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Firestorm Erupts Over Terror Trials; Will New Cancer Screening Guidelines Become Law?

Aired November 23, 2009 - 22:00   ET

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


ERICA HILL, CNN ANCHOR: Tonight, women concerned about when to get a mammogram have something new to think about. Will those recommendations, the same ones still causing such a stir, actually find their way into law? Well, amidst the outrage, administration officials said not to worry, noting these are only guidelines. But did they actually speak too soon? And could this derail the push for health care reform?

We're "Keeping Them Honest."

Plus, helping us, a high-powered panel to do that, former Hewlett-Packard CEO Carly Fiorina, feminist pioneer Gloria Steinem, both of them breast cancer survivors, and Dr. Bernadine Healy, all with us tonight.

Trying the confessed 9/11 mastermind just steps from ground zero, Dick Cheney calls it a show trial, implying the Obama administration actually wants to provide Khalid Sheikh Mohammed with a platform. Is the former V.P. selling New York and the justice system short? A "Strategy Session" tonight with two former federal prosecutors.

And a bit later, "Up Close": For 23 years, he was conscious, but unable to communicate -- how one man broke out of the prison of his own body.

First up, though, tonight, there are new questions about that blockbuster report on when to get a mammogram and just how it relates to the Senate health care reform package. Each one is controversial on its own, but, put together, they could become explosive, complicating efforts to fix health care and, some critics say, costing women's lives.

It all comes down to those new mammogram recommendations for women released last week and the language that we actually discovered just today when reading the Senate bill.

Randi Kaye is "Keeping Them Honest."

So, Randi, what you have found in this 2,074-page bill?

RANDI KAYE, CNN CORRESPONDENT: Two-thousand-plus, Erica.

I want to be very clear, first of all, about the timing of all this, because that is critical. On Monday last week, a so-called independent panel, the U.S. Preventive Task Force, came out with new recommendations for mammograms, suggesting women start routine mammograms at age 50, not 40, as is the standard now.

Now, one of the arguments is mammograms do more harm than good, cause more false positives and more unnecessary surgery for breast cancer. That sent women across the country reeling, wondering if they should or shouldn't be getting a mammogram and at what age?

So, two days later, Wednesday last week, the White House jumped to clear up some of the confusion and worry and to distance itself from the recommendations of that task force.

Health and Human Services Secretary Kathleen Sebelius said Wednesday -- quote -- ""The U.S. Preventive Task Force is an outside, independent panel of doctors and scientists who make recommendations. They do not set federal policy, and they don't determine what services are covered by the federal government."

So, "Keeping Them Honest," we read the Senate bill tonight. And, sure enough, that so-called outside and independent panel has its hands right in that bill. In fact, the Senate bill relies on that task force's recommendation to outline what preventive benefits Americans should have access to.

That's right. The same task force whose influence the White House is playing down is actually weighing in on whether or not your mammogram should be covered. Take a look right there in section 2712. It's titled "Coverage of Preventive Health Services."

It reads -- quote -- "A group health plan and a health insurance issuer shall provide coverage for and shall not impose any cost- sharing requirements for services that have in effect a priority rating of A or B in the current recommendations of the U.S. Preventive Services Task Force."

Well, that task force says mammograms between ages 40 and 50 is a level C, not a priority level, not covered. And here's something else. On the Health and Human Services Web site, the U.S. Preventive Services Task is described as the -- quote -- "gold standard" for clinic preventive service.

And insurance companies look to that panel for guidance on which preventive care practices they should actually cover. But now you suddenly have the administration distancing itself from this task force, which was assembled by Kathleen Sebelius' own department, and saying, in effect: Hang on. Don't pay any attention to those people. We're not going to listen to their recommendations.

Kathleen Sebelius told CNN last week -- quote -- "They do not make policy decisions. They don't make coverage decisions."

HILL: And all of this information coming out, of course, has set off the Republicans, who see this and also some other Americans are saying they see it, political or not, as a sign of rationing -- Randi.

KAYE: Right. Some Republicans have said this is the beginning of rationing, that mammograms would be limited and so would health care for some. Senator Kay Bailey Hutchison, a Republican from Texas, said that this will give government an excuse not to provide payments for frequent screenings. Still, the White House insists that these are just recommendations and will not be used to deny treatment or even to make coverage decisions.

