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@THISHOUR WITH BERMAN AND MICHAELA

Obama Didn't Notify Congress Over Bergdahl Swap; A Look at Bowe Bergdahl's Father; Russia Dangerously Flies By U.S. Troops; Noise Could be Clue to MH370.

Aired June 4, 2014 - 11:30   ET

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


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REP. PETER KING, (R), NEW YORK: I sort of have a mixed position on this. I do not think it was a good deal he made. I tried to find a way in the beginning to support it but I just can't in view of all of the facts that have come out. I disagree with a number of Republicans in that I believe president as commander in chief does not have to consult with Congress on this because it directly affects an American soldier. Having said that, he should have consulted Congress and he did not.

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JOHN BERMAN, CNN ANCHOR: That was Republican Congressman Peter King, from the Homeland Security Committee, one of several lawmakers from both parties who were angry at different levels that President Obama did not tell them ahead of time about the exchange of five Taliban prisoners for Sergeant Bowe Bergdahl. The law says really that the president had to. Congress gets 30 days notice before anyone is transferred from Guantanamo Bay.

MICHAELA PEREIRA, CNN ANCHOR: I want to bring in Jonathan Turley, a law professor at George Washington University.

Good to see you, Professor.

JONATHAN TURLEY, LAW PROFESSOR, GEORGE WASHINGTON UNIVERSITY: Thank you.

PEREIRA: Talk to us about this. We just heard Peter King say, considering this directly affected an American soldier, can it be interpreted the president broke the law or not?

TURLEY: Yes. He did break the law. There's two different questions here. One is, did he violate the federal law? The answer to that is most obviously yes. The federal law required him to give notice and he chose not to. The second question is whether that law is constitutional. And the answer to that is more difficult. This is just a notice requirement. There are thousands of such notice requirements. And the problem with the president's argument is there's no limiting principle that he could argue that all national security laws could fall into the same unilateral power. But there is an argument to make. The problem is how he did it. The president promised he would not use signing statements when he ran for office. He used one here. Signed the law. And then said, but I'm not really necessarily going to comply with the law. That's a serious problem in a nation of shared powers.

BERMAN: Let's leave signing statement aside for a moment because it's not law. But you did hit on what is really the issue here. The administration seems to be taking a stance somewhere in the middle of the law and the Constitution here. The action was justified by saying that if the law inhibited the president's responsibility to protect soldiers, it would be unconstitutional therefore they interpret the law not to prohibit the president from doing that. Does that make sense to you?

TURLEY: I can't get my head around that. Not giving notice to Congress complies with a law requiring notice being given to Congress. Down that path lies insanity. It's more simple to say that we just simply didn't comply with the law. And the administration has been all over the board on this.

The question as to whether this really did restrain his power is a good one and interesting one. This is a requirement of notice. These negotiations have been going on for years. In fact, the White House had talked to members years ago about this type of thing. This type of exchange and received a lot of pushback on it including pushback from within their administration. So the burden is really on the president to show that he could not simply notify Congress.

But at the end of the day, the greatest problem that we're facing is not this one violation but rather there is a myriad of these violations. The president, as you know, went to Congress and said he was prepared to go it alone. There's no litany of federal laws that he's said he will not enforce or he's significantly changed through executive orders, and that's created a real problem within our system. This emerging, almost uber presidency, where he acts alone and Congress becomes increasingly irrelevant.

BERMAN: As you said in terms of Guantanamo, at a minimum, this is something that president Bush did as well at length over the course of his administration.

(CROSSTALK)

PEREIRA: Go ahead. Go ahead.

TURLEY: No. The funny thing is I agree with the president on Gitmo. I think it should be closed. But I have serious reservations about the means he's used to achieve many of his policies.

PEREIRA: Jonathan Turley, thank you for joining us from --

TURLEY: Thank you.

PEREIRA: -- George Washington University. We appreciate it.

Another angle to this story, Sergeant Bergdahl's father grew a beard very similar to the ones that his captors have. He learned his language, posted videos begging for his son's release. We want to talk about this. What's behind the actions of this father?

