebrating something that literally shook the world just a few hours ago. And if it is true, and that is a very big if, it means North Korea has managed to put together and to test a hydrogen bomb.

So, this was the official announcement today on North Korean television, and in that breathless Pyongyang fashion no less. No one else in the world is happy about this. In fact, nobody except North Korea is even reporting this to be 100 percent true. But when I said something shook the earth, it is not an exaggeration. Whatever North Korea did several hours ago, it caused seismic activity. In fact, an event that earthquake monitors registered as a magnitude 5.1. You know who else isn't happy about this? The secretary-general of the United Nations, Ban Ki-moon.

(BEGIN VIDEO CLIP)

BAN KI-MOON, U.N. SECRETARY-GENERAL: This test once again violates numerous sacred (ph) council resolutions, despite the united call by the international community to cease such activities. And it is also a grave contraindication (ph) of the international norm against nuclear testing. This act is a profoundly destabilizing for regional security and seriously undermines international nonproliferation efforts. I condemn it unequivocally.

(END VIDEO CLIP)

BANFIELD: Plenty to talk about, this possible test of a hydrogen bomb, which we're about to learn is much more of a destructive thing than just the good old fashioned A-bomb, the Atomic Bomb. Our Chad Myers is going to help us sort through that. Also Jim Walsh from MIT is standing by live. But I want to get to Matt Rivers, who is standing by live in Beijing right now, where it's just about 1:00 in the morning, a little after.

Matt, I want to ask you about the significance. It's only been a couple of years since there was a profound relation between China and North Korea. And that has dissipated exponentially. What are the Chinese saying about what has just happened and the significance of it for them and for everybody else?

MATT RIVERS, CNN CORRESPONDENT: Well, they're not happy about it, Ashleigh. They came out very strongly, just as the rest of the international community did, unequivocally saying that they are not pleased with this latest test from the North Koreans. Now, China is North Korea's only major ally on the world stage, and so for the Chinese to come out as strongly as they did really says something about how unhappy Beijing is with the North Korean. Perhaps because China shares a border with North Korea. There were schoolchildren that were actually evacuated from their school because of those tremors you mentioned in the top of the broadcast. And we're told that the Environmental Protection Ministry here has actually spent - sent inspectors to the Korean border to test for radiation.

So as the U.N. Security Council meets right now to discuss perhaps leveling more sanctions against North Korea, it will be very, very interesting to see whether China backs those sanctions against its ally moving forward. And if they do, I think it give you a pretty strong indication of just how unhappy China is and how much relations between North Korea and China have dissipated, have deteriorated over the last several years.

BANFIELD: All right, Matt, standby, if you will. I want to bring in Chad Myers.

Because, I think, Chad, a lot of people hear that there was an H-bomb that may have been actually tested, and they may be somewhat confused as to the significance of the explosive qualities or the travel qualities or just the significance generally speaking between A-bombs, H-bombs and any other kind of weaponry that North Korea's been up to.

CHAD MYERS, AMS METEOROLOGIST: It's the difference between a kilobyte and a megabyte or a megabyte and a gigabyte or a gigabyte and a terabyte. It's the difference of running about 100 feet compared to running a marathon. The difference is 1,000 fold. In fact, it takes an atom bomb to make a hydrogen bomb go off. So it's the trigger, it's the cap that makes a hydrogen bomb go off.

Northern North Korea, a really, really desolate area. This is where all of the explosions, all of those that nations have been somewhere between a 4.3 magnitude and a 5.1 this time. We're seeing in the area, a desolate area, the evidence of maybe some mining, which indicates probably that this was an underground test, and that's what we would expect.

But let's get to this. Let's get to the magnitude difference of what would be Nagasaki, which would be 15 kilotons. We're back with the kilo, mega and giga thing again. So 15 kilotons. Then we move ahead to the earthquake in Sumatra at about 26 megatons on the surface, shaking the surface. That stuff doesn't even include the tsunami, but you get the idea. That's a lot of shaking. The biggest bomb ever detonated by Russia, the Tzar bomb, 50 megatons. And then Mount St. Helens going off, this giant, giant volcano going off and blowing up so many things, knocking down trees for hundreds of miles.

