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Party Favors; A Father's Fight; Court Martial for Being Pregnant; Christmas Trees for Rent

Aired December 21, 2009 - 23:00   ET



ERICA HILL, CNN ANCHOR: Good evening, everyone. I'm Erica Hill in tonight for Anderson Cooper.

Tonight, your money. is it being used to buy votes for health care reform instead of spending it on actual health care reform? The perks some on-the-fence lawmakers scored ahead of that crucial vote. We're "Keeping them Honest."

Also tonight, "Digging Deeper" as a Brazilian court prepares its decision on whether an American father will take his son home. A battle he's been fighting for five years now. We'll speak with David Goldman and a spokesman for the Brazilian family fighting to keep Goldman's son Sean with them.

But first up, we are "Keeping them Honest". Health care and the power of one, early this morning the Senate shutting down debate on health care reform and moving it toward a final vote. Now, remember, it takes 60 members to do that. All 40 Republicans oppose the bill, meaning any of the 58 Democrats and two independents, any single lawmaker, is a potential veto. And in Washington, that is serious power.

So with that in mind, take a look at three senators who might have killed the reform package but didn't. From left to right here, Senators Ben Nelson, Chris Dodd and Bernie Sanders. Now, in a moment we'll show you what each of them got to stay on board and just how much it's costing you.

But who is that fourth guy, you ask, the one at the end, the right, with the mustache, in military uniform? And why is he in the mix? He's actually the man who coined the phrase that probably explains why so many people have such mixed feelings about what's going on all this year with health care.

That's German Chancellor Otto Von Bismarck who says laws are like sausage, it's better not to see them being made. "Keeping them Honest" now on the price you are paying for it. Here's Dana Bash.


DANA BASH, CNN SENIOR CONGRESSIONAL CORRESPONDENT: When it comes to senators holding out votes for back room deals, this one is a doozy, one sweetener given only to Ben Nelson's home State of Nebraska. Part of what Nelson got in return for his vote is right here on page 98 of the compromise.

The federal government will pay 100 percent of Nebraska's tab indefinitely for expanding Medicaid for low-income Americans. And when we asked the Democratic leader, he revealed Nelson wasn't the only one getting special deals.

SEN. HARRY REID (D), MAJORITY LEADER: Dana, I would say this. If you read the bill, which I'm sure you will, you will find a number of states are treated differently than other states. That's what legislation's all about, compromise. It's compromise. We worked on different things to get a number of people's votes.

BASH: Like Bernie Sanders, the liberal senator was unhappy Democratic leaders dropped a public option and said this a few days ago.

SEN. BERNIE SANDERS (I), VERMONT: It is not for sure that I will vote for that bill.

BASH: Suddenly his home state of Vermont got some extra help from Medicaid, too. But to clinch Sanders' vote, Democrats added his pet project, $10 billion for community health centers nationwide.

SANDERS: One new provision that was placed in the health care reform bill by Majority Leader Reid and I want to thank him very much.

BASH: Republicans accuse Democrats of bribery.

SEN. ORRIN HATCH (R), UTAH: Chicago-style, back room buyouts at the expense of the American taxpayers.

SEN. CHRIS DODD (D), CONNECTICUT: Sweetheart deals which make this thing begin to stink to high heaven.

BASH: But Democrats didn't just slip things in to win votes to pass health care, they also showed who's got power, senators with clout added provisions to help themselves back home. Chris Dodd's support for the bill was never in doubt.

DODD: This bill is long overdue and critically important.

BASH: But the Connecticut Democrat facing a tough re-election battle buried $100 million in the measure for a new hospital. Other states can compete for it but he put it in hoping Connecticut gets the hospital.

DODD: It doesn't involve just my state, although my state is very interested.

BASH: And it doesn't stop there.

The Democrat's health care bill slaps new taxes on insurance companies, but not for Michigan's Blue Cross/Blue Shield, thanks to the state's Democratic senators, Carl Levin and Debbie Stabenow, who got an exemption.

Senate Majority Leader Harry Reid is unapologetic and even appeared to mock senators who did not cut deals for themselves.

REID: I don't know if there is a senator that doesn't have something in this bill that was important to them. And if they don't have something in it important to them, then it's -- doesn't speak well of them.


HILL: Dana, that's quite a statement from Harry Reid. And even if this is the way that laws do always get made and a bill gets passed, it's rare that the party giving the concessions actually admits it, which I don't imagine sitting so well with the folks on the other side of the aisle.

BASH: Well, they're enjoying it. In fact, Harry Reid put that right on the political "T" for Republicans, all they had to do was swing, Erica and they are swinging.

Republicans at the campaign committee, they are blasting Democrats who didn't get a special favor for their home states, especially Blanche Lincoln. She is somebody who has got a tough re- election battle next year in Arkansas. That is a relatively poor state. So Republicans are already saying, wait a minute, why didn't you get anything special for your constituents.

