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@THISHOUR WITH BERMAN AND MICHAELA

Controversy and Questions Around Bergdahl Swap; SFPD Arrests Ryan Chamberlain II for Explosives; Was Bergdahl a Deserter?; Marino Joins NFL Concussion Lawsuit; Judge Challenges Attorney to a Fight

Aired June 3, 2014 - 11:00   ET

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


JOHN BERMAN, CNN CO-ANCHOR: Controversy following the president overseas, the decision to trade terror subjects for Bowe Bergdahl.

Amid new questions about how and why Bergdahl was captured, the president now makes his case.

MICHAELA PEREIRA, CNN CO-ANCHOR: The battle between former players and the NFL might never be the same after this. A new high-profile plaintiff is now suing over brain injuries.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: If you want to fight, let's go out back and I'll just (bleep).

(END VIDEO CLIP)

BERMAN: Right. And after that, it was on. The public defender versus the judge, mano-a-mano. Two will enter; one will leave. How on Earth does this happen?

Hello, everyone. I'm John Berman.

PEREIRA: And I'm Michaela Pereira. It's 11:00 a.m. in the East, 8:00 a.m. out West, those stories and much more, right now, @THISHOUR.

President Obama, defending his decision to secure Sergeant Bowe Bergdahl's release, and he's making his case from the world stage. The president is in Warsaw, Poland right now, the start of his three-day trip to Europe.

BERMAN: A couple hours ago, during a new conference with the Polish president, President Obama said what matters are not the questions about how Bowe Bergdahl ended up in Taliban captivity.

What matters, says the president, is that Bergdahl deserved to be free.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: But let me make a very simple point here, and that is, regardless of the circumstances, whatever those circumstances may turn out to be, we still get an American soldier back if he's held in captivity. Period. Full stop. We don't condition that.

And that's what every mom and dad who sees a son or daughter sent over into war theater should expect from the United States of America.

(END VIDEO CLIP)

BERMAN: Full stop, so says the president, who says he did the right thing. He said he gave everything Congress they needed, given circumstances, and had he given them more, it would have put Bowe Bergdahl's life in jeopardy.

PEREIRA: President Obama also says he got assurance from the Qatari government that those five, freed Taliban prisoners would be under strict surveillance, but many members of Congress, they're not buying that, including Senator John McCain.

In fact, here's what he said earlier this morning right here on CNN.

(BEGIN VIDEO CLIP)

SENATOR JOHN MCCAIN (R), ARIZONA: The fact that within a short period of time, if the past proves true, they'll be back in the battlefield putting the lives of Americans in danger in the future.

And that's what most of us find incomprehensible is that the Taliban should be allowed to pick the "dream team," as my friend Lindsey Graham called it, and send them to Qatar, and obviously they'll be back in the fight.

Thirty percent of those who have already been released from Guantanamo have reentered the fight, and this is the top. These are the people that have the blood of thousands on their hands, at least in one case, and so you have to understand what was done in exchange for the release of Sergeant Bergdahl.

(END VIDEO CLIP)

BERMAN: Lots to talk about here.

We're joined by political commentators Ana Navarro and Marc Lamont Hill.

Marc, I want to start with you. You heard John McCain refer to the five Taliban prisoners as the "dream team."

My friend Ron Fournier who writes for the "National Journal" says if one guys goes onto kill an American or kill a U.S. ally in the coming months or years, there will be blood on the president's hands.

Marc, what do you say to that?

MARC LAMONT HILL, CNN POLITICAL COMMENTATOR: That's a bit hyperbolic and unnecessarily inflammatory.

As far as being the "dream team," there are five of them in here. Two are high-ranking leaders, three not as much, so I don't know if I would use the word dream team.

I do think there's legitimate concern about national security and about international security with regard to their release, post-one- year detainment in Qatar. I think we have to consider that.