HILL: But they are plenty to keep us talking. Randi, thanks.

We want to deeper now with Gloria Steinem, who is co-founder of the Women's Media Center. Also joining us, Carly Fiorina, former CEO of Hewlett-Packard. She is also a Republican candidate for the Senate in California. Both are breast cancer survivors. Also with us tonight, Dr. Bernadine Healy, health editor for "U.S. News & World Report" and former head of the National Institutes of Health.

It's good to have all of you with us.

Dr. Healy I want to start with you here, because as we just heard in Randi's report, earlier, of course, Kathleen Sebelius had come out and said, look, the task force doesn't set federal policy. But then, as we see there, section 2713, as Randi pointed out, clearly, this U.S. task force is -- could have a major role here. So -- so, what are we missing? Where is the disconnect?

DR. BERNADINE HEALY, FORMER NATIONAL INSTITUTES OF HEALTH DIRECTOR: Well, I think the disconnect is, they're saying it doesn't set policy. That is technically correct.

But Secretary Sebelius said, it does not influence, it does not determine what is covered. And that's where she is flat wrong. And either she didn't know the bill or she is sort of covering it up.

I think that this is serious, and it is not a Republican or a Democrat thing. It is about some details in this bill. And there are probably many others that could have and, in this one, it will have, a negative impact on people's health.

HILL: And there is so much to go through in that bill, because it is so long.

Gloria, you're a breast cancer survivor. When you hear about this particular item in the bill, is that a deal-breaker for you?

GLORIA STEINEM, CO-FOUNDER, WOMEN'S MEDIA CENTER: No, it's not a deal-breaker, but I'm really glad that CNN is reading the bill. But...

HILL: It takes a long time.

(LAUGHTER)

STEINEM: But, you know, I think what we have to fight for is individualized treatment, of course, because there are reasons why one would start mammograms later. Low-dose radiation is more of a problem for younger breast tissue. And there are false positives and all of that. But the important thing is that what is covered is what is recommended by a physician and desired by the patient. That's clearly what we have to fight for. But what worries me is that I fear that, in some ways, the coverage of this, which is good, has so outweighed another huge health issue. I mean, one in eight women gets breast cancer. One in three women needs an abortion at some time in her life.

And, you know, if that...

HILL: And that has been another sticking point which came up.

STEINEM: That is a huge -- a huge, huge, health issue. I mean, for years, I have been wearing a bracelet here with the name of Rosie Jimenez, who was the first person who died because they're -- of the Hyde amendment.

So, where is that coverage?

(CROSSTALK)

HILL: And that is a sticking point for some other women...

STEINEM: Right.

HILL: ... especially after the House bill.

STEINEM: And that's a deal-breaker.

HILL: And that's something we're going to get to a little bit later in the program.

Carly, I do want to ask you, though, Democrats have actually been saying that Republicans are -- are using both breast cancer and even women's health as bit of a political football. How do you respond to that?

CARLY FIORINA, FORMER HEWLETT-PACKARD CEO: Well, I'm going to respond not as a Republican. I'm going to respond as a woman who might well not be sitting here had I followed these new guidelines.

The new guidelines not only say that women can delay mammograms, but they also say that women should not be trained and self- examination, and a woman over 50 should only get a mammogram once every two years. In my own particular case, I found my own lump two weeks after a clear mammogram.

Had I not found that lump, and had I then waited a whole 'nother two years for another mammogram, I might well not have caught my cancer. So, I would just say to women out there, regardless of your political persuasion, please, do your self-exams and get regular mammograms. They literally saved my life.

HILL: We're going to continue the conversation after a short break.

And we would like to know what you think. You can join the live chat now under way at AC360.com.

Coming up tonight, as well: potentially life-saving news for parents, a massive new crib recall under way. We will tell you about that.

Plus, 23 years in a coma, or so doctors thought. It turns out, though, he was conscious all those years -- tonight, finally, how science is setting one man free.

(COMMERCIAL BREAK)

HILL: We're back talking about health care reform and how women's issues are central to it, first, abortion, now potentially mammograms and Pap smears all raising important questions about reform.

On the flip side, of course, the way things work now has its own controversies, insurance companies treating a past C-section delivery as a preexisting condition, not paying for certain women's reproductive options, but subsidizing things like Viagra.

Back now to discuss the issues, Gloria Steinem, Carly Fiorina, and Dr. Bernadine Healy.