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FATHER OF BOWE BERGDAHL: I'm the father of captured U.S. Soldier Bowe Robert Bergdahl.

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PEREIRA: That was Bob Bergdahl, father of Sergeant Bowe Bergdahl, in a video he made about three years ago speaking about his son's capture. This week the world has come to see a lot more of that soldier's dad.

BERMAN: It's leading to a lot of discussion about the man and what motivates him. We saw him standing next to the president in the Rose Garden when the president announced the release of Bowe Bergdahl. He's gone to great ends to learn about what goes on in Afghanistan and Pakistan. He learned Pashtu. He says this is all intentional. He immersed himself in the culture to understand the minds of his son's captors.

PEREIRA: Others question whether he had empathy perhaps for the enemy. Who exactly is Bob Bergdahl?

We want to bring back Dan O'Shea, a former Navy SEAL and expert in hostage recovery.

It's really interesting to see this. I know that everybody reacts a little differently. Watching this father talk about his intention about transforming and understanding where his son was captive and learning about his captors, does this make sense to you? Have you seen this kind of transformation before?

DAN O'SHEA, FORMER NAVY SEAL: Well, yes, of course. A parent/father would do anything to try to do anything to understand what their son and daughter is going through if held in this situation. We had a case in Iraq where the missing soldier was the face of the POW campaign in Iraq. His father total president Bush, I will save my beard when you bring my son back. He grew a beard as long as Bergdahl's father did. This is not the first time that a parent has gone to great lengths to try to identify with the conditions and understanding of what their son or daughter or in this case Bergdahl was going through.

Berman: I think a lot of people grow beards for a large variety of reasons. There's a tweet from Bob Bergdahl that is raising a lot of eyebrows. This was apparently sent to a Taliban spokesman. The tweet reads, "I'm still working to free all Guantanamo prisoners. God will repay for death of every Afghan child." This tweet was dated May 28th. It's been removed since. The family declined to comment here. What do you make of this tweet? Let me ask you that flat-out. O'SHEA: Well, again, the family is not responding to inquiries about this and only Mr. Bergdahl can answer questions about that tweet. But it sends a message. It obviously causes concern because it looks like the father was as much a captive of the Stockholm syndrome as his son might have been who had to immerse himself in the Afghan and Pashtu culture.

PEREIRA: Maybe they were. We know what a tremendous strain that puts on families. We can only imagine the strain it puts on families. I'm curious about that. Give us an idea about what that return home is going to be like for Bergdahl. We know his dad is building or has already built a base camp near the family's home in the woods hoping that maybe his son can use it as he transitions into regular life. Give us an idea of what that experience will be like for him.

O'SHEA: Well, again, I've been through the military's version of a POW experience through school. A very short experience, nonetheless certainly, nothing something I want to repeat again. It was eight to 10 days. And so I can appreciate the transition that not only Sergeant Bergdahl but the family has been going through but I think that's an effort to create a protective bubble. Bergdahl is coming from a place like living on the far side of the moon. When he comes home, it's not just a conquering returning POW war hero coming home, he has a lot of questions to answer. This retreat in the woods may be the only thing keeping him from a huge weight on his shoulder when he comes back because he has a lot of questions still to be answered. I think this is an effort for the father to create a protective environment for when his son comes home to Idaho.

PEREIRA: All right. I want to say thank you to Dan O'Shea for sticking with us through a couple segments today. We appreciate your insight.

BERMAN: Coming up for us, this looked like a scene straight out of a movie. A Russian jet flies up to a U.S. military plane putting the crew's life in jeopardy. We'll tell you why this happened. Was this an intentional threat on U.S. troops? That's next.

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PEREIRA: Straight out of a movie is how one U.S. official described a Russian fighter jet passing dangerously close to a U.S. military plane.

BERMAN: Doesn't sound good. It happened in April in water between Russia and Japan endangering the U.S. crew. This is not the first time a Russian jet buzzed U.S. forces.

