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Legal View with Ashleigh Banfield

Supreme Court Rejects Review; Parents of NBC Cameraman With Ebola Hold Press Conference; Doctor Says Treat Ebola Like Terrorism; American Arrested at Airport on Way to Join ISIS

Aired October 06, 2014 - 12:00   ET

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

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

First up, a rejection by the highest court in the United States over same-sex marriage. And on the surface, it kind of sounds like the end of the line for those fighting for marriage equality, but quite the opposite. Instead, it will more than likely pave the way for gays and lesbians in several more states to be able to tie the knot. In fact, effective today.

Just this morning, the Supreme Court just declared that it is staying out of the debate for now, for this year anyway. The justices rejected the request from five states to review their bans on gay and lesbian marriage -- Utah, Oklahoma, Virginia, Wisconsin, and Indiana. And at 1:00 p.m., an hour from now, Virginia will start issuing marriage licenses. Today's decision has no bearing on the 19 states where same- sex marriage is legal.

I want to bring in CNN's senior legal analyst and former federal prosecutor Jeffrey Toobin, as well as Sarah Warbelow, the legal director of the Human Rights Campaign, the nation's largest lesbian, gay, bisexual and transgender, LGBT, civil rights organization.

And, first, Jeff, to you. Some people are saying that they are surprised that the nine justices decided to take a path on weighing in on something that seems to be so critical in the American conversation right now.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I'm surprised. And, frankly, I'm pretty disgusted. I mean what are they, busy? You know, this is a big issue in this country. You've had courts all over the country issuing rulings on it. Many state statutes have been declared unconstitutional. This is why we have a United States Supreme Court. And I think it was a real dereliction of duty for them not to settle the issue for all 50 states.

But as you point out, a non-decision is a decision and same-sex marriage is going to become legal in a lot more states because of this non-decision.

BANFIELD: And, Sarah, if you could just pick up on that. It seems a bit confusing for folks who hear a lot of news headlines about same- sex marriages, bans, and then attempts to overthrow bans and challenges to bans and then stays. It gets confusing for a lot of people. So while it sounds, on the surface, like this is not good news, in fact, it's very good news for those five states and maybe even further, for additional states that are dealing with challenges. Can you explain that?

SARAH WARBELOW, LEGAL DIRECTOR, HUMAN RIGHTS CAMPAIGN: Yes. Look, this is incredibly exciting for the couples who live in the five states that are fairly immediately impacted by the Supreme Court's decision. You know, couples in Virginia can get married today, not a month or a year from now but today, and that's incredibly important.

At the same time, we're also very disappointed that the Supreme Court did not make the decision to take this up and make a final determination for the entire country. This doesn't help couples in the deep south, places like Alabama and Mississippi, who then have to continue to wait to have a resolution of their ability to get married.

BANFIELD: And, Jeff, that isn't likely to happen. I mean it's not as though anyone should hold their breath and wait for the Supreme Court of the United States of America to make a law that affects everyone in the United States of America?

TOOBIN: Not yet, although it will probably happen eventually, maybe next year, maybe the year after. But it's also worth noting that there are cases pending in all 50 states, including cases in the -- states in the deep south, and there have been judges in states like Texas, Oklahoma, Utah, which are hardly a liberal bastions and these federal judges have said, bans on same-sex marriage are unconstitutional and it's entirely possible that there are federal judges in Alabama and Mississippi who may say the same thing. But we do know the Supreme Court is staying out of it for all 50 states, at least for a year.

BANFIELD: And, Sarah, just update me. It's hard sometimes to keep track of where the bans are being challenged, when the bans are put in place and when, you know, bans are overturned. But what is the status right now on states where it is not legal for same-sex marriage because of, say, a voter ban that is not challenged in the court?

WARBELOW: Twenty-nine states at some point in time passed a constitutional amendment limiting marriage to one man and one woman. And then there are a couple of additional states that still have legislative bans, including places like Wyoming. But these couples in the five states where the Supreme Court has declined to hear the cases will be able to get married because effectively the Supreme Court overturned those states' bans.

BANFIELD: But there are still a whole bunch of bans on the books that either may or may not be affected by this. How does that work, Jeff?

TOOBIN: Well, because there is no Supreme Court ruling that says the United States Constitution, which applies in all 50 states, guarantees a right to same-sex marriage. There is no Supreme Court ruling. So it is still up to states and any legal challenges that resolve those state bans. So all those cases that are now pending will continue to work their way through the courts. The vast majority of cases in the past two years have been resolved with judges finding that there is a right under the Constitution to same-sex marriage, but it will still be a state-by-state slog rather than a Supreme Court ruling that covers all 50 states.