But the conversation about the president not interacting with Congress is simply unfair and untrue. This was not an engagement with terrorists. This was an engagement with a third party, Qatar, in a situation where a war in winding down and prisoners of war are typically released.

And whether or not this soldier walked away from battle, whether or not he was a good soldier, is irrelevant. He's a human being, and he's an American soldier, and it's our responsibility to bring him back.

And, lastly, the importance of doing it right now and not waiting 30 days, as some people suggest that he should, although there are debates about constitutionality of that, is that, one, Hamid Karzai may have intervened and undermined the negotiations because he's very skeptical of the U.S. negotiating directly or through the Taliban.

There's also the fact that the more radical wing of the Taliban was very worried about this deal and they may have stopped the deal.

To bring this young man home, safe and in one piece, this had to happen now.

PEREIRA: Ana, you have been very quiet and very patient. I know you have got things to say. Go.

ANA NAVARRO, : First of all, let's talk about these five guys, and let's remember that, not too long ago, Leon Panetta and James Clapper both argued against a swap involving those five.

James Clapper himself was in a hearing, talking about how dangerous they are.

Thirty percent of the Gitmo prisoners that have released have gone back into the battlefield.

So I think this raises an important ethical question. Does it matter what circumstances are surrounding his disappearance as to what the United States' duty is to a soldier left behind?

But regardless of what the answer to that is, and I think it's different for different people, this has turned into a p.r. nightmare because certainly you have Susan Rice, out of all people, back on the Sunday shows talking about him having served honorably and with distinction.

And the next thing you have is members of his own troop, members of -- people like parents of people that died searching for him. Six people allegedly die in search of Sergeant Bergdahl.

So should it affect the way we think about it? That's a question everybody has to answer. Does it affect the narrative, the p.r.? Absolutely.

So I think it's become politically very difficult for President Obama to justify trading five, real bad guys, negotiating with terrorists for a guy who did not apparently serve as honorably and as with as much distinction as Ambassador Rice claimed.

It's becoming very complicated for him.

BERMAN: But, Ana, let's take that to its full extension there. Are you then suggesting as we sit here on Tuesday that you would prefer that Bowe Bergdahl still be in Taliban captivity and these five men still be in Guantanamo?

HILL: Exactly.

NAVARRO: No. I'm not suggesting that. I am -- well, by the way, yes, I would prefer for these five men to still be in Guantanamo. There's no doubt about that.

HILL: With Bergdahl --

NAVARRO: I am not suggesting I would prefer for him to be in captivity. But that's -- well, how do you know, Marc? Was this the best deal we could cut?

HILL: Because --

NAVARRO: We have to give all five of these really bad, hardened, battle-tested Taliban?

BERMAN: Let's let Marc talk.

HILL: What we know is if we hadn't released five detainees, they wouldn't have just given Bergdahl up. It's not like as if Obama could have just called the Taliban and say, hey, can you do me a solid, bro? Send him back?

Obviously, they had to negotiate this. This deal has been in the making for years. The debates were over what prisoners would be released, what the terms would be, what the security would look like, and the truth is the president had no choice but to do this deal.

This wasn't the first deal that was on the table. This was the best deal that was on the table.

NAVARRO: And, by the way, nobody in Congress knows what those conditions of security are going to be in Qatar.

Even yesterday the --

HILL: That's a fair point.

NAVARRO: -- Democrat who chairs the intelligence committee, Senator Feinstein, said you should have come to Congress with this.

So we don't know what the security terms are. We do know that these guys are five, battle-tested, hardened of the worst of the Taliban, and the narrative doesn't get pretty when you have somebody with circumstances of Bergdahl. It just doesn't.

HILL: But the --

PEREIRA: Ana Navarro, Marc Lamont Hill, we're going to leave it there with you. Thank you so much for bringing your passion, both of you. We have more to talk about obviously on the Bergdahl story.

One of the questions people are wondering is, will Bowe Bergdahl face charges? We're going to look into the legal aspect of the case, coming up.