[12:05:23] But now let me put it into scale. Kind of like, you know, where the sun, and where the moon, and where the stars are. We'll, over there, that's the big Mount St. Helens. That's the biggest bomb ever. That right there would be Sumatra. And that tiny little dot, right here, where is it, right here, this tiny little dot, right there, that would be the Nagasaki bomb. So you understand the difference between what we probably saw at a 5 mega - 5 megabyte - 5 magnitude compared to what could have been had it really been a big, big explosion, which could have been a thousands times or more bigger. We'll just have to go back and see what exactly is going on there.

BANFIELD: That is just a perfect explanation and a perfect description of the significance of this.

Chad, standby. I want to get the security issues nailed down right now with Jim Walsh, who's our international security expert.

Jim, thanks so much for being with us.

So, listen, there are a lot of issues that come up with what Chad just showed us and what with the - the international community is now saying may have happened. And I want to drill down on the may have. How are we going the know if this really happened? And when we find that out, what on earth can you do about it with a rogue nation like North Korea?

JIM WALSH, INTERNATIONAL SECURITY EXPERT: Two good questions. On the first, Ashleigh, how do we know? Well, we're pretty sure there was a nuclear test of some kind. Why? Because as have, as part of this comprehensive test ban treaty, a set of seismic stations set up around the world to monitor potential nuclear tests, and it did show up in the same time frame that the North Koreans were claiming a test.

Now, is it an H-bomb? You know, I have my doubts about that. The yield on this test was very small, similar to the yields of their previous tests. Now, that - that number's going to be revised over time, but it is an order of magnitude less than we would expect if it was a hydrogen bomb. So they may be playing here that it may be an H-bomb, it may not be. That one way they could tell for sure is if the U.S. or Japan are able to take air samples from planes and pick up a radioactive signature in those air samples that would tell them the type of bomb being used. That would be very strong evidence. The question is whether they'll get that evidence. They've gotten it on some tests. They haven't gotten it on others. So that remains to be seen.

As to what to do about it? And that is actually the more important question. I'm afraid my answer is, there's not much you can do. They're already sanctioned. Sanctions have had a limited effect, obviously. They're going to pass a U.N. Security Council resolution. North Korea doesn't care about that. It will be interesting to see what the Chinese do. Essentially the North Koreans have called the Chinese bluff and said, too bad, we're doing this anyway. Will the North - will the Chinese do something, use its economic leverage? Probably not, because they don't want to have a country on their border that has big economic problems. So I'm guessing we're going to not see a heck of a lot in the aftermath of this unless, you know, something escalates because South Korea reacts and then North Korea reacts. But barring that, I don't think there's a lot to be done.

BANFIELD: One last question, and I have to make it a quick one, but I think it's critical. For years it was thought that China would be one of the only way to mitigate the irrationality of Kim Jong-un and what he's been up to. Now, clearly, that is non-existent. I mean almost non-existent that relationship. But what of the others who may be helping and supplying? There is great knowledge about those who travel from Iran and are present during testing. What can one do in terms of taking out the suppliers, the support network, those who made what happens in North Korea happen?

WALSH: Yes, most of the collaboration with Iran is over missiles, not nuclear, and this is something I've spent a lot of time on. I have a MacArthur foundation grant on this. Most of the procurement is in China. They set up dummy companies in China, have the dummy company in China import what they need from Europe or elsewhere in the region, and - and it's really going to take Chinese cooperation to - to get to that. But it's tough. I mean they're on the border. I think trying to intercept and prevent them from getting what they want is very difficult in a globalized economy when they're sitting next to the biggest economy in the world. A tough challenge.

BANFIELD: I can't thank you enough, Jim. I don't think this is the last we're going to speak on this. Thank you so much.

Our thanks to Chad Myers, as well, and also to Matt Rivers, who's doing a great job for us in Beijing. Thank you to all of you.