BANFIELD: I'm just following another story at the same time that I'm speaking with you, so I lost some of what you said, Jeff. But what I wanted to ask you, and forgive me if you've already answered it, is that, like you said, the justices, it's not like they're so busy. This is their job to hear these cases.

TOOBIN: It's true.

BANFIELD: But, ultimately, there are some politics that play out on the Supreme Court. There are nine of them and it takes a majority and there may be some jockeying for position, perhaps. Can you explain how that back-room maneuvering may be at play here, if it is at all?

TOOBIN: Right. It takes five votes to win a case at the Supreme Court, but it only takes four votes to grant review. So there weren't four votes today on the Supreme Court to grant review. There's a lot of strategy that goes on. It may be -- and this is speculation -- that the conservatives on the court were thinking, you know, we don't want to take a risk of a ruling that will go against our beliefs, so let's put it off until 2016 and maybe President Ted Cruz will appoint a justice to replace Ruth Bader Ginsburg, who will be more in our liking. The liberals may say, look, let's kick the can down the road a little farther. The facts on the ground will become irrefutable. You can't have same-sex marriage in 30 states but not in all 50 states. The momentum will become irresistible.

BANFIELD: Right.

TOOBIN: So you can see the thinking there, but I caution, that's just speculation. They're not saying why they ruled how they ruled.

BANFIELD: It's a very complex story. Jeff, you're the perfect person for it. Sarah Warbelow, you are, too. Thank you to both of you.

As I mentioned, I was following some breaking news at the same time and I want to take you to that right now.

The NBC cameraman who touched down a couple of hours ago in the United States, in Omaha, Nebraska, there's now a news conference underway and I'm not sure exactly who this is, who's speaking, but let's listen in to hear if there's any update.

UNIDENTIFIED MALE: Every possible measure will be taken to ensure that Mr. Mukpo receives the very best care and treatment that modern medicine has to offer, along with a signature dose of Nebraska niceness and hospitality for him and for his family.

Joining us today on the panel, Dr. Ali Kahn (ph), to my far left. Dr. Kahn is the dean of the College of Public Health at UNMC and also has extensive experience working with the CDC in treating Ebola in Africa. Seated next to Dr. Kahn is Dr. Bradley Britigan, dean of the College of Medicine at UNMC, president of the Nebraska Medical Center. And Dr. Britigan is also an infectious disease expert and specialist. Seated in the middle is Miss Rosanna Morris, our chief nursing officer and chief operating officer in the Nebraska Medical Center. A seated closest to me, I'd like to extend a very warm and personal Nebraska welcome to Dr. Mitchell Levy and Diana Mukpo, parents of our patient.

So with that, ladies and gentlemen, I'd like to open this to your questions. We will take questions online and over the telephone as well.

And who would like to start?

QUESTION: Do you know an exact instance where Mr. Mukpo (INAUDIBLE) come in contact with somebody with the virus or is it just too hard to tell?

DR. MITCHELL LEVY, EBOLA PATIENT'S FATHER: Well, he - I asked him about that a lot and he's not certain but he was around the clinic he was filming inside the clinic and around the clinic, so he had a lot of opportunity to be exposed. He does remember one instance where he was helping spray wash a vehicle with chlorine and he thinks he might have been splashed. But, honestly, he's not exactly certain.

QUESTION: How are his spirits right now?

DIANA MUKPO, EBOLA PATIENT'S MOTHER: He's enormously relieved to be here. Of course, it's still quite frightening, but he's hanging in and he sounds very strong and I think he shares in the relief of the rest of his family that he's been able to come back for good medical treatment here.

QUESTION: (INAUDIBLE).

MUKPO: Go ahead.

LEVY: He looks strong. He walked off the plane, gingerly he waved to us as we saw him from a distance wheeled into the room. And, you know, it's tentative and frightened, but I think he's strong and his symptoms are not more advanced than when he - when I talked to him before he left, which is a real relief to us.

QUESTION: (INAUDIBLE).

LEVY: He was on IV fluids before he left.

QUESTION: There are, by my account, reports of 40 physicians and staff working on Mr. Mukpo. But we've got room for 10 patients. If it got to a point where we had 10, you know, we had -- we were at capacity, what type of a staff would be needed to take care of something like that?