Joining us to talk about this, our chief national correspondent, Jim Sciutto. Jim, how serious was this?

JIM SCIUTTO, CNN CHIEF NATIONAL CORRESPONDENT: Short answer is extremely serious. U.S. official says to me that it is the most dangerous close pass, as they call these encounters between planes at height, in decades between U.S. and Russian warplanes. We're going back to Soviet times here. So dangerous that the crew chose to abort its mission. This U.S. official says the close pass put U.S. lives in danger.

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SCIUTTO (voice-over): The close pass, one of the worst in decades, a U.S. official tells CNN, took place April 23rd in international waters off Russia's eastern coast. A U.S. Air Force RC135U surveillance aircraft on a routine mission was intercepted by a single Russian SU27 flanker jet. The SU27 crossed the nose of the U.S. aircraft within approximately 100 feet, showing its belly to reveal it was armed with missiles, a maneuver straight out of a movie, said the official, so close that the U.S. jet was caught in the jet wash of the Russian fighter. The U.S. official said the fly-by but the lives of the U.S. crew in jeopardy, at which point the crew aborted its mission.

The incident came nine days after another Russian jet buzzed the destroyer "USS DONALD COOK" in the Black Sea. That jet came within 100 yards of the ship, just 500 feet above the sea.

The U.S. raised the near miss at the highest levels. Chairman of the Joint Chiefs, General Martin Dempsey, communicating with the Russian chief of defense. Since then, CNN has been told such close passes have not happened again.

Today, President Obama met with the new Ukrainian president-elect, Petro Poroshenko. Both pledging to find a peaceful end to the conflict with Russia.

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SCIUTTO: For now, Ukraine is still locked in a bloody battle with pro-Russian separatist. This YouTube video capturing a fiery explosion at a militant base, leaving several fighters and civilians dead. Authorities in Kiev blamed an explosion at a weapons cache. CNN reporters on the scene found an attack by government military jets.

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SCIUTTO: This close pass took place at the very height of the Ukraine crisis at a time when you had tens of thousands of Russian troop on the border with Ukraine. Severe disagreements of course between the U.S. and Russia over Russian actions in Ukraine, including the annexation of Crimea.

I asked U.S. officials if they've seen a marked uptick in close passes like this since the start of the Ukraine crisis, and they say not in that time period but, yes, in the last two years, they have seen more of these challenges, in effect, the Russian military challenging face- to-face the U.S. military up in the air.

PEREIRA: Provocation to be sure.

Jim Sciutto, thank you for that. We've been watching the situation unfold today.

BERMAN: Sounds like a dangerous situation. On the subject of dangerous situations between these two nations, tensions between the U.S. and the then-Soviet Union came to a head in the '60s during the Cold War. Remember that phrase. There was Vietnam, the Cuban Missile Crisis. And the world was on the brink nearly every day.

PEREIRA: That's the focus of the latest installment of CNN's original series "THE SIXTIES."

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JOHN F. KENNEDY, FORMER PRESIDENT OF THE UNITED STATES: An extreme national effort will be needed to move this country safety through the 1960s.

UNIDENTIFIED ANCHOR: Seven minutes past 1:00 this morning, a man went around the world. The spaceship was built in Russia.

TIMOTHY NAFTALI, HISTORIAN: If you could put a man into space, you could put nuclear warheads into space.

UNIDENTIFIED MALE: The temper of the world is crisis.

ROBERT DALLEK, PRESIDENTIAL HISTORIAN: There was palpable fear in the United States and in the Soviet Union that the two sides were going to get into a nuclear war.

KENNEDY: I do not shrink from this responsibility.

UNIDENTIFIED MALE: 25 Russian ships are en route to Cuba on a collision course.

UNIDENTIFIED MALE: the next 24 hours should be decisive.

DALLEK: Should we bomb, should we invite, back and forth.

UNIDENTIFIED MALE: I think, unless something is done, humanity will destroy itself.

