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Smerconish

Top Al Qaeda Leaders Gathered in Yemen; Eight Million Signed Up for Obamacare; Eight Millions Sign Up Under Obamacare; Puig's Escape from Cuba; Duke Rape Case Revisited; White Supremacist Faces Murder Charges

Aired April 19, 2014 - 09:00   ET

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

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MICHAEL SMERCONISH, CNN ANCHOR: Good morning. I'm Michael Smerconish. We have a jam packed program for you today including what is being called the largest and most dangerous gathering of Al Qaeda in years.

How did this get past the United States or did it?

And millions sign up for Obamacare. In fact, one million more than the White House predicted. So do Democrats hop on the Affordable Care Act train or jump off the tracks altogether?

Shannon (INAUDIBLE) brings us her business expertise from Bloomberg News to discuss and Larry Sabato from the Center for Politics at UVA is here to tell us if Republicans can still run against Obamacare in the mid terms or if they were just dealt a major political blow.

Plus, the harrowing story of (INAUDIBLE). Before the millions, there were smugglers, hostages and even murder.

And more universities coming under fire for how they handle sexual assaults on campus. The most notorious case, Duke University. Author William Cohen says the blue devil is in the details.

And why some grainy black and white surveillance video should be raising some eyebrows nationwide making you think it's time to change the pool water. Let's get started.

We start off with this breaking news this morning. We have just learned that a few hours ago a suspected U.S. drone strike in southern Yemen killed 15 people, 12 of them Al Qaeda terrorist suspects. The jihadists were traveling in a vehicle and the three civilians were in a passing car. Now, this news comes just days after a chilling video of Al Qaeda fighters meeting in the same region region with their leader Nasir Wahishi surfaced on the internet.

This supposedly recent video out of Yemen shows a gathering of Al Qaeda operatives including the guy they call the crown prince, the number two in command of the terror organization. This recent video may or may not have caught U.S. intelligence off guard, but it did open up this line of questioning. If the U.S. knew about the meeting of 100 or so Al Qaeda operatives, could they or would they have attacked with drones and was today's attack related to that video?

Joining me now is CNN law enforcement analyst and former FBI assistant director Tom Fuentes and also Philip Mudd, a former CIA counter terrorism official and now senior fellow at the New America Foundation.

OK. Tom, so first, CNN breaks this video which shows 100 or so Al Qaeda leaders in Yemen. Today brings the breaking news of a drone strike in Yemen. Is it a coincidence?

TOM FUENTES, CNN LAW ENFORCEMENT ANALYST: Probably not. Good morning, Michael and Phil.

SMERCONISH: Good morning.

FUENTES: You know, there is a possibility that the reason that there was no attack during that first large gathering of 100 soldiers was it could be that there were intelligence agents infiltrated into that group who they didn't want to have killed with all the others. I mean that's a possibility. Saudi intelligence, in particular, has penetrated Al Qaeda in Yemen in the past.

You know, that is a possible factor that they gathered intelligence and then used that intelligence in the recent attack to kill the 12 terrorists that they just attacked with the drone.

SMERCONISH: Philip Mudd, we are aware of that video apparently because Al Qaeda wanted us to see that video. Read the tea leaves for me. Why would that be the case?

PHILIP MUDD, NEW AMERICA FOUNDATION, SENIOR FELLOW: I think you are looking at the evolution of an Al Qaeda organization that's under a lot of pressure in Pakistan. They've turned to groups in places like Mali, Somali, Yemen to carry the baton, if you will. Because there are so many Al Qaeda guys killed in Pakistan. Remember, Osama Bin Laden.

So what they want to do is to say the movement is still alive and kicking even if people in Pakistan are dying every day in this war.

SMERCONISH: Phil, what do you make of the reference to the need to quote, unquote, "eliminate the cross."

MUDD: This is a really critical reference and I think it's hard to understand. So let me put it in context just for a second. Most of the Al Qaeda movements around the world struggle to get on the global stage. They have fighters whoa re interested in local targets, local governments, local military forces. You need visionary leadership like Wahishi in Yemen to raise the horizon of the local fighters and say the real enemy is not here. It is the foreign enemy. It is New York, it's Washington. And one way you do that is to say go after the cross.