ROSANNA MORRIS, CHIEF NURSING OFFICER, NEBRASKA MED. CENTER: The team of 40 and growing, because we have had many individuals from physicians, nurses, technicians, other support staff who continue to want to volunteer and participate as part of the care delivery team, really is set up so we can create a 24/7 presence and the necessary resources for this patient. We have discussed our ability to assume more patients over the course of time and we would evaluate the needs of those patients and what we would need to do to supplement the team further. But at this point in time, he is receiving very good attention and we would re-evaluate that option if it were to appear.

QUESTION: (INAUDIBLE) and are you considering experimental treatments?

UNIDENTIFIED MALE: I'd just ask you to pull the microphones just a little bit closer. There are some that are having trouble hearing.

DR. BRADLEY BRITIGAN, DEEN, UNIV. NEBRASKA COLLEGE OF MEDICINE: So, I mean, with each one of these patients, therapy needs to be individualized. So we certainly are really considering all treatment options and, obviously, it will need to be discussed with him because ultimately, if there are experimental therapies involved, he's going to have to be willing to - and understand the risks and benefits of those.

QUESTION: What about the idea of a blood serum from someone who has survived Ebola?

BRITIGAN: Again, all things are being considered.

QUESTION: Do you think the way that Mr. Mukpo might be treated this time, of course, it's still too early to say, would be similar to Dr. Sacra in the sense that we saw three different kind of components to that treatment, that it isn't just one drug or one serum?

BRITIGAN: I mean I think it's going to be difficult to predict that. Certainly the standard therapies of managing the fluids and all of the other changes that go on in terms of the blood, electrolytes as they're called, is going to be standard. You know, the other forms of therapies that -- will be considered again are going to be individualized to him.

QUESTION: What did you guys think when your son first went over to Liberia knowing the risk?

LEVY: Well, I think we both had similar reactions. Our son is very strong-willed and determined and has always lived by his integrity. And he made a strong connection for the two years that he lived there with the Liberian people and their culture and he felt compelled to go back. When he told me, I asked him if he was crazy. And, obviously, did everything I could, and I know Diana as well, to dissuade him. And at the same time he made it clear that he felt like this is what he was trained for and he really had to do it. And he felt that he understood the risks and that he was putting himself in harm's way, but that's how he wants to live his life. I still think --

QUESTION: (INAUDIBLE).

LEVY: I'm sorry?

QUESTION: When did he - when did he go over?

LEVY: I think he went back over --

MUKPO: It was about the 4th of September. Yes.

QUESTION: He had been there before, right?

LEVY: Yes, he had come home just in May from being there working with an NGO for two years.

QUESTION: What did you say to try to dissuade him?

LEVY: I told him I thought he was crazy.

MUKPO: And I begged him from a mother's perspective. I said, please don't go. But there was nothing to do. He was determined.

LEVY: I told him about the risks, what I knew about Ebola, and why I thought it wasn't a good idea. The difficulty of getting treatment once he got there if he did get sick. All the things that any of us would tell our friends or our patients or our loved ones. And none of it worked, obviously.

QUESTION: I'm guessing you probably had this kind of conversation, maybe not about Ebola, but maybe other things we (ph) journalists get (INAUDIBLE) that question.

LEVY: Sure.

QUESTION: (INAUDIBLE) going into a war zone. Has that -

LEVY: Yes.

QUESTION: Have you ever had that sort of conversation before?

LEVY: Yes. Sure. When he first went to Liberia to work for the NGO. He graduated from London School of Economics and Columbia University. And he went to work for an NGO in Liberia. I'm proud of him and, at the same time, I would prefer that he went somewhere safer, as a parent.

QUESTION: What did he do for the NGO?

LEVY: He was doing writing and field work, looking at the relationship between the Liberian people and big industry.

MUKPO: And the conditions of the workers in the mines.

QUESTION: Has he expressed any regrets or second thoughts now since what has happened or has he realized, well, I knew what I was getting into?

LEVY: It's both. His first reaction was, I'm sorry I put myself in this situation for you guys. So his first comments were more concerned about what it would do to us. But I think, of course he's probably of two minds. He has some regrets and at the same time he's still is proud of what he's doing and I'm sure he will go back to doing things just like this.

UNIDENTIFIED FEMALE: Have you talked to Dr. Rick Sacra? Has he reached out to you and your family?

MUKPO: We have not spoken to him.

UNIDENTIFIED MALE: Looking at your son's Facebook page, he's passionate about the people of Liberia and getting them the help and recognition that they need.

Does that kind of show who son is, a big-hearted person wanting to make a difference in the world?

MUKPO: That is Ashoko in a nutshell, and we're very proud of that.

LEVY: I would add strong-willed to that.