Coming up next, the man who bought those guns that were used in the San Bernardino terror attack is about to appear in court again. Speaking of the San Bernardino attack, there is a big black hole, folk. The FBI does not know, even at this stage, what happened with these two killers between 12:59 p.m. and 1:17 p.m. It is an 18-minute mystery. And now the FBI thinks you might be the key in solving it.

(COMMERCIAL BREAK)

[12:13:33] BANFIELD: In about 15 minutes from now, the man who bought those guns that were used in the San Bernardino attack is scheduled to walk into the Riverside, California, courtroom for an arraignment. Enrique Marquez was a friend of the attacker named Syed Rizwan Farook, who's dead. But this man is suspected of buying those rifles that Farook and his wife used in the massacre that left 14 people dead last month. And he is also accused of entering into a fake marriage with a member of Farook's family. And he's also accused of plotting attacks. Attacks that never happened, but were supposed to, at a college and on a busy commuter freeway.

So along with that new development comes something from the FBI. And it is a request of you. They are asking the public to help them in a timeline on that December 2nd day. We put it in a graphic for you, but there's a big piece of the puzzle that's missing and it's in red. It's 18 minutes long. And it's from 12:59 p.m. in San Bernardino to 11:17 p.m. in San Bernardino. They just do not know where Farook and his lovely wife were. They also don't know where those two were and what they were doing or if they were meeting with somebody. Or, let's say, maybe getting rid of a computer hard drive somewhere. And that's where you come in. And that's where Evan Perez comes in, in Washington, D.C. And also joining me, CNN law enforcement analyst Jonathan Gilliam.

OK, Jonathan, stand by for a minute.

Evan Perez, to you.

Real quickly, just give us the one line on what he's doing in court today for this arraignment, and then walk me through this timeline and why we're only just now finding out about this?

[12:15:10] EVAN PEREZ, CNN ANCHOR: Well, Ashleigh, this is where he learns the charges. I mean he's known about it, but he's going to publicly be read these charge and we'll see whether or not he makes any public statement whatsoever. We know that he says he's sorry for helping Farook get these guns and - but he says he had nothing to do with this - with this massacre.

As far as what the FBI is asking the public for, this is a very key part of - of this investigation simply because the FBI wants to make sure that they know everything, everything that happened after these two committed this massacre. We have a map that shows the l - this l- shaped box of this area. Based on cell phone tracking, they know that they were inside this area. What they don't know is exactly what they were doing. They've been able to look at surveillance cameras, traffic cameras, even, as I mentioned, the cell phone tracking to be able to see where they were, but they don't know exactly where they were during this exact period. And that's very much something, as you mentioned, they want to know whether or not there's anybody they met, was there anybody else who was in on this plan. That's very much something that the FBI wants to make sure they know about.

BANFIELD: Evan, standby for a second.

Jonathan Gilliam, you have a lot of hats that you wear, FBI, police and also Navy SEAL. But you and I have been in enough courtrooms to know that you rarely lose someone in this day and age of surveillance cameras on every corner, at every business.

JONATHAN GILLIAM, CNN LAW ENFORCEMENT ANALYST: Right.

BANFIELD: You rarely lose someone for that long.

GILLIAM: Right.

BANFIELD: I find this absolutely perplexing.

GILLIAM: It's perplexing because you know somewhere along this route there would most likely where they lost them and where they found them, there's going to be some type of video footage giving the officers and investigators a location as to where they were at that time. The fact that it - they kind of just disappear for that period of time is alarming because it sets up the scenarios for possibility of safe houses for support. Did they have an initial intended target that they wanted to go to and this just happened to be a target of opportunity? These are questions that come up that when you cannot fill that void, you have to ask, where were they? Where - where were they and for what reason did they disappear off the radar for that period of time.

BANFIELD: As a police officer who's spent a lot of time in the field, when you start turning to the public, and I think we can all look at John Walsh as the great example -

GILLIAM: Sure.

BANFIELD: You put this stuff on TV. It goes everywhere. Enough eyes see it and someone's memory gets jarred.

GILLIAM: Uh-huh.