But let's be honest and let's be clear here, Erica, as you know, Republicans mastered the art of back room deal making when they were in charge here. So this is very much bipartisan. Nothing has changed.

HILL: A lot of pot and kettle calling one another. And it's not just senators, though, who got things in here. Interest groups as well. The American Medical Association, in fact, finally endorsed the bill today but they got a little something in exchange as well.

BASH: They sure did. You remember that notorious tax -- five percent tax on cosmetic surgery that became known as the Bo-tax, that's gone. Democrats dropped that. And they did it and they replaced it I should say with a 10 percent tax on tanning services, indoor tanning services. Why did they do that?

The American Medical Association, when they endorsed it today, they said point blank one of the reasons is because Democrats jettisoned that five percent tax on cosmetic surgery. But the American Medical Association, as you can imagine, they hated that. They thought that was bad for their doctors. Now it's gone. And the Democrats got their endorsement. Let's make a deal is going on all over town -- Erica.

HILL: And we haven't heard from the tanning parlors yet. Maybe they're next to step in. Dana, thanks.

BASH: They're hiring lobbyists as we speak.

HILL: Seriously, of course, none of this is over yet, the debate, the sausage making, whatever you want to call it. That's because whatever of course comes out of the Senate this week well then, needs to be reconciled with a very different House version of health care reform. And then all of that shaped into a final bill.

The "Raw Politics" now from Tom Foreman who joins us with that angle. Hey, Tom.

TOM FOREMAN, CNN CORRESPONDENT: Well and Erica, you hit the nail right on the head there.

Look at this. The differences the Democrats have to sort out. Forget about the Republicans to all of these, the Senate and the House version, look at the public option. This is one of the things they wanted. Over in the Senate side, they said, no, no public option. Over here on the House side, they said, yes, we want a public option.

So how are they going to sort this out? Well, the simple truth is the Senate has put in another provision that basically says that we will have these non-profit private insurance programs as sort of a substitute, but this is still going to be a bitter pill to swallow over here on the House side.

Even though most people say there won't be a public option, some people over here are really going to have embrace that now it if they want to reconcile these two bills.

So the constituency they have to be worried about here, right there, the liberals particularly over here on the House side who are going to be upset about this -- Erica.

HILL: And then there's also, Tom, the issue too of abortion which is a major sticking point in abortion restriction.

FOREMAN: Absolutely. Let's bring in abortion and look at what they did on this. Over here on the Senate side, they said, ok, we will have a provision here that keeps any federal money being spent on abortion. Over here on the House side, they said, we will have a provision that will keep any federal money from being spent on abortion.

So they're in agreement. The problem is, neither side wants it. Not a lot of the hard core Democrats on either side. They only agreed to this measure as a way of keeping the bill alive and moving it forward. And many of them are counting on being able to take that provision out before they get to the final bill and there are going to be fireworks of over that.

So you know which constituency here is the worry, one don't you -- Erica?

HILL: Yes, we do and...

FOREMAN: Absolutely. It's going to be women. That's going to be a big issue for the Democrats here.

HILL: And getting that out, I have a feeling is much easier said than done, as they move forward with reconciling. Too cost is also a big issue. And that is addressed differently in each version of the bill.

FOREMAN: Absolutely. In each case they've been able to say, look, we checked it out with the CBO and this is a program that will ultimately pay for itself. But up front you've got to pay for a lot of things.

Over here on the Senate side, they like the idea of saying we will tax those Cadillac plans, as they call them. Very generous health plans that some people may have. Over here on the House side, they're not so fond of that. The reason they're not so fond of it has to do once again with the constituency.

It has to do largely with unions because unions have supported the Democrats a great deal. Many of them some years back, negotiated contract where they got very good health care plans because they couldn't get a lot of money from their companies back then.

Now they're going to be told, well, or possibly will be told the deal; now you're going to have to pay for those plans and oh, by the way, the money you didn't get, that's what you're going to have to use to pay for the plans.

Plus, fiscal moderates, big issue on this one -- Erica.

HILL: Yes, not a lot of people are happy about that one, also, illegal immigration is figuring in here.

FOREMAN: Yes. That's the last one in here that we're really going to talk about. Over here on the Senate side, they said, no, we do not want illegal immigrants to be part of this health care reform. However, on the House side, they have said, well, look, we think that if they'll buy it with their own money they should be able to buy into whatever program is available out there.

So of course, the constituency they need to be worried about, Latinos here.

The truth is, Erica, some Democratic analysts say that there's probably about 80 percent agreement between the House and Senate, maybe even 85 percent, on the major points that they have to consider in this. So they should be able to reconcile.

But do watch very closely, all these interest groups here, the liberals, women, unions, fiscal moderates, and Latino groups out here because all of them are really being caught in the vise between these two sides as they try to sort this out and reconcile this and produce a bill that they can pass as a complete Congress and that's very touchy.