SMERCONISH: Well, to your point about New York and Washington being on their hit list, last night, I walked into Central Park because I was curious in the after math of that video coming to light. What is the level of concern among Americans about terror in 2014? Give a listen to some of what I found.

(BEGIN VIDEOTAPE)

SMERCONISH (on camera): On a day to day basis, how often does terrorism enter your mind?

UNIDENTIFIED MALE: I mean, it is always in the back of your mind. You never know what could happen.

UNIDENTIFIED MALE: Growing up in Texas, it was never a problem. But as soon as I came up here, it is kind of a different vibe up here.

UNIDENTIFIED MALE: From time to time, it will cross my mind because of things in the past or things that you see going on in other places.

SMERCONISH: To what extent on a day to day basis do you worry?

UNIDENTIFIED MALE: Not a whole lot. I'm not sure that I can really worry too much over something I don't have much control of.

UNIDENTIFIED MALE: When we left Heathrow, I thought about terror. I thought about - it's an awful thing to say, I though about the people around me.

UNIDENTIFIED FEMALE: I know our borders are not as secure as they could be in general. And so, that, I think, adds a lot to my heightened awareness.

UNIDENTIFIED FEMALE: I don't worry. No, I can't let fear enter my heart. I don't want it to be part of my life.

(END VIDEOTAPE)

SMERCONISH: Tom Fuentes, does the domestic debate change when there is a drone strike like that which we're discussing this morning, when there is a video that shows 100 plus of Al Qaeda leaders plotting against the United States? What is the impact domestically?

FUENTES: I think the impact politically would be to support the U.S. in trying to take out these people overseas. You know, lately, many of the attacks in the U.S. have been self radicalized individuals who try to put a group together and carry on an attack here. They may go overseas, they may not.

But in this case, it is showing that the heart and soul of Al Qaeda and their main affiliates such as the Al Qaeda and Yemen, they are still after us, still out there and they're still recruiting. They still want to get us. And as Phil mentioned, they are in a number of countries on several continents. All this does is show that American security officials have been saying all along is don't forget, these guys are out there and they are still trying to kill Americans.

SMERCONISH: You know, Phil, to Tom's point, you and I have had previously had conversations about how that Senate intelligence report pertaining to harsh interrogation methods and the black sites subjects, you know a great deal about. You've expressed to me concerns that were looking through 2014 lenses at behavior in a more immediate post-9/11 world. You know the issue that I'm raising. Might this change the way in which your actions and the actions of your former colleagues are evaluated?

MUDD: I don't think so. I expect there will be an intense debate in the coming weeks and months. I expect the Senate report to be released. Let me tell you something, my view is bring it on. I talked to the Senate. I talked to the Congress. I talked to the White House. I talked to the Department of Justice. They told us what you are doing is fine. It is legal. It is U.S. policy. It represents the correct interpretation of U.S. law. If someone wants to go back and drag us through the mud for what we did, I say bring it on.

SMERCONISH: Tom, final question if I might. So this week also brought news that within the New York Police Department, a unit, that's for lack of a better descriptor was spying on Muslims had been closed. In light of today's news, was that premature?

FUENTES: That is a different story. I think some of the criticism of that operation by the NYPD has also come from other law enforcement agencies and some officials in the FBI that alienating the Muslim community in a city like New York is bad practice. So you have to be careful in the nature of the operation that you are trying to get cooperation and build support in those communities so that when something happens or someone is trying to recruit a cell for jihad, that they report that to the police or the FBI. I think there has been a controversy all along of whether that program was maybe too strong and took on too much of an appearance of being just anti-Muslim and alienating a community.

SMERCONISH: Tom Fuentes, Philip Mudd, we are so fortunate to have you both. Thank you.

News this morning in the search for Flight 370. The bluefin AUV has captured the first ever images of the ocean floor search area and the White House beats its chest over sign ups to Obamacare, but should Dems log on or will it be a bad prescription for re-election?

(COMMERCIAL BREAK)

SMERCONISH: Take a look at this image. An illustration of what is going on right now under water in the search for Malaysia Airlines Flight 370. It is the bluefin-21, now in its seventh deployment mapping the massive Indian Ocean floor. And we're learning this morning that this submersible has just captured the first ever images of this part of the earth.