Dr. Healy, we have heard so much in this health care debate about the importance of preventative medicine. And if the fundamental purpose of preventative care is to keep people healthy, then -- then why exclude something like a mammogram, if it could actually help?

HEALY: It's impossible to understand, except that what is driving this is cost, because the so-called harms to doing mammograms are radiation exposure, which is quite minimal, very minimal, even over a lifetime, and pain, anxiety, fear, which is terribly patronizing to women.

The more important issue, between the age of 40 and 55, the number-one killer of women in this country is breast cancer. It is a very aggressive breast cancer that hits women in their pre-menopausal years. It is more aggressive than in their 50s and 60s.

And to say we're going to walk away from identifying it in that group is -- is quite -- it's inexplicable and it is wrong.

HILL: Cost seems to comes up so much whenever we talk about any form of health care, and often with good reason. But, Gloria, when it comes to things like -- like mammograms, I know you're not a total supporter, that this may not be the best way to find all of those cancers.

But with it touching...

STEINEM: Well, it's not -- it's just -- anybody would admit that -- that mammograms are not accurate all the time. But it doesn't need we -- mean we don't need mammograms. Of course we do.

The worst part... HILL: But is this setting a -- I mean, if you look at it, though, is it also, going further, setting up some sort of financial roadblock for women to not only this type of screening, but perhaps other types of preventative care and screening heading forward because of cost?

STEINEM: Yes. No, no, we have to fight for individualized care. And this is -- it makes no sense to have categorical treatment. We're not categories. We're individual human beings.

And Carly is quite right. Most -- or at least 50 percent of breast cancers are found by self-examination. So, in a way, that part of the recommendation makes even less sense than the mammogram part.

HILL: And that was the part that, basically, those -- that those should be thrown out, that they don't -- that they don't do any good?

STEINEM: Well, no, no, not thrown out, but they said it was not cost-effective to spend time teaching. And it is true...

HILL: Teaching women to do it...

STEINEM: Yes.

(CROSSTALK)

HILL: ... and that they -- and that doctors may not need to advise it, which was surprising to a lot of women.

STEINEM: Well, it is true that you -- most women find breast cancer through familiarity with their bodies, but may not be technically self-self-examination. So, it may be that -- you know, there's this...

(CROSSTALK)

HILL: Right. Yes.

STEINEM: Right.

(CROSSTALK)

STEINEM: But the truth is...

(CROSSTALK)

HILL: But still -- still surprising to many.

STEINEM: Right.

HILL: When it comes to -- when it comes to health care, though, in general -- and, Carly, I want to direct this to you -- I know that you're not opposed to health care reform. And I know you were saying earlier, you know, you're speaking about this as a woman, not necessarily as a Republican. So, you would like to see an overhaul to the system in this country. But I know this bill, obviously, does not really do it for you. Is something, though, when it comes to health care reform better than nothing, to at least get that ball rolling?

FIORINA: Well, I would say, in general, yes, except that, in my opinion, this bill creates far more problems than it solves.

So, let me just go back for a moment to the issue of the panel. Recall, also, that this independent panel did not include an oncologist or a radiologist. In other words, there were no cancer specialists on this panel. And the panel was explicitly asked to consider cost, not simply science.

But, beyond that, the bill that's on the floor today, according to the CBO, will raise the costs of health care premiums, not reduce them. It will raise the cost of health care, not reduce it. It will put a huge burden on businesses, which the CBO estimates will be passed on to workers in terms of wages and jobs.

And it doesn't solve our fundamental problems. So, I think I am all for health care reform. And it is absolutely true that the preexisting condition rules, for example, fall most heavily on women. And we need to reform that, but this bill does not solve any of those problems.

HILL: Dr. Healy, I know you wanted to weigh in.

HEALY: Well, I think we play -- pay -- we pay absolutely too much for health care. And there is waste in the system. But in the area of cancer, particularly breast cancer, prostate cancer, we lead the world.

STEINEM: That's right.

HEALY: We're always dumping on ourselves because we're 39 or 38th on other things. We lead the world. This is one area where the world envies us. And here we're going to go in and we're going to tear apart a system that has been so successful.

So, this is not wise decision-making with regard to cost containment.