And the reason it's touchy is because every one of these groups played a critical role in giving the Democrats the power they have right now and all of them will be involved in the election next fall, too -- Erica.

HILL: And there is no ignoring these midterm elections. Tom Foreman, thanks. We would like to know what you think about the bill, about health care reform and tell us whatever is on your mind actually. You can do it all at the live chat that's under way now at

Just ahead, our panel though, is going to join in on the conversation over health care: David Gergen, Tanya Acker and Michael Gerson with us tonight.

Also, David Goldman is joining us. Fighting to get his son Sean back after years apart and waiting again for the highest court in Brazil to issue a ruling in a custody case that is causing heat and heartache on two continents.


HILL: Health care reform topping the agenda tonight along with Republican allegations that the bill is frankly so flawed the only way to secure the necessary votes is to buy them with pork, money for pet projects.


SEN. TOM COBURN (R), OKLAHOMA: This process is not legislation. This process is corruption.


HILL: Republican Senator Tom Coburn yesterday. Now, in fairness Democrats made the same allegations six years ago when the Bush administration ran the Medicare bill through the then Republican House.

We're going to talk strategy now with senior political analyst, David Gergen; Huffington Post contributor, Tanya Acker and "Washington Post" columnist and former George W. Bush speechwriter, Michael Gerson. Good to have all of you back with us tonight.

David, as we start off here, a little bit of -- not a little bit, it was a victory for Democrats, obviously, last night but it's somewhat short-lived as we just talked about with Tom Foreman because, of course, marrying these two bills and getting that all together, is there really reason to celebrate tonight in the Senate?

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Well, it's a major reason to celebrate to get it through the Senate after seven presidents have tried, seven have failed. This is the first time a universal health care bill has passed the Senate. So Democrats can take great heart in that.

At the same time, I think the sense of victory has been dampened by these stories of these back room deals. You know, we've always known that deals were being made in the back room, but now in the age of cable news and blogs, they've been brought into the front parlor. And a lot of people are now seeing them and they don't like it.

And with a bill that already was -- had a lot of people against it -- had a majority against it -- I think that this sends exactly the wrong signal, it's something so easy for people to grasp. When seven different senators get breaks for their states and everybody else has to pay the bills. And they get breaks for their states, they get angry.

And I think this was not a good night for the Democrats in that sense to have this story now passing around the country.

HILL: And Tanya, how do you reconcile that? Because even as we talked about that with Dana a little bit, look, I mean, this is for the most part a lot of times how bills do get made or the sausage, but nobody likes to see the process. And it is rather remarkable to hear somebody be so blunt about the process. And as Dana said, really Senator Reid was just teeing this one up for the Republicans.

TANYA ACKER, HUFFINGTON POST CONTRIBUTOR: Well, I don't know that he needed to really draw attention to it, but the fact is, is that this always happens. I mean, I'm frankly a bit surprised by the notion that people are somehow taken aback by this back room dealing. This is how legislation is always made -- sadly and unfortunately, this is the legislative process in this country.

I mean, I find it curious that the GOP are now complaining about this when Mitch McConnell in the last spending bill requested $51 million in pet projects for Kentucky, when you've got folks like Lisa Murkowski asking the United States taxpayer to pay for the construction of a fairground in Alaska. Senators or Congress people, unfortunately sadly, always do this. This is not new with this bill.

HILL: Although they don't always admit it as readily as it was admitted this time around.

Michael, Tanya just brought up of course Senator Mitch McConnell, who has said, he's holding out hope that the reform will be killed when it gets to a conference committee. Plenty of talk as well from Senator Lindsey Graham who equated this issue Chicago-style politics, Enron accounting and that the concessions simply look, like bribery. But as Tanya pointed out, it's not like Republicans have never done this.

MICHAEL GERSON, FORMER G.W. BUSH SPEECHWRITER: Well, it depends on the degree here. I mean, Senator Reid really won ugly in this case. And, you know, I spent some time in the -- as a Senate staffer. And seldom was the kind of almost bribery that you see in this case as raw or as venal.

And it had a consequence. There's literally no reason Nebraska should be treated -- given a different deal on Medicaid reform than, say, Iowa, right next door. And all the states realize this.

So eventually there's ALL THIS grumbling among other states saying, we're going to demand this same kind of deal eventually. That really undermines the theory of Medicaid, which is supposed to be a federal state responsibility and it eventually blows another hole in the federal budget. It was a deal, not like these others, it had a much broader public consequence. HILL: And we should also point out, too, that there are the American people at play here who have not weighed in and voted on this as lawmakers have. But they have weighed in a number of polls. In fact the latest CNN/Opinion Research Poll if you look at the numbers, right now 56 percent oppose what they know of the Senate health care bill; 42 percent are in favor.

Now, those numbers are up a little bit. But still, with the public not supporting the bill, criticism that the Democrats pushed it through anyway, how do you reconcile that, David, especially in the face of these crucial mid-term elections?