We are now at a quote "critical juncture" in the under water search for the plan. That was the message overnight from the Malaysian officials. And it's our unfinished story this morning. So far, the bluefin has mapped around 50 square miles while ships and planes continue to scour more than 20,000 miles. A deep sea search like this one has a unique set of challenges.

My next guests have knowledge of the subject. Andy Bowen is director of the National Deep Sea Submergence Facility at Woods Hole Oceanographic Institution and Christina Symons is a marine geologist and member of James Cameron's Deep Sea Challenge.

You know, thank you both for being here. It occurs to me that one week ago, the three of us were having a conversation about pingers and then the pings ended. Does the fact that the pings ended give credence, give credibility to the fact that they really were sounds coming from the black boxes. In other words, they were not from some other human-caused device.

Andy, I'll start with you. Sorry about the confusion.

ANDY BOWEN, NATIONAL DEEP SEA SUBMERGENCE FACILITY, WOODS HOLE OCEANOGRAPHIC INSTITUTION: Sure, Michael. That's fine. I think that is a reasonably logical conclusion to draw. Certainly everyone was looking very hard at the sources of the sounds. They are very distinctive, the frequency at which the beacons actually emit their sound is well known.

All of those elements came together along with the timing, as you were pointing out for the pings to essentially cease as a result of the batteries wearing out. So I think it follows in step with what we would expect and clearly they are moving rapidly toward a real capability toward searching to the sea floor.

Christina Symons, then, presumably that is why the Malaysian officials say this nest 48-hour time period is really of critical significance. In fact, he went so far, the acting transportation minister to say please pray for this next phase of the search. CHRISTINA SYMONS, MARINE GEOLOGIST: Yes, I think they are certainly focusing in the area of greater confidence. And so, if the next two days don't yield any results, then there are going to evaluate the information that they do have and they'll define a new search area and very slowly methodically they will investigate every area of the sea floor in that area.

SMERCONISH: Andy Houston said Agnus Houston said that this is an area new to man. Andy, we don't really know much about this particular part of the world, this particular part of the ocean floor.

BOWEN: That is true. You could apply the same statement to nearly any part of the ocean, to be quite honest, Michael. You know, we don't know what we don't know. And certainly, the issue here is the terrain is relatively challenging for a search of this type. I mean, you know, the way that the search system works is that emitting sounds which is essentially radiating out from the AUV that is being bounced off sea floor.

And what we are looking for are bounces that correspond to, you know, reflections that are there as a result of debris. If you get rocks or lots of reef, you know, it makes the challenge of identifying debris versus geology rather more difficult. So Christina circulated a map recently that showed us, you know, just how challenging the area really will be for them to search very thoroughly which maybe necessary to find the debris.

SMERCONISH: Christina, we have that map on the screen now. What else can you tell us about that?

SYMONS: Well, this is a (INAUDIBLE) map of the sea floor. On land we would call the topographic map that represents elevation. It is no different on the sea floor. The zenith plateau where they have been focusing the search indicated there by the red box, stands about a mile and a half, two miles above the surrounding sea floor and they are operating just on the north slope. The red box indicates an area about 100 square miles to give you some sense of what they completed surveying.

So it is a large area. This is not a very detailed map. We can't account for small changes and rocky surfaces. But our best guess is it is covered with sediment which is good for trying to find a debris field or man-made object on the sea floor.

SMERCONISH: Are you surprised, Christina, that there still has been no debris washed up ashore any where or located anywhere in the ocean?

SYMONS: You know, I am and I am not. I think that they have done a very good job modeling where the currents would have taken debris if this is in fact the area where the plane went down. Certainly, oceanographers are advising us to the location for those types of searches and that would explain the expanded search from the air and from other ships, looking for debris on the surface. So I'm not surprised, but it is maybe yet to come.

SMERCONISH: Andy Bowen, Christina Symons, thank you both very much for your expertise.

The growing threat in America and the no-brainer solution and eerily silent black and white video which should give everyone pause. Headlines redefined are next.

(COMMERCIAL BREAK)

SMERCONISH: Time now for headlines redefined. Headlines that got the story half right.