HILL: And one last question I'm going to give you. We have touched on this. Gloria, I'm going to give you the last word. When it comes to health care reform, so many people agree something needs to be done. But when you look at everything we have talked about tonight -- Carly brought it up herself -- are women being shortchanged? And is there a way to get around that and still get reform passed?

STEINEM: Well, no, you know, women's health is treated as political, because we happen to have wombs. So, you know, we -- it's the politics of reproduction.

But, on the other hand, there is a huge sperm count crisis in this country. The sperm count is just descending to -- you know, I have yet to see testicles put under congressional control.

HEALY: Oh, no, no.

(LAUGHTER)

HEALY: No, I think we ought to be fair here, though. In this bill, there is equal opportunity. Prostate -- PSAs for prostate cancer are totally zeroed out.

So, this is not just an issue for women. I think men just are not activists. Men have got to get exercised about it. We shouldn't have to carry the water for them.

(LAUGHTER)

HILL: Well, perhaps they should speak with the three of you for some pointers on getting out and being more of an activist and speaking up about it.

Carly Fiorina, Gloria Steinem, Dr. Bernadine Healy, good to have you all with us tonight. Thanks so much for your time.

HEALY: Nice to be with you.

FIORINA: Thank you.

HILL: Of course, the health care discussion isn't limited to actual health care.

It has plenty to do with policy and cold, hard "Raw Politics" and money. The costs in both dollars and goodies that a few conservative Democrats are demanding simply to get a bill on to the Senate floor and the price that some Republicans are trying to make them pay, it can all make your head spin.

That's why we going to Tom Foreman here, who is all over the "Raw Politics" tonight.

So, Tom, what is the next battle when it comes to health care?

TOM FOREMAN, CNN CORRESPONDENT: Well, Erica, the health care debate right now is entering what many political analysts believe is really the most critical and ferocious phase.

After all we have been through, the Democrats have won some key battles, yes. But, as lawmakers head home for Thanksgiving, the war is heating up like nothing else we have seen so far.

(BEGIN VIDEOTAPE)

FOREMAN (voice-over): The Republican National Committee has launched a missile.

(BEGIN VIDEO CLIP, REPUBLICAN NATIONAL COMMITTEE AD)

NARRATOR: One member sold her vote to the highest bidder. One member sold out his principles.

(END VIDEO CLIP)

FOREMAN: This is a new attack ad accusing the Democrats of having such a weak health care reform plan that they have to buy votes for it from their own senators.

Exhibit A is Louisiana's Mary Landrieu, who played a high-stakes game of chicken with all the president's men.

UNIDENTIFIED FEMALE: Ms. Landrieu.

FOREMAN: She did not commit to her yes vote until a provision was added to the bill to give her state up to $300 million in Medicaid funding.

SEN. MARY LANDRIEU (D), LOUISIANA: I'm proud to have asked for it. I'm proud to have fought for it. And I will continue to.

FOREMAN: She said the money did not affect her decision.

There's a deeper problem for the president, though. All the arm- twisting and deal-making in the Senate was just to keep health care reform alive and inching forward. The fight is only getting tougher. Forget the Republicans. There are deep divides even among Democrats and independents on how to pay for it, whether illegal immigrants can participate or abortions will be covered, and whether the government should be offering insurance to compete with private companies, the so-called public option.

Some senators insist, if that provision is left in, they will not support the bill.

SEN. JOSEPH LIEBERMAN (I), CONNECTICUT: I don't want to do anything as part of the health care reform that makes our economic crisis, our unemployment rate worse than it already is.

FOREMAN: While others hint, if the public option is dropped, they won't support the measure.

SEN. BERNIE SANDERS (I), VERMONT: I think that almost everybody in this country -- some exceptions -- should have the right to choose between the private insurance company and a public plan. That's what I'm going to fight for.

(END VIDEOTAPE)

FOREMAN: And the fundamental problem right now for the president and his party is that they have virtually no margin for error in all of this -- Erica.

HILL: No margin for error. So, basically, each one of these issues could completely derail this?

FOREMAN: Absolutely. That's the problem. As they navigate this mine field, they must somehow strike deals that get every Democrat on board, and the independents, too, or they have to lure at least one or two of the Republicans into their camp on all of those issues, because any one of them could be a deal-breaker.

And if they don't make this happen, after all of this struggling, arguing and finagling and fighting, they could still wind up with a health care bill that dies -- Erica.