GERGEN: Well, I must say this, Erica.

It has -- it is a noble goal to try to get all Americans insured. You know, we're the only Western industrialized nation that does not provide health insurance for every one of its citizens. So -- and this has been a dream of the Democratic Party for well over 60 years.

So, and there are many Republicans who support that. It's the way they've gotten here and now the confusion over what's actually in the bill. And now we hear, as Michael just said, that they're going to raise Medicaid costs in all states except those like Nebraska which got an exemption when they got their vote bought off. And that is going to stick in the craw of a lot of people.

I must say one other thing about it. I cannot remember a time in the last -- maybe somebody can correct me here -- but over the last half century, when a major piece of social legislation has passed the Congress, in the teeth of public opposition. Going all the way back to social security, every major piece of social legislation that I can identify has had the public and support of it at the time of passage.

This is very unusual. The Democrats are taking their chances. It's a noble goal but they have not persuaded the public that this particular bill, this particular reform effort, is wise.

HILL: And unfortunately we're going to...

ACKER: And I...

HILL: ... go ahead, Tanya, just quickly.

ACKER: Well, quickly, I think the part of the reason why you've seen lagging public support is that the public has forgotten some of the good parts of this bill; the fact that 30 million Americans are going to now have insurance that don't have it; the fact that insurers will no longer be able to deny people with pre-existing conditions from coverage.

I think, we've spend a lot of time with the fighting and the deal making and not a lot of time about talking about what benefits this bill will provide. I think that's why you don't have public support right now.

HILL: Well, the good news is we are far from done when it comes to talking about health care reform. So that is one that we can definitely tackle in the coming days. For tonight though, that we're going to have to leave it there.

David Gergen, Tanya Acker and Michael Gerson, I appreciate your input.

ACKER: Thanks.

GERSON: Thank you.

HILL: Just ahead, his wife fled to Brazil with their son five years ago. She then re-married and recently died. Now David Goldman's fight to get his son back is coming to a head in Brazil's highest court. We'll speak with him and also with a spokesman for the family he is battling. And that's coming up right after the break.


HILL: David Goldman has been waiting for five years. Today he learned it would be at least another day before he'd learn perhaps once and for all whether he can take his son Sean home from Brazil. Sean -- abducted the boy from the United States in 2004 taking him to her native Brazil. And after a court there ruled last week Goldman could indeed take Sean home, a stay was issued while the case was reviewed further.

And then on Friday, Brazil's Attorney General sided with Goldman. And the final ruling was to be issued today. But like so many other times in this ordeal, hope was snatched away from Goldman. That decision postponed for another day.

"Digging Deeper," I spoke with a frustrated David Goldman earlier by phone from Brazil.


HILL: First of all, when you heard the news today initially you were told you're going to get a ruling today and then just a little bit ago with the world came down that it's not coming until tomorrow. What does that do to you?

DAVID GOLDMAN, SON WAS TAKEN TO BRAZIL BY WIFE (on the phone): Par for the course. That's why all these questions and everyone ask me all these things and I tell them I'm hopeful. I've been doing this for -- and agonizing over five years now. And time and time again, I come down here to bring home my son and I get the same thing. And just the plain, simple fact that Sean and I should be together is not happening. It is very, very sad.

HILL: I know you've seen -- and correct me if I'm wrong -- but I think you've seen your son Sean four times this year. When you have those moments with him, what are they like? What do you guys talk about? Does he ask you questions about grandparents and family back here in the U.S.?

GOLDMAN: He -- the first day we met, he asked me where -- where was I, why didn't I come and get him. And we're going over pictures and he was remembering things and he was -- it was -- it was -- he was nervous. And I tried to explain to him that I've been to see him many times.

I brought his grandmother. I brought his grandfather. I've come with other relatives and friends, always to see him and come back home. And for one reason or another, there was just different issues that we weren't able to see each other.

HILL: I know you said that were he to come home with you and that is what I think pretty much almost everyone is hoping for at this point, that you wouldn't keep him from his Brazilian family; you would allow them to visit. They have said that if the judge does rule in your favor, if the court rules in your favor that they would at least like Sean to stay with him through Christmas. They feel like it would be too traumatic for him to leave before then.

Would you consent to that? Would you be all right with him staying through the end of the week in Brazil to celebrate the holiday there before coming home?

GOLDMAN: How about a new beginning, how about let's go home for Christmas? Didn't we just get a record snowfall?

Let's go home -- let's go home with your dad and you're cousins and your other grandmother and grandfather who have been forcefully kept out of your life by an illegal abduction? Let's come home and have Christmas.

If they want to bring their mittens and hats and follow him along sometimes, that's their prerogative.

HILL: I know the attorney for the family has also said that they would like to have negotiations with you, but on the condition that Sean not go to the states right away and they really don't feel that this should be an issue between countries that it's just going to be an issue between families. How do you respond to that?