Number one from "Time." A Nevada rancher wants to disarm federal agencies. So you know some of this by now, right? The story of Clivan Bundy. He is the Nevada rancher who for two decades hasn't been paying his grazing fees. He says he doesn't recognize federal authority over the land he thinks it belongs to the state of Nevada or to the local country. On Thursday, he went on a radio program and he said "I don't recognize the United States government as even existing."

What surprises me is the fact that he is already had his day in court hasn't dissuaded supporters from coming to his aid, some of them heavily armed. This thing has turned into festivus. It's like the airing of all grievances against the United States. I see the claims of freedom and independence being asserted on his behalf as being at odds with the rule of law.

So that old headline which said this, a Nevada Rancher Wants to Disarm Federal Agencies. What I would have written Real Americans they recognize the United States.

Number two from "USA Today." Heroin is a growing threat across the USA, police say. And it is true. In some parts of the United States, more people are now dying from heroin overdoses than they are from car crashes. This is an epidemic that knows no borders, by geography, by race or any other demographic.

Here is one statistic for you. In New York City in 2012, 730 people died of an overdose by virtue of heroin addiction or addiction to opiate prescriptions. That is double the number of homicides. So there is a real issue here. Many heroin addicts begin by getting addicted to pain medications.

The good news is that there is an antidote. It's called naloxone or Narcan to some. Seventeen states have been welcoming of the use of Narcan which can reverse the effects of a heroin overdose. But other states say "No, we don't want this because it will actually encourage drug usage." To which I say that is a very interesting philosophical debate until it is your loved one whose life hangs in the balance.

So that old headline which read Heroin a Growing Threat Across the USA, Police Say, I would have written Narcan is a no-brainer.

Number three, from CNN. Portland water supply to be flushed after teen urinates into reservoir. It is true. 38 million gallons of water are to be flushed because a teen peed in the reservoir. Although I see that now in the next 24 hours, he is saying no, he urinated up against a wall. The water bureau head says look, my customer base demands a non-contaminated water supply. And that's why we're going to dump all the water.

The health experts say that this might be gross and it is, but there is actually very little of a health risk posed to society. They say as well that the water is already subjected to natural contaminates. The surprise for me in reading up on this story is that tat water in that reservoir goes directly from the reservoir into your bathtub or into your tap. There is no added filtration. Which I think is kind of troubling.

All right. I got three sons at home. So, you remember the old headline. The old headline said Portland water supply to be flushed after teen urinates in reservoir. What I would have written. Time to drain my swimming pool.

Number four comes from "The New York Times." Liam Neeson says carriages belong in Central Park. A hundred yards from where I'm standing are the horse drawn carriages of Central Park that are quite a tourist attraction. Mayor Deblasio came into office promising to get rid of them. He says that they're inhumane and he wants to replace them with vintage electric cabs.

Polls say that New Yorkers better than 60 percent, they really like this tradition. They really like the carriage trade. They want it to stick around. One of those New Yorkers is the actor Liam Neeson who says that the horses are treated humanely. That is a very tightly regulated industry and it's got a great safety record. He has urged Mayor Deblasio to meet with those who operate the handsome cabs and also to tour their stables.

Which brings to my mind, a new headline. Remember the old one, Liam, don't let - my headline is Liam, -- carriages, there we go. Liam: Don't Let Horses be Taken. You can see that movie, right?

So the White House says Obamacare was a big success. But should Democrats celebrate that success or ignore it?

And the dark tale of hostages murder and the multimillion dollar Major League baseball player.

(COMMERCIAL BREAK)

SMERCONISH: We start with the pretty big number. Eight million. That is how many people signed up for healthcare under the Affordable Care Act better known as Obamacare. When signups started with a messed up web site last year, many thought that the White House would be eating crow over their projection that seven million people would sign up. Instead, it was the president himself crowing when he talked about hitting the eight million mark this week. He also took a moment to chide his Republican detractors.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I find it strange that the Republican position on this law is still stuck in the same place it has always been. They still can't bring themselves to admit the Affordable Care Act is working. They said nobody would sign up. They were wrong about that. They said it would not be unaffordable for the country. They were wrong about that.

(END VIDEO CLIP)

SMERCONISH: And these are the kinds of things that the president was talking about

(BEGIN VIDEO CLIP)

REINCE PRIEBUS, RNC CHAIRMAN: We have been obsessed with Obamacare because it stinks. Because people don't want it.