Right now, though, here's some more stories that we're following @THISHOUR.

We're going to take you to San Francisco where police are holding a news conference right now on the arrest of a man accused of having explosives in his apartment.

Forty-two-year-old Ryan Chamberlain II caught near the Golden Gate Bridge. He was arrested there. Officers had been searching for him since the weekend.

We're keeping an eye on this story to see if there's any developments that are made out of California. We'll bring you those as they come to us.

BERMAN: It's primary day for a big chunk of the country right now. Voters in eight states head to the polls in critical contests from coast to coast. In Mississippi, it is a high-profile tea party versus mainstream Republican Senate showdown.

This may be the tea party's last best shot at ousting an incumbent in a race that has really turned out to be one of the nastiest of the campaign season.

PEREIRA: It's called a game changer in the concussion case against the NFL. Dan Marino, the Hall of Famer and former NFL analyst, is suing the league over brain injuries.

He claims the league knew there was a link between concussions and long-term health problems. A similar class action suit involves thousands of former players.

Coming up in a few minutes, right here @THISHOUR, we're going to talk about how Marino's involvement could change things, could be a game changer.

BERMAN: Ahead for us, @THISHOUR, the president says he saw an opportunity to free an American soldier, and he went for it.

But is that against the law? And what about Bowe Bergdahl? Could he face charges? Serious legal questions from every angle here, we'll talk about it next.

(COMMERCIAL BREAK)

PEREIRA: The president is defending his decision to secure the freedom of Sergeant Bowe Bergdahl with a Taliban prison swap.

His family obviously is overjoyed, along with plenty of other people around the country.

BERMAN: It's still not clear exactly how Bergdahl ended up leaving his base in Afghanistan back in 2009. We have to wait to hear from Bergdahl to get his side of the story.

However, many of those who serve with him call him a deserter and say that his actions ended up costing the lives of others.

Here's what one of his platoon members said earlier this morning.

(BEGIN VIDEO CLIP)

CHRIS CUOMO, CNN ANCHOR, "NEW DAY": Let me ask you, Sergeant, does it matter to you the circumstances under which he came to be captured in determining whether or not the U.S. should have done everything it could to get him back?

MATTHEW VIERKANT, PLATOON MEMBER WITH BOWE BERGDAHL: Of course it matters. It matters to me. It matters to everybody in my platoon, company.

It matters to every service member that was on the ground in Afghanistan, conducting missions, putting themselves in harm's way for somebody who willingly walked off to do whatever. Either way, he put people at risk.

(END VIDEO CLIP)

PEREIRA: So there's a lot of questions surrounding this story, obviously, moral, ethical questions.

We want to explore the legal angle right now. We're joined by Anita Gorecki-Robbins. She's a former Army senior defense counsel and former federal prosecutor.

Thanks so much for joining us this morning, first of all.

ANITA GORECKI-ROBBINS, FORMER FEDERAL PROSECUTOR: Good morning.

PEREIRA: I want to get your take on what you think potentially could happen to this sergeant. What kind of charges could he potentially face?

GORECKI-ROBBINS: Obviously, the obvious one, the first one that comes to mind is AWOL. And this is kind of interesting, because if you've only been AWOL three days or less, there's a certain type of punishment. If you have been AWOL 30 days or more, there's obviously more punishment. So obviously that, potentially, could depend on the facts. How long was he gone and how many days afterward was he picked up by the Taliban. That makes a difference in punishment. The difference between 30 days or six months in prison. Likewise, he could be facing possible desertion charges. That faces a max penalty of five years in prison and a dishonorable discharge. And then speaking to the previous interview that I just listened to, one of his unit members, about putting others in harm's way.

So careless disregard. I could see potential federal prosecutors, or trial councils in the military, a possibility of negligent homicide, possibly. He created a situation where maybe he put others at risk that were trying to save him. I think these are all possibilities. Whether they would come to fruition actually, like negligent homicide which carries five years, obviously you could stack them up. Whether that would be politically the right thing to do is something obviously department of defense is going to have to grapple with.