HILL: And that would not sit so well.

All of it's going to continue to keep you busy, Tom.

(LAUGHTER)

HILL: Tom Foreman, thanks.

"Raw Politics" and big bucks -- to see just how big, log on to AC360.com for a breakdown of the money spent to influence the debate. I hope you're sitting down for that, by the way.

Tomorrow, the so-called "Botax," the government looking to take a cut from cosmetic procedures to help pay the high cost of health care reform. Could it happen? And is it fair? Well, actually, it's already happening, already on the books. We will show you the impact that this is having on doctors, patients, and on the economy. That's coming up tomorrow.

But, just ahead tonight, the case for and against trying the accused 9/11 terrorist right here in New York City in a civilian court. Do they pose a threat to New Yorkers or to the justice system? Or can the city, the system, frankly, all of us, deal with it?

And, later, equal parts medical nightmare and seeming scientific miracle -- how one man was finally able to reach out to the world around him after 23 years in what everyone thought was an irreversible coma.

(COMMERCIAL BREAK)

HILL: Still ahead: a medical mystery. Everyone thought he was in a coma. It turns out he was conscious. He could think. He could hear -- coming up, how one man finally escaped a prison of his own body after 23 years.

First, though, Randi Kaye is back with a 360 news and business bulletin.

Hello.

KAYE: Hello Erica.

The Consumer Product Safety Commission has announced the biggest crib recall in U.S. history, 2.1 million drop-side cribs made by Stork Craft Manufacturing. CPSC officials say defective hardware can cause suffocation or injuries to infants or toddlers, and warn parents to stop using the cribs right away. Tonight, President Obama met for the ninth time at the White House with his top advisers about Afghanistan. Secretary of State Hillary Clinton, Vice President Joe Biden and many others were there -- the issue, whether to send up to 40,000 more troops. No decision is expected until after the Thanksgiving holiday.

South Carolina Governor Mark Sanford has been charged by a state ethics commission with 37 violations of state law. The charges include using state aircraft to attend political and personal events, like the governor's secret trip to Argentina in June to visit a mistress. A separate impeachment resolution has been filed with the state legislature.

According to a report from the National Association of Realtors, existing home sales surged more than 10 percent in October to the highest level in more than two-and-a-half years.

And two sweethearts at the University of North Carolina at Chapel Hill have both won a Rhodes scholarship to Oxford University, both of them.

HILL: Geez.

KAYE: Henry Spelman and Libby Longino were among the 32 chosen this week. Look how cute they are. Spelman told the newspaper the really cool part of the news is that his girlfriend was chosen, too.

HILL: I'm glad he has got priorities in order.

KAYE: Yes, very, very nice.

HILL: Can you imagine the conversations between those two?

KAYE: No. But, you know, if they get married, they are going to have some smart kids, I bet.

HILL: Very smart children.

(LAUGHTER)

HILL: Randi, thanks.

President Obama and Sarah Palin finding common ground in a new poll -- and, while it may be good news for her, the same cannot be said for the commander in chief. We will have those results for you just ahead.

Also tonight, seeking justice or simply staging a show trial? Former Vice President Dick Cheney goes on the attack today over trying the 9/11 terror suspects in New York -- his words and the reaction coming up.

(COMMERCIAL BREAK)

HILL: Tonight, continued fallout over holding the 9/11 terror trials in New York -- the debate heating up now, with some of the sharpest words yet coming from Dick Cheney.

In an interview with radio talk show host Scott Hennen today, the former vice president slammed U.S. Attorney General Eric Holder, saying his decision to try the accused terrorist in federal court amounts to a mockery of justice.

(BEGIN AUDIO CLIP)

RICHARD B. CHENEY, FORMER VICE PRESIDENT OF THE UNITED STATES: I can't for the life of me figure out what -- Holder's intent here, in terms of having Khalid Sheikh Mohammed tried in a civilian court, other than to -- to have some kind of show trial here.

They will simply use it as a platform to argue their case. They don't have a defense to speak of. It will be a place for them to stand up and -- and spread the -- the terrible ideology that they adhere to.

(END AUDIO CLIP)

HILL: Many conservatives and critics of the Obama administration agree with Mr. Cheney. And Attorney General Holder has been grilled in recent weeks, most recently on Capitol Hill.