SEN. TED CRUZ (R), TEXAS: The harms from Obamacare are penetrating all over this country as people are realizing this thing ain't working.

UNIDENTIFIED MALE: From living rooms to board rooms, from kitchen tables to counter tops, Obamacare is not controversial. It is universally despised.

(END VIDEO CLIP)

SMERCONISH: Joining me now to talk about the eight million mark and the political ramifications, Shannon Pettypiece, health care reporter for Bloomberg News, and Dr. Larry Sabato, the director of the Center for Politics at the University of Virginia. So, Shannon, we know that eight million signed up. What else do we need to know before we can properly assess the economic viability of the Affordable Care Act?

SHANNON PETTYPIECE, HEALTH CARE REPORTER, BLOOMBERG NEWS: Well, we need to know the overall health of these eight million people. That's going to be crucial to whether or not these affordable health plans people got are going to stay affordable. And under the law, basically the only information insurers are able to collect on these newly insured are how old they are, where they live and whether or not they smoked.

They don't know anything about their overall health. And that's what we're going to be finding out about these people in the coming months as they go to doctor's offices, as they start submitting claims to their insurers, we're going to find out how healthy these eight million people are.

SMERCONISH: And Larry Sabato, of course, Republicans most want to know, well, how many of them have paid.

LARRY SABATO, DIRECTOR, CENTER FOR POLITICS, UNIVERSITY OF VIRGINIA: Sure. Well, that's one of the things they want to know. But you know, fundamentally, Michael, this new number doesn't change the politics of Obamacare. We've been debating it for years. And every piece of new information at this point goes in one ear and out the other. Democrats are overwhelmingly in favor. Republicans are overwhelmingly opposed. And I've seen this before. This has become a part of the polarized partisan identification in the United States.

SMERCONISH: Larry, I value your opinion even though in 2008, you said Obama was going to get 364 electoral votes. And you're off. He got 365. But I still want to hear what you have to say politically speaking about this.

Young people in the end did come out and sign up. Apparently about a third of them are between 18 and 34. But will they vote in the midterm? Isn't that really the issue?

SABATO: Absolutely. Michael, you just put your finger on it. It's all about who votes. I think Democrats may try to use and should try to use these new numbers to stir their base and get some of these young people out to vote who usually don't show up in midterms. But, you know, it's really tough to change voting behavior. We're going to see turnout decline dramatically from the last presidential election and the people who vote in these midterm elections tend to be older, they tend to be more conservative.

And on top of all that, the Democrats are in trouble because this is the best map for Republicans in both the House and the Senate in two generations. There are so many red states where weaker Democratic incumbents are coming up for re-election. That's really what the election is. It isn't a national referendum. In the Senate, for example, only a third of the states are electing senators. Only half of the population is even voting for a senator. So you have to take it in the context of what this midterm really is. SMERCONISH: Shannon, the name of the act is Affordable Care Act. So at what point do we get the answer to whether in the long term premiums are affordable?

PETTYPIECE: Well, we should know how much insurance is going to increase next year in the next few months. And going into election season, a lot can happen between now and then that could change people's view of this and one of those is going to be the increase in premiums. We should know in a few months.

Now if a lot of healthy people go into this pool, they're going to help offset the cost of the sicker people in and that's going to keep things affordable. If there are not a lot of healthy people who've signed up, if it was just a bunch of sick people who ran out and got insurance and now are showing up at their doctor, you know, demanding a new hip or a stint or a heart procedure done, that's going to drive up the cost.

So going into election season, we could see a lot of people facing double-digit premiums going up if the pool is not balanced between the healthy and the sick.

SMERCONISH: In other words, are you saying there could be a run on ERs? There could be a run on physicians?

PETTYPIECE: Yes.

SMERCONISH: Because all of a sudden people who didn't previously have insurance now, hey, I have insurance, I want to go get treated.

PETTYPIECE: And ERs and hospitals are expecting to see a run on patients. And it's already showing up. And what happened in Massachusetts which did the similar thing when they expanded health insurance -- to nearly universal, in those first few years they saw a lot of people showing up at the ER.

SMERCONISH: Hey, Larry, what I most want to see politically speaking as the midterm unfolds is whether Democrats will say the sort of things that the president said at the White House this week. What do you think?

