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Special Report

Fallout over possible cover-up at CENTCOM

This is a rush transcript from "Special Report," February 25, 2016. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: The fight against ISIL will remain difficult, but we will continue to draw on all elements of our national power, military, intelligence, diplomacy, homeland security, law enforcement, and the strength of our communities. And I am confident that we will prevail.

(END VIDEO CLIP)

BRET BAIER, ANCHOR: President Obama at the State Department a short time ago talking about the fight against ISIS. Meantime, new shocking allegations from the chair of the House intelligence committee that evidence has been destroyed and the investigation into intelligence at U.S. Central Command.

(BEGIN VIDEO CLIP)

REP. DEVIN NUNES, R-CALIF.: It is vital that this committee protect and seriously consider the testimony of the many whistleblowers who provided information to us. For example, we have been made aware that both files and e-mails have been deleted by personnel at CENTCOM. And we expect that the Department of Defense will provide these and all other relevant documents to the committee.

(END VIDEO CLIP)

BAIER: In this hearing it said -- they said nearly half the intelligence analysts at U.S. Central Command said there are serious problems with the integrity of their work.

Let's bring in our panel, Judge Andrew Napolitano, Fox News senior judicial analyst, Charles Lane, opinion writer for the Washington Post, and syndicated columnist Charles Krauthammer. Judge, if you think back to all the focus on the pre Iraq War intelligence and all of the uproar about what was coming through chain about who knew what, you look at this, this is a big deal.

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: It is a big deal. And I'm sorry to say I think it will go nowhere in the Obama administration. If the president's purpose or the purpose of the people around him was to shade intelligence with which the American people are familiar in order to justify his behavior, they are not going to prosecute the people that did that shading. But there's only 11 months ago in his term.

These are prosecutable events. The willful destruction of information that the government requires be kept, particularly if they have reason to believe if this stuff is about to be subpoenaed by the Congress or any other subpoenaing authority. But don't look for anything other than political outrage and editorial outrage over this in the next 11 months.

BAIER: Charles?

CHARLES LANE, WASHINGTON POST: Well, it's really hard -- I have to say, it is very hard to know what to make of these statements that we've just heard. Look, the story in Iraq that you just heard was the hyping of intelligence to justify an invasion. This would have been the opposite of hyping of intelligence, the downplaying of intelligence to justify not having more --

BAIER: It would make it more rosy, a better picture of the fighting.

LANE: Exactly, downplaying the danger, downplaying the threat, whereas the threat was exaggerated in the case of Iraq. That was the charge.

And so when he says the e-mails have been destroyed, we don't know what those are or would have been. And we don't know when they say 40 percent of the analysts, we don't know how many that is. Is that four out of 10?
Is that 40 out of 100? There's a lot of smoke here, but I have to say, after watching the Benghazi investigation fizzle, I'm a little unclear as to exactly what they're going to produce out of this.

BAIER: Charles?

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Look, there's a matter of principle here and there's also practical effect. On principle you cannot have particularly the military, these are presumably not political appointees, shading evidence and distorting it and corrupting it and perhaps hiding it and deleting it.

But as for the practical effect, I believe the president when he said it didn't affect his decisions. He knew what was going on. I think the reason it would have no effect on his decisions is because with or without shaded intelligence, he believes that this in the end really doesn't matter. This is a man who believes that the arc of the moral universe is long and it tends toward justice. So why get all upset about the invasion of Ukraine, upset about what's happening in the South China Sea, or even the rise of ISIL? This is all 20th century stuff, invading other countries, taking territory.

To him, and particularly in the Middle East, he calls it a quagmire. He thinks that the Russians who are actually winning this war are actually hurting themselves. Putin has no idea what to make of such a president on the other side of the table. So for Obama, whether the intelligence was cooked or not, it wouldn't really matter. He is doing practically nothing and he will continue to do it until the end of his term because he thinks, in the end, nobody wins, it's quick sand. Why get involved?

BAIER: I want to turn to what was also talked about today, this effort to get into the phone of, the San Bernardino shooter, one of them, and Apple's pushback on this. Today Apple, the company argued that it violates the company's First Amendment rights, that the FBI is seeking dangerous power through the courts. That was part of the argument made by Apple.

NAPOLITANO: I read the briefs that Apple filed by a friend of mine and probably yours, Ted Olson. And it's a first rate legal argument. The law in the ninth circuit, the western part of the United States where this is going to will be argued in California is very clear if forced speech is not permitted, and software is speech. So without getting too into the First Amendment weeds, for the government to say you will create this software for us is the equivalent of you will give us these words, even though you don't want to articulate them when the First Amendment says we are not permitted to compel you to do this.

Big picture is, can the government absent a statute from the congress conscript a private corporation to work for the government against the corporation's will? By private I mean not owned by the government. Answer
-- this has never happened before.

BAIER: Here's the DOJ statement today. "The Justice Department's approach to investigating and prosecuting crimes has remained the same. The changes come in Apple's recent decision to reverse its longstanding cooperation in complying with all writs act orders. Law enforcement has a longstanding practice of asking the court to require the assistance of a third party, in effectuating a search warrant. Department attorneys are reviewing Apple's filing and will respond appropriately in court."

NAPOLITANO: If Apple had in a drawer what the government wanted. But what the government wants doesn't exist. The government thinks it has the power to force Apple to create it. That's unprecedented.

LANE: This is a really interesting move by Apple and Ted Olson to make this about the rights of the corporation.

BAIER: Corporations are people?

LANE: Corporations are people, too, as opposed to the rhetoric of Tim Cook which has been all about the customers and the individuals and the owners of the iPhone. It might win in court. I'm not sure that is a winning point for Apple in public opinion, because, after all, we're talking about the phone of an individual who is clearly guilty, and there is clearly material evidence in there, and that individual happens to be dead. So his rights are beside the point here. So I just thought that was clever but possibly, in the court of public opinion, not that popular an argument.

BAIER: Charles?

KRAUTHAMMER: I find this a weird and bizarre argument. The government is asking -- what we're saying is if the government asks for a key into a place where information is that could save a lot of people, you are compelled to turn it over. If the government asks you to make the key, it is a whole different thing. I'm not sure I understand a distinction like that and why it ought to matter.

I do think the thing is can you be compelled to do anything in the name of law enforcement is a legitimate argument, but once you concede that if you had a key, you have to turn it over, I'm not sure what the creation means.
I understand Apple's political argument. Once I create a backdoor it is going to spread. Everybody will have it and we'll all be less secure.
Yes, that's a reasonable, logical argument. But if that is not the argument being made in court, I don't understand what leg Apple has to stand on.

BAIER: To his point is does seem a little bit that people are talking over each other. The FBI and the DOJ, they are saying it's one time, this thing. It is not a back door for eternity. And if there is information on that phone, they say, that could save other people's lives, isn't that compelling?

NAPOLITANO: So there's two responses. Why did the government wait two and a half months if there's information only phone that could save other people?

BAIER: They were trying to get in it apparently.

NAPOLITANO: They got to the point where they had to stop trying to get into it because if you do it too many times, it will destroy the --

BAIER: I would have tried one, two, three, four.

NAPOLITANO: No less an authority on the Internet and on gathering intelligence than General Michael Hayden explained this morning once lose that key, it's there, its footprint there, and people can hack into it and save so much secure information on the Internet, even the government's information.

KRAUTHAMMER: It's there. It is where? In the phone?

NAPOLITANO: Somewhere on the Internet in a hackable location.

KRAUTHAMMER: Put them in a room, a padded room, and it's not on the Internet. I don't understand this argument.

LANE: You have to ask Tim Cook because that's what he says.

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