GOLDMAN: Well, they haven't said any of that to me. And again, this isn't a negotiation type of situation. He's illegally held. He is recognized by this country as being illegally retained.

HILL: And David, when you do get to see Sean again and hopefully when that moment comes for you when you are taking Sean home, what are some of the first things you're going to say to him?

GOLDMAN: Again, it all depends on the situation that we are able to reunite. My first -- I will be calm and I will see how he is doing. And I will assure him that he is loved and I will take it from there.

HILL: David Goldman, we really appreciate your time tonight. And we will be following this closely tomorrow.

GOLDMAN: Thank you.


HILL: We just heard from David Goldman. As you know though we don't take sides on 360 and so we've asked the lawyer for Sean Goldman's Brazilian family he's living with now to join us as well tonight. His name is Sergio Tostes; he's with us now on the phone live from Rio.

Thanks for being with us. I know you just heard David Goldman who says quite simply, he believes your client kidnapped, abducted his son. How do you respond to that?

SERGION TOSTES, ATTORNEY FOR SEAN GOLDMAN'S BRAZILIAN FAMILY (on the phone): No, my client did not abduct or kidnap the kid. Not whatsoever. There has been sense that as going in court for five years. And what Mr. Goldman says does not exactly reflect what was the first court decision.

The first court decision, when the mother was still alive was that Sean should be kept where he was, having a normal life. And Mr. Goldman always had the opportunity to visit his son. And he didn't visit while the mother was alive because he did not want to; just by legal strategy, as I said on television. That's why he was not coming to see the son because his lawyers had advised not to so, otherwise he would lose his prerogatives...

HILL: But you...

TOSTES: ... under the Hague Convention.

HILL: Sir, you also point out, though, that this was when the mother was still alive. His ex-wife, Sean's mother, has since passed. And so Sean is now with his stepfather's family. A lot of people look at that and say, look, if this little boy has lost his mother, why should he not be allowed to be with his father?

TOSTES: Yes. The question is this. The boy went through a tremendous situation when the mother died. And the father have not seen him for four years at that time, what the family says that let's sit down and talk. Let's have a normal conversation.

Let's have David Goldman come back to be with his -- with his son and let's think how -- let's see how things go from there.

What I'm offering now is to negotiate my first offer. And my first offer was to lay down the weapons because this is not a battle between countries. We are talking about a little boy. And what the family, both family, has to do is to come to an agreement and do something that's the better, the best for Sean.

HILL: Although this has been -- but this has become a legal issue. I did mention that, as I think you heard, to David Goldman earlier. He said he hadn't heard that directly to you. This has, in fact, become a legal issue.

There is the Hague Convention at play here and it is now in Brazil's highest court. So if the ruling is, in fact, in favor of Mr. Goldman tomorrow, are you willing to then let Sean go home with him to New Jersey?

TOSTES: Well, I'm not going to let you know my legal strategy, of course, but I have invited and Mr. Goldman knows that, I have invited him to spend Christmas with Sean so that way he can see with his own eyes the environment in which Sean lives. There's no torture whatsoever.

I invited Mr. Goldman. I have not received a response from him. The letter was delivered to him. Of course, was delivered to his lawyer. And that was shown in the press conference. Everybody knew it.

And we still expect to have word from Mr. Goldman. He is more than welcome to spend Christmas with his son, and the invitation is extensive to the representative who is with him in Brazil at this time.

HILL: Right. Sergio Tostes, We appreciate your time tonight. It is obviously a case that people are following very closely in both countries and it is pulling a number of heart strings. Thanks again for your time tonight.

TOSTES: Thank you.

Just ahead on 360 a top commander in Iraq now under fire after issuing an order that many say is down right sexist and, beyond that, illegal. The details and the backlash are ahead.

Plus, new rules for airlines designed to spare you a whole lot of pain on the tarmac. Will they work and when do they go into effect?

That's when 360 continues.


HILL: Randi Kaye here with a "360 Bulletin" -- hi, Randi.

RANDI KAYE, CNN CORRESPONDENT: Erica, the East Coast is digging out from the weekend storm that dumped 16 inches of snow on Washington. Nearly two feet on Philadelphia and about a foot right here in Manhattan. It stranded thousands of travelers and now another winter storm is taking aim at the Midwest. Forecasters say freezing rain in Chicago later in the week could ground or delay holiday flights at O'Hare.

Iran's president is dismissing a newly revealed secret document that allegedly shows Iran is developing a crucial component of a nuclear bomb. "The Times of London" revealed the existence last week. In an interview with ABC News' Diane Sawyer the Iranian president refused to look at the document and told her this.


DIANE SAWYER, ABC NEWS ANCHOR: This is the document that proves it. Have you been testing a neutron initiator? MAHMOUD AHMADINEJAD, PRESIDENT OF IRAN (through translator): I think that some of the claims made by the Americans and other Western statesmen about our nuclear issue have turned into a repetitive and tasteless joke.