SABATO: They ought to. Look, it's not like they can avoid talking about Obamacare. They have to have an answer because they know their Republican opponents are going to attack them mercilessly on television on the stump. Obama has given them some good arguments. But remember, these Democrats, the vulnerable ones, are mainly in Republican red states and districts.

They have to quickly pivot to issues that will help them win not simply to defensively react to attacks by the Republicans.

SMERCONISH: Shannon Pettypiece, Larry Sabato, thanks so much for both of your expertise.

The private lives of pro ball players. Forget the luxury cars, forget the pretty women. This one involves human trafficking and hit-men. And the echoes of the Duke Lacrosse rape case being heard this week. Same problem, but a different school all together.

(COMMERCIAL BREAK)

SMERCONISH: Take a look at this face. It's the face of a young baseball superstar. The Los Angeles Dodgers' Yasiel Puig. But behind those eyes lies a story that may shock you. Everybody knows that Puig escaped from Cuba to land a fat contract from the Dodgers. But that's just a small part of the story.

This week in a must-read article in "Los Angeles" magazine, we learned that he is still very much tied to his past and to a strange underworld of smugglers, drug cartels and shady characters.

Joining me now is Jesse Katz who wrote the riveting story in "Los Angeles" magazine.

Jesse, this is tailor-made for Quentin Tarantino. Give me the cliffs notes version for those who've not yet read it.

JESSE KATZ, THE LOS ANGELES MAGAZINE: Well, Michael, we have to remember that there is no legitimate path for a Cuban ball player to get off of that island and get to the big leagues. They're the one nation in this world that has put its life -- the player has to put its life in the hands of a illicit pipeline that is kind of exploiting the chasm between the U.S.

In this case, Yasiel Puig had some financiers in Miami who put up $250,000 to get him out of Cuba. In return, Yasiel was going to repay them 20 percent of his future earnings. They got -- they did the work. They got him off the island. They brought him to Mexico and then there was the breakdown in the finances. And he found himself captive there for 20 some odd days.

SMERCONISH: All right. That sounds a little higher brow than the way in which I read it in your fine piece. It is an air conditioning repairman who is a small-time crook who turns to a Mexican drug cartel to make this happen, right?

KATZ: That's the -- that's the pulp version there. Yes.

(LAUGHTER)

KATZ: Yes. I mean, yes, Mr. Big is 29-year-old guy on probation for attempting to steal air conditioning units and possessing a fake Florida I.D. He contracts these Cuban American traffickers who traverse the Caribbean, you know, moving whether it's drugs or stolen boats or human cargo. And those traffickers, in turn, have to pay a tax, what they call a rite of passage, to the Mexican drug carter, the Zetas, for the -- you know, for permission to kind of trespass on their turf.

SMERCONISH: Have the Zetas been paid in full? Is there any reason to believe that there are -- there are Mexican drug cartel members out there still thinking they owed money for bringing this baseball superstar to the United States?

KATZ: You know, I'm not aware of that. I think the cartel is a layer or two removed from Yasiel Puig. The traffickers originally felt that they got stiffed. That they didn't receive their payment. They did come looking for Yasiel and his companions who were on that boat. And there were some, you know, very menacing threats made, death threats made against Yasiel both in the U.S. and toward his house, his home in Cuba.

My understanding is that those people have been paid off and Yasiel has begun to also pay off his financiers, the people who set this, you know, harrowing journey in motion in the first place.

SMERCONISH: Jesse, Yasiel Puig has released a statement saying, "I'm only concentrating on the season and being the best teammate and helping my teammates."

My reading of your work is that this is not a poor reflection on this guy. He goes from making $17 a month to a $48 million contract with the Dodgers. I mean, he just wanted desperately to get the hell out of there. Will you comment on that issue? Are there aspersions cast on him as you see it?

KATZ: Well, look, I mean, if you are to parse this article which is on LAmag.com right now, in English and in Spanish, you could find many moments where Yasiel has acted in ways that are maybe less than honorable, certainly ways that are self-interested. And that's also part of, you know, the system that he came from.

A very desperate difficult life in Cuba where people are forced into really impossible situations. But I think the -- what I'm heartened by is people have read this article, absorbed it, and, you know, emerged with a more generous kind of empathetic view of him. He's a complex, three-dimensional human being.