NAFTALI: Who is going to blink first?

ANNOUNCER: "THE SIXTIES" Thursday night at 9:00 on CNN.

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BERMAN: The new CNN series, " THE SIXTIES," airs Thursday night at 9:00. Do not miss it. This is a terrific, terrific episode.

PEREIRA: Still ahead @THISHOUR, a mysterious sound from under water -- almost hard to make out, but could that be the key to missing Flight 370?

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PEREIRA: Could an underwater sound be related to the final moments of Flight 370? An Australian university has released audio recordings picked up by underwater listening devices.

BERMAN: Researchers say it is a long shot but it's possible this sound may have been the impact of the plane on the water or an implosion of parts of the craft as it sank and fell in upon itself. We want you to listen, judge for yourself. It is very subtle.

So the researchers think that came from the area on this map, which is thousands of miles northwest, I mean, thousands of miles northwest from the current search area in the Southern Indian Ocean. But they say it could be just as likely it was a natural event, an underwater earthquake, a landslide, not related to the plane. What was it?

Joining us now, CNN safety analyst, David Soucie, to tell us exclusively.

David, you've investigated accidents before, crashes like this, maybe you heard something different.

DAVID SOUCIE, CNN SAFETY ANALYST: You know what I heard was a low frequency vibration. There's a pulse going on, and this pulse, you couldn't hear with the human ear. You would feel it perhaps but you wouldn't be able to hear it with the human ear. They'd sped it up so you can interpret it by the human ear. So that's not really what it sounds like. Remember, the lower frequencies in the ocean travel much, much further than higher frequencies. That's what you'll here, that low frequency pulse. It won't give you much characteristics to tell you specifically what it was.

PEREIRA: What's interesting is we showed the map a second ago, the area of interest where the sound came from is a very large area. It's also very far from the arc. So the arc is provided by the information, provided by Inmarsat. So if the Inmarsat data is -- let's say this is right and this sound is from the plane, that means the Inmarsat data would be wrong.

SOUCIE: Yeah, it does, we all know Inmarsat data is under scrutiny from outside sources. But as crucial as that is, it doesn't discount the fact those arcs are the best information they have. One, it's not very specific, so it's hard to say it is the aircraft. Could just as easily have been a small earthquake or other movement in the ocean. So it's not really conclusive. So to try to, you know, dissuade the search that's ongoing now, I don't think that's going to happen. The second reason I have, because these low frequency vibrations can travel for thousands and thousands of miles, I'm not sure how they even figured out where it came from, to be honest with you. It could have just as easily been refracted off another object under the ocean. There's a lot of variables here. I just don't see a lot of credibility in it. I think they're even saying it's a 10 percent chance --

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BERMAN: What would it take for them to check this out at this point? Search more in the area they're searching now, then in a year, come back to this and say, there was this would be thing, maybe we should follow up on that? SOUCIE: I think it would take -- at this point with what they have, I think it would take an exhaustive search of the existing area. Then maybe start grasping at further straws further away. But I still put all the faith down in the lower arc.

PEREIRA: David Soucie, always a pleasure. We'll be watching to see if this turns into something or not. 10 percent, as you said, is a very low, low piece of fact they can follow.

BERMAN: We'll be listening in this case.

PEREIRA: More importantly, we'll be listening.

I want to share something, also from Australia, on a much, much lighter note, Lego. Legoland craze created quite a black market for those bricks.

BERMAN: So Australian police are on the lookout for thieves who stole $15,000 worth of Legos from a huge toy store north of Melbourne. This was a high-tech operation. Removed apparently the store's glass. They raced off in a van. Apparently they were targeting the Legos. Police say the professionalism of this operation suggests there could be a syndicate specifically targeting Lego. A Lego crime syndicate in Australia. You thought we had problems.

PEREIRA: That's it for us @THISHOUR. I'm Michaela Pereira.

BERMAN: And I'm John Berman.

"LEGAL VIEW" with Ashleigh Banfield starts right now.