SAWYER: Would you like to see this document? Is it a joke?

AHMADINEJAD: No, I don't want to see them at all, I don't. They are fabricated bunch of papers continuously being forged and disseminated by the American government.


KAYE: Ann Nixon Cooper of Atlanta has died. Now, you may remember President Obama talked about her in his election speech, describing how she's lived long enough to remember when African- Americans weren't able to vote and to finally be able to vote for and elect the country's first black president. Ann Nixon Cooper was 107 years old.

Russia's President Vladimir Putin is at it again showing off his tough guy cred. There he is -- take a look -- practicing recently with the national judo team. The 57-year-old former KGB agent is a black belt. And as you can see, he seems pretty eager to demonstrate those skills.

HILL: Rather. Yes.

KAYE: Oh, yes. He also took time-out to sign copies of his book, titled, get this "Learning Judo with Vladimir Putin".


KAYE: He also released a DVD under the same title last year. I don't know. I just don't see any of the U.S. Presidents or any other president, in fact, releasing a book about judo.

HILL: I wonder if they let him win, too. Sort of like, hey, it's Vladimir Putin, I'm just going to sit this one out.

KAYE: I think they better.

HILL: Yes.

KAYE: Probably a wise move.

HILL: Thanks.

Still ahead, being punished for being pregnant: A new order from a general in charge of more than 20,000 U.S. troops in Iraq says if a woman in his command gets pregnant, she will face court-martial. But is that even legal?


HILL: Tonight, one of America's top commanders on the ground in Iraq is not backing down from an order to his troops that many women say they find sexist, offensive, even illegal. Major General Anthony Cucolo who oversees more than 20,000 American service members in northern Iraq, says any soldier who becomes pregnant or who impregnates another soldier will be punished and face court-martial. The directive was made in November. The General says it's necessary during the draw down of forces in Iraq.

He also said, this quote, "Anyone who leaves this fight earlier than the expected 12-month deployment creates a burden on their teammates. Anyone who leaves this fight early because they made a personal choice that changed their medical status or contributes to doing that to another, is not in keeping with a key element of our ethos."

He said the rule does not apply to sexual assault or rape. He also told CNN it is lawful.

Joining me now to discuss: Kayla Williams, a former Army sergeant, she's also the author of the book "Love My Rifle More Than You: Young and Female in the U.S. Army;" and Thomas Kenniff who's an attorney and former JAG officer who represented soldiers in Iraq.

Good to have both of you with us.

Let's get this legal standpoint out of the way because we all know the military operates differently, Tom, and that you have certain rights as a civilian that you frankly don't have as an enlisted person and you know that heading in. Is this legal from what you know about it?

THOMAS KENNIFF, FORMER J.A.G. OFFICER: No, I don't believe it is. I mean, yes, you do sacrifice certain rights when's you put on a uniform, but even military orders and military laws are still subject to constitutional scrutiny.

If you look at the history of the Supreme Court, which ultimately has the final say on these sort of matters, in the last 40 to 50 years there's been a long line of cases that have vigorously defended the rights of private citizens as well as those in the military, wear the uniform, their right to privacy, especially with regard to intimate dealings, acts that occur between consenting adults behind closed doors.

So I understand that this may be expedient for this commander, but the standards are, you know, the constitutionality of the act and whether that would pass muster. I don't believe it would in this case.

HILL: Right.

And then from purely from the standpoint of the soldiers and the folks serving in Iraq, Kayla, as a former army sergeant, what's your reaction to this initially, your gut reaction?

KAYLA WILLIAMS, FORMER ARMY SERGEANT: I actually have mixed feelings on it. On the one hand, when I was in the military I was told that if we were sunburned so badly that we couldn't perform our duties, that we could face punishment. And in some ways they're roughly analogous, both can -- both pregnancy and severe sunburn can result from activities that are authorized that should be preventable using available precautionary measures and they can happen anyway despite your best efforts to avoid them.

So the concept of having this kind of punishment as a deterrent about risky behaviors that can prevent you from doing your mission, I understand.

On the other hand, my three major concerns are the prevalence of sexual assault, which is notoriously difficult to prove, as well as the unavailability of emergency contraception, such as Plan B, and finally, the fact that if a woman and the -- if both parents are in jail, this could provide serious detrimental effects on the child that results from the pregnancy.

HILL: A person could be jailed, Tom, in theory, if their court- martial while pregnant and then after that child is born?

KENNIFF: Yes, in theory; if the military was, in my opinion, crazy enough to bring a prosecution under this general order. And the person was convicted under article 92 of the UCMJ and for violating a lawful general order, they could face up to two years in jail. Practicality whether that would happen, that's another situation. I certainly hope it wouldn't, but it's possible.

HILL: Right.

We should point out here, this is part of a broader scope, of, I believe, 20 different regulations that were put forth, no gambling, no drinking. And also we should point out that as we mentioned off the top, whoever impregnates the soldier would be held to the same standards.