SMERCONISH: I think the story is terrific. Congratulations for writing it, Jesse Katz. And thank you for being here.

Sexual assaults at U.S. campuses are a larger issue than the educators themselves need to be schooled on.

Plus hate crimes this week. But can you answer me this? What isn't a hate crime?

(COMMERCIAL BREAK)

SMERCONISH: Right now there's a tangled rape investigation going on at Florida State. While no criminal charges are being brought against Heisman Trophy winner Jameis Winston. The attorney for his accuser announced this week that FSU suspended its own investigation partly because Winston wasn't cooperating.

The case puts a spotlight on how universities are struggling to manage sexual assault cases on campuses and it brings echoes of one of the most notorious alleged rape cases ever, that of the Duke Lacrosse players when three men from the prominent school's team were accused of raping a stripper in a bathroom. All three arrested, publicly shamed, repeatedly tried in the court of public opinion.

That is until the actual case began. What unraveled was a school terrified of being tarnished and accused of with no shortage of inconsistencies and a prosecutor with a penchant for hyperbole who would later be jailed and disbarred.

It's all expertly detailed here in William Cohan's book, "The Price of Silence: The Duke Lacrosse Scandal, The Power of the Elite and the Corruption of Our Great Universities."

And William Cohan joins me now.

You know that I've read and thoroughly enjoyed your book.

WILLIAM COHAN, AUTHOR, THE PRICE OF SILENCE: Thank you, Michael.

SMERCONISH: I've also read the reviews of your book. And several of them make this observation. This is from "The Times." They say that you've largely left out maybe the most important ingredient, your own analysis. So what's the conclusion 650 pages later after your analysis?

COHAN: Well, the conclusion is that this is an incredible story. And I first of all thought of my role as being an objective, dispassionate investigative reporter. So had I filled this story with my analysis ad nauseam, I would have been criticized for that, too. But I think, you know, as I think we've talked about before, I think that the real problem here is that the justice system was diverted in this case.

This is a situation where nobody covered themselves with glory. There were no heroes. We like our stories to have heroes. This is unfortunately not one of them. But we have a justice system for a reason. Prosecutors bring cases that they believe in whether they win them or not is part of what happens here. To not even allow this case to go to trial, to me, was a travesty of justice.

SMERCONISH: OK. Let me hit you with a contrarian interpretation after reading your book.

COHAN: Please.

SMERCONISH: Which is to say the justice system worked. It was ugly but it worked insofar as a woman frankly should never have been believed from the get-go because of her shifting narrative, a case where there wasn't DNA that matched, a case where one of the alleged rapists had an ironclad alibi, and a prosecutor who was very aggressive in the midst of an election.

It shouldn't have gone as far as it got. In fact, I'll even say this, thank God that they came from families of means and were able to hire lawyers who thwarted this.

COHAN: Well, that is certainly a very powerful argument, and that is currently, you know, the conventional wisdom about this. And I'm not disagreeing with it. But what I'm saying is that's not the way the justice system is supposed to work. Just because you have deep- pocketed families who can hire lawyers and exploit every mistake that everyone made, a lot of people don't have the access to that.

So the way the justice system is supposed to work is, yes, prosecutors who are supposed to use their judgment, Mike Nifong had been 28 years in the Durham prosecutor's office because this case came along. He was highly respected. This case did come along in the middle of his election. He didn't choose the timing of this case. He'd already announced that he was running for office.

I'm sure it played into it. But it's not the defining moment as someone had you believe. But the truth of the matter here is this is a case that whether we like it or not needed to go to a jury, whether Mike Nifong won this case or not, it needed for a public airing.

Now what we have instead is a secret investigation by the attorney general of North Carolina. He won't make that investigation or any details of it public or he won't make himself available for public interviews and the kids -- because Duke, for whatever reason felt they needed to do it, paid them $20 million each, and this has cost Duke University $100 million. As a Duke alum and as an investigative reporter, I wanted to know why that happened. That's why I wrote the book.

SMERCONISH: But Mike Nifong, the prosecutor, and I'm sure that name will ring a bell with everybody when they hear we're talking Duke Lacrosse yet again. Mike Nifong himself was removed from office.

COHAN: Yes.