UNIDENTIFED MALE: (Inaudible) Dr. Rick Sacra did end up back in the hospital over the weekend.

Is there any indication, although he was found to be Ebola-free, is there a chance that this virus is mutating in any way or might be changing in some way so that each patient's different in the treatment?

UNIDENTIFIED MALE: Not at this point, so as you know, the --

BANFIELD: We've been listening to this news conference in Nebraska where this most recent U.S. patient has been brought, who has contracted Ebola.

At this point, this NBC cameraman is apparently, according to his parents, strong, which is a good sign, and not only that, apparently feeling like his symptoms haven't advanced any further than when his parents spoke with him before he had arrived here in the United States, Ashoko Mukpo's family not only speaking but the team of apparently 40 caregivers and growing at the Nebraska hospital where he arrived just earlier this morning.

And my next guest calls Ebola, quote, "the ISIS of biological agents." Dr. Alexander Garza is the associate dean at the St. Louis University College of Public Health and former chief medical officer at the Department of Homeland Security.

I'm also joined live here by Dr. Amar Safdar, who's a professor and infectious disease expert at New York University.

And I'd like to start with you, Dr. Garza, if I may, because that is a bit of a chilling analogy, that it's the ISIS of infectious agents.

Does that mean it's that deadly or that dangerous or just that it needs to be treated with the same kind of strategy?

DR. ALEXANDER GARZA, ASSOCIATE DEAN OF PUBLIC HEALTH, ST. LOUIS UNIVERSITY: I think it's a little bit of both, Ashleigh, and so if you think about Ebola as an agent that spreads throughout and kills innocent people, it's directly like ISIS, right?

It infects people and it kills people, and so the response, if we're calling this a national security issue, needs to be equivalent to if this was a form of terrorism, meaning we have to attack the problem overseas, like we do with terrorism and like the president is doing, sending the military.

But we also have to protect the homeland, screening passengers and doing all of those other efforts to protect the American public.

BANFIELD: And, Dr. Safdar, if I could get you to weigh in on what you heard from Nebraska, hearing that this NBC cameraman hasn't progressed in any of his symptoms, is that excellent news, or is every case so unique that it's really just good news for now?

DR. AMAR SAFDAR, ASSOCIATE PROFESSOR, NYU LANGONE MEDICAL CENTER: Sure. That's a great question in the sense that, if someone develops infection and so this is exposure and then developing the disease, fever, joint aches, flu-like symptoms, vomiting, and diarrhea, and if they don't progress, and if they remain clinically stable, there is, however, a pattern of disease, which is biphasic, which is people develop infection, they will develop fever, they will develop symptoms, and they will actually get better.

And then a small group of patients among those may progress to develop the severe disease that we have seen on television and what we have seen in the folks that were brought back from Liberia, the first two patients, or the three patients, I should say.

BANFIELD: Dr. Garza, I think it's so confounding for so many people, to hear how some people who have contracted Ebola are doing better, and maybe it was because of the experimental therapies performed on the first two patients, but no one is really clear if that's the reason or not, but the Dallas patient has apparently been downgraded.

Does it really depend on who the patient is, or is it how much they have been exposed to? Or why is it that some people can really cycle out of this and some people it's exponential, the decline?

GARZA: Really, Ashleigh, it's all of the above. So it depends on the infected dose, how much you have been exposed to, how much the bodily fluid you have been exposed to.

But also it depends on the patients themselves, and let's not forget the disease is prevalent in some of the poorest parts of the world, in western Africa where there is malnourishment and not good medical care.

And so it's only natural that it's going to very deadly in that sort of the environment.

But it does. It depends upon how much dose you have, and it depends on the condition of the patient.

BANFIELD: And of course the reason I ask you that is because you've been pretty outspoken about how much so much more needs to be done to try to put up the barriers to Ebola arriving in the United States, before it gets anywhere near the United States.

But ultimately, if somebody looks and sounds healthy and strong, there's not a whole lot you can do, is there?

GARZA: No, there isn't a whole lot. And let me preface what my arguments were in the "New York Times." I think they are very common-sense things of looking at passengers coming from affected countries, and my analogy was always to terrorism. So we know where people travel around the country. Homeland security knows that. The intelligence agencies know that. We know where people are traveling from these countries in western Africa.

And it's not that they are bad people. It's just that they are at risk of harboring this virus. And so it was a common-sense, I think, suggestion for us to maybe take another step on the incoming passengers coming into the United States to take one more look at them before they disperse out into the United States.

SAFDAR: May I say something?

BANFIELD: Yeah, please do.