But there are still people, and Kayla, I want to toss it to you who say that this is still sexist because for women it's obviously much more difficult to hide a pregnancy than it is for a man to hide the fact that he may have gotten a woman pregnant.

How much of a stigma is that for a woman in the military?

WILLIAMS: I think that this is a very difficult situation for women in the military. As you mentioned, you know, women are obviously pregnant, but it's very difficult to prove who got a woman pregnant, especially during the pregnancy itself. It can't be required that she take a test to prove that.

One of the things that is so difficult for women serving, though, is the stigma that we choose to try to get pregnant in order to get out of a deployment or to get sent home early from a deployment. Because of that, a number of women that I know are not opposed to this and say this is well-deserved because so many of us are struggling to prove that we belong here, that if this is required to deter people from possibly trying to get out of a deployment in this way, maybe it's not a bad thing.

I'm not saying that that's the right answer, but it certainly leads to a vigorous debate on the issue.

HILL: It does. And it's interesting to hear that point of view, too, because it's one that probably a lot of civilian women may not expect.

Tom, Kayla brought this up earlier but you can take all the precautions in the world. Married couples are allowed to live together. A woman can be on birth control, a man could be using a condom. It's still possible to get pregnant. Part of these rules have also said no sex with Iraqi nationals.

Wouldn't it make more sense to simple say no sex period while you're deployed?

KENNIFF: Here's what we did when we deployed back in 2004. There were policies put into effect in the context of these type general orders that basically limited the time and place where soldiers could have sex, almost to the point of making it an impossibility. And that's how we tried to get around these sort of constitutional issues.

But again, if you put out a blanket no sex policy, period, you're running into the right of privacy, you're running into probably some equal protection issues, with just as Kayla was saying, yes, it's more ubiquitous for a woman when she is pregnant and obviously they're going to bear the brunt of these prosecutions even though the order itself may say that we'll prosecute the man who impregnated her because she's going to have her right to remain silent; her fifth amendment right not to reveal who that person was.

The man is going to have his rights to remain silent. So it creates a lot of very difficult issues. You have to be very careful.

HILL: It does. We're going to be hearing more from the general tomorrow on this as well. He will be speaking out.

Tom Kenniff, Kayla Williams, appreciate hearing from both of you tonight. Thanks.

KENNIFF: Thank you.

WILLIAMS: Thank you.

HILL: That is of course -- thanks again -- just one of the many stories making news, causing controversy this year.

Tom Foreman has been hard at work pulling together his end of year review, "ALL THE BEST, ALL THE WORST OF 2009". And since he's been working so hard on it, we thought you should get a preview tonight.

(BEGIN VIDEOTAPE) FOREMAN: Airplanes had their share of serious troubles, including the Air France Jet that disappeared over the Atlantic. But there were also some quirky incidents.

Worst navigation: the pilots who flew from San Diego to Minneapolis and then just kept flying, over-shooting their target by 150 miles before turning back.


UNIDENTIFIED MALE: We got distracted.


FOREMAN: Best improvisation, the miracle on the Hudson: one plane, a flock of geese, and a mind-blowing emergency landing in the river by Captain Sully Sullenberger.


UNIDENTIFIED MALE: Sully was great. He was right out of central casting. He was like the Clint Eastwood of airline pilots. I can just imagine him up in the cockpit when the geese hit the engines. He's like, "Uh, not on my watch."

JOY BEHAR, HLN HOST: I don't know if he was really lauded because he was able to land on the Hudson River or he just got a great parking spot in New York.


HILL: That's just a taste of "ALL THE BEST, ALL THE WORST OF 2009". Tom's full report airs this Thursday.

Up next, "One Simple Thing" celebrating the holidays and helping the environment with a new approach to getting the old family Christmas tree; you could just rent one. We'll show you how it works, when 360 continues.


HILL: Celebrating the holidays, helping the environment: a California businessman is finding a way to do both. He sells Christmas trees, but as you'll see he's also saving them as we continue our special series "One Simple Thing".

Here's Thelma Gutierrez.


UNIDENTIFIED MALE: So the next one is a 5 to 6 foot Monterey.

The next one is another 4 to 5 foot.

THELMA GUTIERREZ, CNN CORRESPONDENT (voice-over): You're probably thinking it's just another Christmas tree store. But it's not. It's one of those only in Los Angeles ideas that could eventually be coming your way next Christmas.


GUTIERREZ: Yes, Ramona, that would be the tree.

MEGAN ARQUETTE, TREE RENTER: She's maturing. She's maturing. She's becoming a woman.

NICK ARQUETTE, TREE RENTER: Child bearing hips.

GUTIERREZ: It's been a year since Ramona last visited the Arquettes in Manhattan Beach.

N. ARQUETTE: This is a really great way for us to enjoy her for three weeks and give her back and make sure she's well-taken care of.