And, then, just this weekend, one defense attorney adding fuel to the fire here, saying the five defendants will plead not guilty, so they can give -- quote -- "their assessment of American foreign policy."

Time now to talk a little strategy session. Joining us tonight, CNN legal analyst Jeffrey Toobin. Joe Johns joining us in Washington, D.C., along with Bill Burck, who's a former federal prosecutor and was also deputy counsel to former president, George W. Bush.

Good to have all of you with us tonight.

Bill, I want to start with you. You've argued that trying these men in civilian court will make a mockery of our system. Although, frankly, U.S. federal courts have been used to try many terrorists. Among them, of course, the shoe bomber, Richard Reid, Jose Padilla, Zacarias Moussaoui, without a ton of fallout. So what makes this particular case and these defendants different?

BILL BURCK, FORMER FEDERAL PROSECUTOR: I think there are several things that make it different. One thing that makes it very different is that what we're talking about here, what really concerns those of us who are worried about bringing this to civilian court, is that Khalid Sheikh Mohammed, not that he's going to be convicted or found innocent. It's pretty clear he will be convicted of something.

The problem here is that he's going to use this, as he's promised, over the years as an opportunity to spread his ideology, to attack America, to put America on trial. This is not going to be about his guilt or innocence. It's not going to be about the evidence. For Khalid Sheikh Mohammed, it's going to be about what America has done to him and to his people. That is what this is about. And we don't believe that this is something that civilian courts should be -- have to be subjected to and should -- or are even designed to handle properly.

Remember that a defendant in a criminal case has an absolute right to testify if he wants to. Nobody can prevent him from doing that. And if he wants to get on the stand and spend two days or three days or a week or however long the judge will let him, talk about his ideology, spread hate, explain why America is wrong, he'll be able to do that.

HILL: Which defendants have done in the past in trials. Jeff, so based on what we hear now, is both -- are both Bill Burck in this case and former Vice President Cheney right? I mean what's to keep this from evolving into a show trial, as the former vice president called it?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, the Supreme Court says they have to have a trial somewhere: has to be a military commission, has to be -- or it has to be a civilian court. And in either place, he's going to get to testify. Maybe for a day, maybe for two days. So what? It's not going to be televised. It's not going to be anything more than a day or two in the news.

And he gets a fair trial. We are very good at having criminal trials in the United States. This is something we do very well. They are fair. They are respected. And if appropriate, people get the death penalty.

It seems to me that a trial where he spends a day on the witness stand saying whatever it is he wants to say is a small price to pay for a legitimate, honest, fair, internationally-recognized trial.

HILL: There's some talk about how fair the trial is and how political it's become. Joe, the debate that we're hearing these days is it really about the justice system in this country and proving that it works well, also justice for the victims of 9/11, or as this become, especially in Washington, more of another political football?

JOE JOHNS, CNN CORRESPONDENT: You know, this has been a political football for a long time. It goes all the way back to George W. Bush when he signed the original order creating the commissions. People ask, "Well, what are we going to call these people? Accused criminals? Are we going to call them combatants? Do we think they committed crimes? Do we think they committed acts of war? Or both?

And what the administration essentially has come down on is saying yes, they're both. "Some of them committed acts on American soil. We're going to take them to New York. Some we're going to keep, say, at Gitmo." So sort of a mixed bag here. But this has been a running debate on Capitol Hill for years, and it's just never been resolved.

HILL: When it comes to how they're being tried, Bill, looking at military commissions, which you've advocated for, that system has secured three convictions over eight years. So why would that system be a better place to try these five defendants?

BURCK: I think you have to look beyond the last eight years. Historically, combatants like Khalid Sheik Mohammed, Mohammed and others have been tried in military commission type processes, military courts. They've been viewed as enemy combatants, not as criminals.

The last eight years, to some extent, the delay has been caused by lawyers for the -- the terrorists challenging, as is their right, the military commission process and the rules that are set up in the Bush administration.

Now the -- one of the things that I think people don't understand is that we're going to have more and more years of challenges to the federal criminal process that is going to be news against Khalid Sheikh Mohammed. There will be challenges to the way that evidence is administered -- is entered at the trial. There will be challenges to the way the jury -- judge instructed the jury. There will be challenges to all kinds of procedures that are in the criminal process that will then be -- go up the 2nd Circuit and then up to the Supreme Court.