BANFIELD: Someone thinks, you know, I never thought of it before, but now it sort of makes sense. They may not have been wearing hajab at the time.

GILLIAM: Right.

BANFIELD: She may have been dressed in something different. He may have been dressed in something different. But do you think this kind of an appeal is actually going to yield something valuable enough to start the ball and the domino train rolling towards something else?

GILLIAM: Right. It very well could. And, you know, the - normally what American citizens can offer, they don't realize it until their - their memory is sparked. And I think there's so many cameras out there, there's so many people, and we all have two eyes to see. I think that if people just go back and think about these things, they can be such a tremendous help to law enforcement. And I do think that something can come of this. They were somewhere. They - they most likely were seen by somebody. They just have to kind of get these individuals, whoever may have seen them, to realize that's what they were looking at.

BANFIELD: Jonathan Gilliam, thank you. Everyone, if you're watching, 800-CALL-FBI. It's critical that anyone with anything, even if you think it's tiny, they always say, as a police officer -

GILLIAM: Right.

BANFIELD: Nothing is too small. No piece of information is too small.

Evan Perez, Jonathan Gilliam, thank you both. We do appreciate it.

Coming up next, the rebirth of the birther controversy. This time it's for the 2016 election and Donald Trump is reminding voters that his top rival, Ted Cruz, was not born in this country, was born in Canada. Wait a minute. We've got a Constitution that says that can't happen. So what does Cruz say about that? And, by the way, what does Fonzie from "Happy Days" have to do with all of this? I know, it's weird. That answer's coming.

(COMMERCIAL BREAK) [12:22:37] BANFIELD: Years before he entered the race to succeed President Obama, Donald Trump made a stink about the president's natural born citizenship, or the alleged lack thereof as he put it. It was a complete and utter waste of Trump's breath, and media bandwidth. But, guess what, birther Trump is back. And his target this time is not Obama, it's the GOP rival of his with the best chance of beating him in the Iowa caucuses, which, by the way, check your calendar, they are now just 26 days away.

Texas Senator Ted Cruz has a bull's eye on him now. In an interview with "The Washington Post," Donald Trump says the fact that Cruz was born in Canada could put Republicans in a, quote, "very precarious position" should Cruz become the nominee. He goes on to, quote, "Republicans are going to have to ask themselves the question, do we want a candidate who could be tied up in court for two years? That'd be a big problem," end quote.

By way of response, Cruz had a good one. He tweeted a clip from the shark jumping episode of "Happy Days." One of our favorites. And speaking to reporters in Iowa just minutes ago, he pointed out history is on his side.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R), PRESIDENTIAL CANDIDATE: People will continue to make political noise about it, but as a legal matter it's quite straightforward. I would note that it has occurred many times in history. John McCain was born in Panama, but he was a natural born citizen because his parents were U.S. citizens. George Romney, Mitt's dad, was born in Mexico when his parents were Morman missionaries, but he was a natural born citizen because his parents were citizens. And, actually, Barry Goldwater was born in Arizona, before Arizona was a state, and yet he was a natural born citizen because his parents were citizenship. As a legal matter, the question is quite straightforward.

(END VIDEO CLIP)

BANFIELD: Straightforward, interesting enough.

Paul Callan is the man who puts straightforward into context for me every day.

Listen, straightforward may be really clear and concise for Ted Cruz, but when he says there's history, there isn't, because neither McCain, nor Romney, nor Goldwater, those three men that he cited, became president of the United States in order to effectuate a test. Walk me through why that actually could be an issue.

PAUL CALLAN, CNN LEGAL ANALYST: Well, you know, and I think we should separate out the birther stuff that Trump raised against the president, because the president was born in Hawaii. That had to do whether he could prove he was born in the United States. Cruz concedes he was born in Canada, but he's the son of an American citizen and, traditionally, we have said a person born to an American citizen is an American citizen. [12:25:20] However, the Constitution doesn't clearly say that. It says only a natural born citizen can become president of the United States, and it doesn't define what that mean. And all of the cases that constitutional scholar Ted Cruz has cited don't refer to the presidency, as you've just mentioned. Those are lower court case, and those - he was referring to candidates who never became president. This has never been decided by the Supreme Court. Constitutional scholars think in the end the court would go the way the lower courts have gone, in which case the son or daughter of an American citizen is an American citizen, but we don't know until the Supreme Court rules.