SAFDAR: I'm really concerned with the analogy of terrorism and bioterrorism. This is a natural epidemic. This really was spread --

BANFIELD: Let me preface what you are suggesting, because there have been some headlines saying that all ISIS would need to do is send a few of its suicide killers into an Ebola-affected zone and then get them on some mass transit somewhere where they would need to be to affect the most damage.

That's what you're referring to?

SAFDAR: Yes. So the story with that is that it's not an easily communicable disease. It's not SARS. It's not MERS. It's certainly not influenza, and it is not the swine flu and the bird flu that we have encountered.

So patients who develop this infection and become sick with this, by the time they get to a point where it is easily transmissible, they are very ill, so they are not taking buses and subways and exposing other people.

It is not spread by casual contact. It is not an aerosol delivery of the infection. It's close, repeated contact with bodily fluids.

So the infection, the way it's transmitted, is quite different than what you would expect that infection that can be easily facilitated and transmitted to masses out there.

BANFIELD: I have to wrap it there, but Dr. Safdar and Dr. Garza, thank you both. Stick around, if you would.

I've just got some breaking news that I want to bring you on ISIS. In fact, we've just learned that an American has been arrested for trying to join ISIS.

I've got the details coming into me now. I'll bring them to you right after the break.

(COMMERCIAL BREAK) BANFIELD: Some fascinating information coming to us courtesy of the U.S. Justice Department. There has been an arrest made of someone apparently who is alleged to have been interested in heading overseas from the comfort of the American confines to join ISIS, the Justice Department actually responding and sending out information that a 19- year-old U.S. citizen by the name of Mohammed Hamzah Khan was arrested at Chicago O'Hare Airport as he tried to make his way overseas.

Our CNN justice correspondent Evan Perez is joining me with the details. How much more do we know about this arrest, Evan?

EVAN PEREZ, CNN JUSTICE REPORTERS: Ashleigh, we know that he was arrested on Saturday as he went to the O'Hare Airport. He was at O'Hare Airport trying to get through security for a flight to Turkey via Vienna.

According to the affidavit that's been filed in court, the criminal complaint that's been filed in court there in Chicago, the FBI says that, while he was at the airport, agents showed up at his house and conducted a search of his bedroom, of his parents' house.

They found documents indicating that he supported ISIS. He even left behind a letter for his parents, telling them not to talk to authorities about his trip to Syria, explaining that he was supporting ISIS, and that's according to the FBI, Ashleigh.

BANFIELD: So, Evan, one of the other things I just wanted to highlight, and it may be nothing and it may be something. I'm not sure which. They recovered a lot of handwritten documents --

PEREZ: Right.

BANFIELD: -- when they executed that search warrant at the house. That's what you're referring to. But within that, they appeared to be drafted by Khan and/or others.

Does that mean that we could see other arrests, that they are on the trail to others who might have been working hand-in-hand with this alleged perpetrator?

PEREZ: Ashleigh, that's the key issue, right? The FBI is trying to get to the bottom of who is recruiting these young people. So far we know that there's a lot of recruitment, a lot of self-recruitment, frankly, by these young people, reading the Internet. They're sitting in their parents' house, and they're deciding to go over there and fight the fight.

This key is trying to find that there are people who are providing money. Now this guy was able to buy a $4,000 plane ticket, 19-year- old. That's a lot of money. So the key here is to try to figure out whether there's someone who is supporting some of these fighters and are sending them over to Syria.

We'll keep an eye on this case to see if there are any other charges that are brought forward, Ashleigh.

BANFIELD: Stand by, if you would, Evan.

I want to bring in Rick Francona and Paul Callan with me. And, Paul, first to you, the charge that the U.S. Department of Justice is telling us he's facing is attempting to provide material support to a foreign-terrorist organization.

It's the kind of charge we've heard associated with so many of these people who have either worked somewhat with al-Qaeda, have made plans, gone to training camps, that kind of thing.

How serious is it when it's an attempt?

PAUL CALLAN, CNN LEGAL ANALYST: Well, it's very, very serious, but it's very hard to prove, because, remember, you can have a thought, an evil thought, in the United States about joining an enemy of the United States.

The law says that thought translates into a crime only when there has been substantial progress towards completion of the crime. And --

BANFIELD: What about just simply acting on those thoughts, going to the airport, purchasing that ticket, clearing customs? Is that enough?

CALLAN: I do not believe that that would be enough. I think a federal judge would throw that out.

On the other hand --

BANFIELD: I've seen murder conspiracies where no one picked up any weapons or money.