SMERCONISH: Was disbarred, was jailed, apologized to these young men, and bought into the attorney -- I know all of this from you, by the way.

COHAN: Right. Right.

SMERCONISH: Bought into the attorney general's conclusion that they were absolutely innocent. So I'm confused as to how you can --

COHAN: Well, if he wouldn't have said they were absolutely innocent because innocence is not a word that's used in jurisprudence. But anyway, go ahead.

SMERCONISH: Not guilty.

COHAN: Right.

SMERCONISH: How can he come to the conclusion -- how can you come to the conclusion then that justice wasn't served here because there wasn't a trial? I mean, because this woman made an allegation? If this woman had evidence on her of having had sex with several individuals at the point in time, none of whom were Duke Lacrosse players.

COHAN: Well, and that is of course --

SMERCONISH: And like someone's son or daughter should go to trial --

COHAN: True.

SMERCONISH: -- based on that kind of a case or claim?

COHAN: Well, she made the claim. She made it repeatedly. She was -- she was examined by a nurse on the night of the incident at the Duke University Hospital. She was examined by doctors. They made reports. In that report, the nurse claimed that she believed that she had been raped and sexually assaulted. The police investigated it.

So, look, mistakes were made, and they were exploited, incredibly well by the defense. And it's an unfortunate situation all around. No heroes here. But I just don't believe that this is the way the justice system is supposed to work.

SMERCONISH: And I respect your opinion. It's funny that there's a consensus in some quarters that these privileged kids got away with something because of their privilege. My reading of the record suggests, thank goodness they were privileged kids, or this would have been a travesty, a kangaroo court.

I wish we had more time because you know I love the subject.

COHAN: Thank you, Michael.

SMERCONISH: The book is "The Price of Silence." William Cohan wrote it. And we appreciate your being here.

All right. Three people gunned down in what was meant to be a hate crime this week. But let me ask you this, isn't every crime a hate crime? I'll explain in just a moment.

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SMERCONISH: One last thing. Earlier this week, a 73-year-old white supremacist was charged with capital murder and one count of premeditated murder in the first degree for having shot and killed three individuals, including a 14-year-old, outside of two Jewish centers in suburban Kansas City. This was the day before Passover.

For years, the shooter was known to have shot off his mouth with anti- Semitism and racism. Unfortunately, last Sunday, he took action on his hatred. And now, local, state, and federal prosecutors are saying that they will pursue federal hate crime charges, as well. And for sure, if there were ever a textbook case for a hate crime, this would be it.

The Southern Poverty Law Center said that this guy was a founder and grand dragon of the North Carolina KKK, and from the backseat of a police car, after being apprehended, he declared "Heil Hitler."

In general terms, regarding something as a hate crime means that prosecutors believe the perpetrator was motivated to hurt or intimidate someone because of animus for their race, their ethnicity, national origin, religious background, sexual orientation or disability. And if convicted in a state such as Kansas, a person then could face additional punishment for the underlying crime.

Last Sunday's shooter apparently believed that he was shooting at people who were Jewish when, in fact, he killed three non-Jews. No matter it would still be regarded as a hate crime.

Now please don't misunderstand what I'm about to say. I have zero sympathy for this guy if convicted. I have long believed in the death penalty and a person who plans and carries out a killing like this, in my view, shouldn't survive. But I'm increasingly uncomfortable with the concept of a hate crime, especially where the number of groups protected is growing. I understand the deterrent intent, and I get that hate crimes are recognized so as to provide some of those most vulnerable among us with added protection under the law.

But I worry that the expansion of hate crimes sends a signal that some victims' lives are valued more than others.

Michael McGough captured some of my thinking in the "L.A. Times" this week when he wrote, "Some laws define hate crimes to include attacks inspired not only by racial or religious bias, but also by antipathy to veterans, disabled people, sexual minorities and the elderly."

As the list of protected groups gets longer and longer, the law may be approaching a situation in which every crime is a hate crime. And I would add to that, that in addition to raising questions about where hate crimes are providing equal protection under the law, we need to consider that at some level all acts of violence, unless maybe in the heat of the moment, involves some manifestation of hatred, and they should be punished severely without regard to a particular defendant's motivation.

Thank you so much for watching. I'll see you back here next Saturday. Have a great weekend.