There's going to be many, many more years of challenges, the very processes that will be used in the federal criminal process. So this isn't over if you send it to federal criminal courts.

TOOBIN: Well, I think you have it exactly backwards. You used to be a prosecutor. You know the defendants can't appeal things before the verdict. They're not going to be able to appeal anything before the trial is resolved.

The real legal uncertainty is if you have a military commission. We haven't approved an execution based on a military commission since World War II. The law has changed a lot since World War II. If there's a death verdict in a civilian court in the southern district of New York. They'll get one appeal and we'll see how that goes.

But in a military commission, we don't even know how that procedure works, because it hasn't been done in decades.

Let me ask one last quick question about this trial, because this has come up. Bill, you said, you know, it's pretty clear he's going to be convicted of something, which a lot of people have said. In fact, a number of government officials, Jeff, you said a lot of this is about a fair trial.

How fair will that trial be if, going into it, we're hearing phrases like, you know, "justice will be served." You know, "he's going to be convicted." I mean, whatever happened to, in all honesty, in the U.S. system, you know, presumption of innocence?

TOOBIN: Well, that's a jury instruction. That's not -- that's not something we have to evaluate in terms of our estimate of what's going to happen. It's Khalid Sheikh Mohammed's problem that he's so guilty. It's not our problem. It's not the system's problem.

BURCK: On that point, Jeff, on that point you are also a federal prosecutor. And you know that it is not the norm for the attorney general and the president of the United States to be commenting on a pending criminal case, saying that this guy will be convicted and he will be executed. I don't think that's normal.

And 99 percent of what happens in federal criminal cases is the prosecutors are the ones -- they speak in the courtroom. And they talk -- and they do all their talking in the courtroom. They don't speak to reporters. They don't go on the Hill and predict the outcome of the case. You know that and you know this is a very different kind of case.

HILL: Joe, we'll let you weigh in with the last word there.

JOHNS: yes. People I talk to around this town, I don't think I've run into anybody who believes whatever happens in this trial that Khalid Sheikh Mohammed is going to walk away, even if by some freak of nature, he was actually acquitted.

HILL: You're not as much concerned for that. I know, Jeff, you're itching...

TOOBIN: He better not be walking down the steps at the end of Foley Square at the end of this trial. It just ain't going to happen.

BURCK: I hope -- I hope that's true. And I think the Obama administration understands they have other ways to keep him in prison or in custody, even if he is acquitted.

TOOBIN: I don't think he'll walk.

HILL: Jeff Toobin, Bill Burck, Joe Johns, a great discussion, as always. Thank you.

And we'd like to know what you had -- what you think, that is. Join the live chat happening right now at AC360.com. I'm going to log on now, because I haven't done that yet. I'm sorry.

Also up ahead, imagine being trapped in your own body. A Belgian man who lived this nightmare for 23 years, half of his life. Everyone thought he was in a coma. Turns out, though, he was awake the whole time. He could hear everything. He just couldn't let them know. So why did it take doctors so long to figure it out?

We're going to check in with 360 M.D. Sanjay Gupta.

Plus, new information about the doctor at the center of the investigation into Michael Jackson's death. You'll be surprised to learn what he's doing now. That's coming up.

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HILL: It sounds like something out of a horror movie. A man who everyone thought was in a coma for more than two decades was actually conscious the whole time.

Doctors misdiagnosed Ron Rubin after a bad car accident in 1983. They thought he was in a persistent vegetative state when in reality, he was trapped in his own body. He could apparently hear everything his friends, family and doctors were saying but had no way of letting them know.

So how does something like that happen? And just how common is it? Let's go up close now with 360 M.D. Dr. Sanjay Gupta.

Sanjay, it really does sound like a miracle recovery. I know the CNN medical unit spoke with his doctor today. What's the real story behind this recovery?

DR. SANJAY GUPTA, CNN CORRESPONDENT: Well, you know, there's a lot in how you describe it. He certainly had a car accident. And it sounds like he had a terrible brain injury at the time.

Now, where the story gets a little bit confusing is this diagnosis, as you said, of persistent vegetative state. He was diagnosed with this condition that, inherently from the title, means that it's going to last forever.

But even throughout the time over the last couple of decades, he would have these sort of what are known as lucid intervals. So all of a sudden you'd walk in and say, "Raise your arm," and he would do it. Or he would track with his eyes or something that gave an indication that maybe there were some glimmers under the surface here.