BANFIELD: While I would - I would immediately, typically say, Donald Trump shouldn't go up against two constitutional scholars and lawyers, Obama and Cruz, he does have a point in the fact that it hasn't been tested.

I want to read you something from "The Harvard Review." It says, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone or the continental United States." Is that issue of generally something that can be litigated, or if you look at the nine today, the nine Supreme Court justice, are they all going to look at it, shake their heads and say, really, we're not even going to hear this case?

CALLAN: Well, I think you're on to something there. There's something called political - a political question that a lot of times the Supreme Court says, you know something, we're not going to have anything to do with this because it would really - it could destroy the country. Let's say he gets elected, he's about to be sworn in as president, what, the Supreme Court's going to throw him out of the presidency? I don't think they'll touch it. And I think all this is going to do is dominate the news cycle for a few day and then Mr. Trump will move on to his next issue.

BANFIELD: I remember the last time we talked about the possibility of a non-citizen becoming president, it was Schwarzenegger.

CALLAN: Yes.

BANFIELD: There was a lot of calls for a constitutional amendment on that.

Paul Callan, thank you for that.

CALLAN: Thank you.

BANFIELD: Appreciate it.

And we're going to hear from Trump when he sits down with my colleague Wolf Blitzer in "The Situation Room." It's coming up live at 5:00 p.m. Eastern, 2:00 p.m. Pacific, right here only on CNN. Make sure you stay tuned.

More fallout from President Obama's executive action on gun violence. The House speaker, Paul Ryan, today dismissed a new order that expands the scope of who is considered a gun, quote, "dealer," and is thus obligated to get a federal firearms license and run background checks on buyers.

(BEGIN VIDEO CLIP)

REP. PAUL RYAN (R), HOUSE SPEAKER: If you are buying and selling guns, you have to have an FFL, whether or not you do so at a gun show or anywhere elsewhere. There isn't a loophole. This is a distraction. The president clearly does not respect the Second Amendment rights for law abiding Americans. I think it would be nice if he would actually focus on defeating ISIS, on calling radical Islamic terrorism what it actually is, instead of talking about how he can intimidate and frustrate the Second Amendment rights of law abiding citizens. We will look at all of our options, but we will not take this distraction for more than it is, a distraction.

(END VIDEO CLIP)

BANFIELD: Don't forget, tomorrow night President Obama's going to join my colleague Anderson Cooper and a live audience for a very significant town hall on guns. It's at 8:00 Eastern Time right here on CNN. Set your DVR. Better yet, watch it live. Don't miss this one.

The very first Baltimore police officer to go on trial in the death of Freddie Gray does not want to testify against the second officer who is set to go on trial. Lawyers for William Porter say that they're worried his testimony could be used against him in his re-trial, which has now been set for June. Porter's first trial, you will remember, ended in a hung jury. The jury selection is due to start Monday for Caesar Goodson. He is officer number two. And he's the guy who drove the van in which Gray apparently suffered those fatal spinal injuries. Pre-trial motions, including some form of immunity for Porter, are being discussed and argued today. So stay tuned.

Camille Cosby will not be going into a deposition today in that defamation suit against her husband, Bill. A magistrate has granted Mrs. Bill Cosby a reprieve. One she really wanted. It is a reprieve of sorts, because while she appeals this - this order requiring that she be questioned under oath by opposing lawyers, it's still not sure that it's going to be not temporary. Plaintiffs are among at least 50 women who accuse Bill Cosby of molesting them.

[12:29:45] And in Rhode Island, more than two dozen former students at a prestigious prep school are claiming that they were sexually abused by school employees, and that it went on for years, and that the school did nothing about it. One former student who sued the St. Georges school once before says that she was raped repeatedly, but the original suit was dropped, however, and then a gag order kept her from being able to say anything about it.