GUTIERREZ: You see the Arquettes don't own Ramona, they rent her from this guy, Scott Martin, founder of the Living Christmas Company.

(on camera): I could go and buy a cut tree for $14. Why spend $100 and give it back to you.

SCOTT MARTIN, FOUNDER, LIVING CHRISTMAS COMPANY: Certainly, it's something you have to value.

GUTIERREZ (voice-over): As an environmentalist and a landscape architect, Martin says what he values is a Christmas without waste.

MARTIN: Love is created by the tree entering the house. But afterwards, you drive by that same house, and you'd see the same tree kicked by the curb. It's just laying there and set aside for trash.

GUTIERREZ: A year ago he bought all these potted trees. He launched a Web site and started to offer trees for rent. His business took off.

MARTIN: I tried to price it such that it's it's comparable to getting a cut tree.

GUTIERREZ: His fleet of delivery trucks run on bio-diesel fuel. Martin says 10 percent of all sales go to local charities, and he expects his profits to grow with the trees.

(on camera): By the time you have a tree that's 6, 7 feet tall, how much money has that living tree produced for you?

MARTIN: We're renting it six, seven times over. So the revenue that is created from that is well over $1,000 a tree.

GUTIERREZ (voice-over): The trees are picked up after Christmas. They go back to the lot where they'll be cared for until next year.

(on camera): You hear people say only in Los Angeles would you rent a Christmas tree.

MARTIN: If you had a tree in your front yard, would you cut it down and bring it in your house for two weeks. You wouldn't.

GUTIERREZ (voice-over): But the Arquettes don't want to make a long term commitment to Ramona either. So they'll have her home for the holidays then send her away come January 1st without the worry of where she'll stay until next year.

Thelma Gutierrez, CNN, Manhattan Beach, California.


HILL: Quite a concept.

Up next: good news for anyone who has been stuck on a plane for hours, on the ground that is. Why the airlines have to pay up for keeping you out of the skies.

Plus, a snowball fight turns ugly when someone pulls a gun, and you may not believe who did it.


HILL: A lot more happening tonight. Randi Kaye is covering some of the other stories for us in a "360 News and Business Bulletin" -- Randi.

KAYE: Hi there Erica. An appeals court in California refusing to dismiss the sex case against film director Roman Polanski. The justices say he must show up in court before they consider the request. But they do acknowledge concerns about possible judicial misconduct in the 32-year-old case. Polanski remains under house arrest in Switzerland where he was arrested in September.

A New York judge has sentenced the 85-year-old son of Brook Astor to up to three years in prison for looting millions from her. Anthony Marshall got the minimum. He's expected to remain free for at least a month while lawyers appeal that ruling.

A Christmas miracle for airline passengers: that's what an advocate calls new federal rules barring airlines from keeping passengers on the tarmac for more than three hours. Those that do not comply can be fined up to $27,000 per passenger. The rules take effect in April.

And caught on tape: an off-duty Washington police officer pulling his gun during a massive snowball fight. According to the chief, the veteran officer got upset after snowballs hit his car on Saturday. The cop is now on desk duty while the case is investigated.

HILL: How about that? Now on desk duty.

KAYE: That's no snowball.

HILL: He's not getting a lot of love for that move. It's true.


HILL: The huge winter storm of course forced a lot to be creative including you Randi to get back here for work today.

KAYE: Only took me three days.

HILL: Great. Is that all?

Check out this Florida bride. Shawna (INAUDIBLE) was supposed to marry her true love Cody Beckless (ph) in Orlando on Sunday. The problem? That lovely storm had Cody stranded in Baltimore. He missed the ceremony they planned, but I think as we all know one should never mess with a bride. Shawna found out that he could get to Tampa, which was only 85 miles away. So she drove and brought the wedding to him at Tampa International Airport.

There you go, wedding party in tow. She greets her husband-to-be after he finally arrived on a midnight flight. Shortly after he landed as you can see here they exchanged vows. May not be the wedding of her dreams but the couple says it really was just about perfect.

KAYE: It may just be more memorable than the one they had planned.

HILL: I think it might be.

KAYE: How romantic.

HILL: It is romantic. And you know, talk about making things work, that's a good foundation for a marriage.

KAYE: There you go and you know Very easy to head out on the honeymoon if there is one because, you know, they're right there at the airport.

HILL: It's true. And it's probably easier to get a flight out of Tampa than Baltimore these days.

Thanks Randi Kaye.

We do also want to mention congratulations in order to 360 writer and producer Jack Gray who hit a big milestone on Twitter, a million followers.

KAYE: Oh my, a million?

HILL: Yes. If you don't follow Jack, you should, because he's hilarious and we love him. Just check him out at And by the way, in case you didn't catch him in the cameo, he's of course also in Tom Foreman upcoming special about the best and worst of 2009. And I think he's going to be very good in it.

Jack, nice work.

That does it for this edition of 360. Thanks for watching.

"LARRY KING" starts right now.