BERMAN HOST: You call them possibilities, Anita. The chairman of the joint chiefs says he will not look away from misconduct here. But the military has a huge amount of leeway here, don't they?

GORECKI-ROBBINS: Just like any district attorney. They have prosecutorial discretion. There will be a staff judge advocate at his unit. Obviously they're going to have to run this up the chain of command, so absolutely. They don't have to charge him with anything. He's on the books. Even if they let him go, characterization of discharge was his service honorable, general, under honorable conditions and there's administrative ways to get him out. So absolutely, this is completely and solely within the army's hands of what do they want to do? Obviously he was in captivity.

PEREIRA: That's the other point to bring up. No matter what happened here and how it looks or what side of the fence or argument you're on, he's spent five years as a hostage for the Taliban. Are they going to take that into account if and when they sentence him?

GORECKI-ROBBINS: I would think even if you did, this would seem obviously like time served. Even when we have someone in pretrial confinement, and the confinement has been particularly difficult, you can give two for one credit or three for one credit. Hard to imagine, obviously, captivity that he would receive even if they decided to go forward with something, that he would not receive time served and then really the question becomes what characterization are we giving him?

Of course I don't think all of the details have come out. There's been some investigations and apparently there is going to be another investigation which, obviously, and all of those facts and details as I discuss like, how many days was he gone, and who picked him up, how many days after, that's all going to come to bear. If truly others were killed while on a mission trying to get him back.

BERMAN: Anita, thank you. We appreciate you being with us. A lot of discussion here. Legally speaking ,this is being depicted as hero versus deserter. But as she points out there are a million miles in between there where military justice can fall. They do not have to call him a hero. They don't have to call him a deserter. A lot of things they can do to try and make this right after he recovers in the hospital and beyond.

PEREIRA: And as you said early on, we have to get his side of the story.

BERMAN: We do but look, there are a lot of people here making the case that something happened here. At this point I do think it's fair to say we don't know everything that happened but there are a lot of legitimate questions.

PEREIRA: Absolutely. Fair enough.

Ahead @THISHOUR, we'll talk about the bride. You were probably sent this on Facebook. Her wedding dress has been lighting up the Internet because her baby, her infant child, was part of her wedding dress train.

BERMAN: Plus, his name is enshrined in the NFL Hall of Fame. He threw 10,000 touchdown passes. Could Dan Marino now enter into a lawsuit over concussions and could that be a game changer?

(COMMERCIAL BREAK)

BERMAN: All right. This just in. Dan Marino was very, very good at football. He changed a lot of games on the field. Now he could be changing things in court. The NFL Hall of Famer is now part of a lawsuit against the NFL over concussions, saying he has the symptoms of brain injury.

PEREIRA: Thousands of former players have claimed all those hard hits from their playing days left them with severe health issues. And that the league knew for years there was a link between concussions and long-term health problems but didn't do anything.

Want to bring in our legal analyst Paul Callan who is here on set with us. Really a pleasure. I believe it's the first time you've been with us @THISHOUR, very exciting. So obviously, I can almost answer my own question. What kind of affect could this have on the case and such cases by bringing a big name into it? The fact that we're discussing it here again is breaking news. We're talking about one of the biggest players in the game adding his name to the case.

PAUL CALLAN, CNN LEGAL ANALYST: You hit it right on the head. He's a beloved player and he's the first really big superstar now to enter this case. People were saying at first when these players brought the case against the NFL that it was nonsense and it wasn't going to go anywhere. Now you have one of the NFL's true superstars saying I was injured and I deserve to be compensated. I think it adds a lot of credibility to the lawsuit.

BERMAN: Well look, it already did go somewhere. There was a $765 million settlement between the league and the players that a judge threw out, really, because it wasn't generous enough to the players. So what does this then do to it now? Because me, I'm not a lawyer, but I look at this and say, this just goes to show that this number will be a heck of a lot higher now. CALLAN: I think you're right about that. A lot of lawyers are scratching their heads about this. When I first saw the lawsuit, I said he's got a different lawyer. Maybe they have a different theory. But he hired the same lawyer that the other players had. He's filed in the same federal court that the other suit is pending in. It's essentially the same. So why would he do it? Well the initial settlement was $760 million. The judge looked at it and said do you know if only 10 percent of the players who have serious injuries collected what they're allowed to collect, there would be no money left for anyone else. The signal has been sent that's a totally inadequate amount of money. So I think now the plaintiffs are saying we'll bring in Marino, 14 other players and show the NFL they better put serious money on the table if they want this to go away.

PEREIRA: We reached out -- CNN reached out to the NFL and we haven't received comment. I'm curious, what do you see the best course of action for them to do? I'm think about how this -- we've been talking about what potential game changer this is. I'm thinking beyond legal ramifications, what this will do to the league.

CALLAN: I think it goes even beyond that to what it does to sports.

PEREIRA: That's a good point.

CALLAN: I think this is going to change the way sports are played in America. Obviously football in particular is a sport of great violence and there's no way you can protect these players from all injuries. It's the nature of the sport. It's a tough, tough sport. If you have to play it in such a way that the players don't get injured, I think it's going to be a different game. It's going to be real interesting.

BERMAN: We'll talk more about this in the coming days and weeks. On the subject of tough, tough sport and full contact, Paul Callan, you may be able to relate to this. This is what happened.

PEREIRA: Or not, he's a gentleman.

BERMAN: This happened when things got heated in a courtroom between a Florida attorney and the judge.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Sit down. I'll take care of it. I don't need your help. Sit down.

UNIDENTIFIED MALE: I'm the public defender. I have a right to be here and stand and represent my client.

UNIDENTIFIED MALE: I said sit down. If you want to fight, let's go out back and I'll just [ bleep ].

UNIDENTIFIED MALE: Let's go.

(END VIDEO CLIP) BERMAN: All right. In case you missed it, it was hard to miss though. The judge just challenged the lawyer to a fight, Paul. They go out into the hallway and they throw punches. Deputies had to break it up. I don't want to take sides here but I'm going to take sides. Is there any possible way that a judge should ever do this? The judge can declare anyone he wants to or she wants in contempt. A judge shouldn't pick a fight with a lawyer.

CALLAN: It's a bad idea. And, Michaela, I want you to know that you said I was a gentleman. I appreciate that. But I had a Manhattan judge order a court officer to stand behind me with handcuffs as he said I should get off my soap box when trying to get the case dismissed. By the way, the case was dismissed ultimately.

This judge is way out of line. I think he's going to be sanctioned, probably, by judicial authorities under the code of judicial conduct in Florida. He took it a little too far. The lawyer on the other hand, we didn't really hear the whole thing. But he is kind of a wisenheimer, the lawyer. He's saying, yes, all right. Do what you want, judge. So if you look at his words, he didn't say anything bad. But the judge got mad.

BERMAN: You're supposed to be above that as judge. You are supposed to be above it all.

CALLAN: We call them judicial temperament. He didn't have any. Maybe a talk radio show he would be more suitable to.

PEREIRA: Apparently charges won't be filed, but the public defender's office says the incident will be reported to the Florida bar. We will be watching this one. You are a gentleman. I don't care what they say.

CALLAN: Thank you, Michaela.

BERMAN: We'll step out back during the break though, Paul.

PEREIRA: Ahead @THISHOUR, police say they have never seen anything like this. Two 12-year-old girls accused of repeatedly stabbing their friend in the woods leaving her for dead. Their motive, to please a fictional horror character. There are so many disturbing angles to this. We'll talk to a criminologist next.

(COMMERCIAL BREAK)