Really, it was his family ultimately that sort of pushed getting him further testing, transferred to a different hospital, where he was subsequently found to have fairly significant brain activity, relatively speaking, and is able to, you know, answer yes/no questions with the aid of a computer.

So much, much further along that his original diagnosis.

HILL: But as I understand it, the tests that eventually let people know, including his family, that he actually did still have brain function is a test that's been around and actually used a fair amount in the U.S. So how did they miss it for a period of 23 years?

GUPTA: You know, this happens in many countries around the world, many hospitals in different states even. What often happens is someone has some sort of traumatic brain injury. They get a diagnosis of vegetative state, for example.

Then the idea is they go to a rehabilitation facility where they're getting rehab. But they're not focusing as much on re- measuring the brain or reassessing the brain. They're just sort of trying to move limbs, make sure contractions (ph) don't develop, things like that.

So it can be over a period of time that a reassessment of the brain simply isn't done again. If they had done it earlier, they would have found this.

HILL: And a lot of it could depend, ultimately, on the medical facility that you're at and what their resources are. GUPTA: That's right. So smaller hospitals, in this case, probably not as likely to have some of the more sophisticated equipment that can test the brain activities. And you know, how the brain itself is reacting.

HILL: And for people watching who may have a loved one who is in some sort of a persistent vegetative state or a coma, the study that was referenced in a lot of the rights about this today mentioned the professor did the study and he found that 4 out of 10 cases were actually misdiagnosed. Is it that high that there's a misdiagnosis here in the United States?

GUPTA: Yes, surprisingly, yes. You know, in fact, we just did a whole documentary about this, called "Cheating Death." And we visited lots of nursing homes and lots of extended care facilities. That's where studies like this have been really been done.

And what they find is you up to a third of patients in those settings are misdiagnosed, with a diagnosis of permanent or vegetative state. But they go on to recover, meaning that it wasn't persistent or permanent ever.

HILL: Have you ever spoken, in your time as a physician, as a neurosurgeon, spoken to someone who was misdiagnosed and then ultimately came out of their coma, their persistent vegetative state? What was it like for them?

GUPTA: Yes, I did, actually. I spoke to a patient who was thought to be in a deep coma as a result of a head injury. And subsequently recovered and became quite high functioning. And came back and told us in the office one day that he remembered very specific things that were going on around him in the intensive care unit, conversations that took place that, you know, we independently verified.

So the fact that he could hear, process, and remember all that, I think was quite striking to all of us. We thought he was not responsive in any way or interactive in any way. He goes on to tell us. So he just remembered a lot of that stuff. And I think over time he felt frustrated because he was unable to -- to react to it like he normally did.

HILL: Sanjay, there's been a lot of chatter, especially on the blogosphere today, about Terri Schiavo, who passed in 2005, and whether or not her case can be related or even linked to the case of this young man in Belgium. Was there an opportunity that may have been missed with Terri Schiavo?

GUPTA: You know, I don't think so. I think the difference here is that with Terri Schiavo, it wasn't so much her diagnosis that was controversial. It was what she was able to do. How interactive was she? Was she able to communicate with her family? All those things were very different in terms of different exams you heard.

And I think what this illustrates in the case of Terri Schiavo and Rom Houben, who we're talking about now, is that it is very vague. There is no specific blood test or radiographic test that can say for sure if someone is in a vegetative state versus persistent vegetative state versus minimally conscious state. It is sort of an emerging field.

So it does get -- there can be controversy. And there can be confusion sometimes with regard to this.

HILL: Sanjay Gupta, always good to have you here to clear it up for us. Thanks.

GUPTA: Thanks.

HILL: Just ahead, a veteran and a CNN hero. One man's personal struggle with addiction becomes a mission to help hundreds of veterans. His inspiring story is ahead.

And take a look at this. A suspect in a bank robbery caught on tape eating a piece of paper? Is he trying to destroy the evidence? We'll get to the bottom of that in our "Shot of the Day," coming up.

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HILL: We're just three day as way from "CNN Heroes: An All-star Tribute." Tonight, a preview for you of one of the remarkable people being honored this Thanksgiving night.

His name is Roy Foster, a veteran who was once homeless. He now travels to those hidden places off the highway and down the back alley where other homeless veterans live, offering them safety, food, counseling, and camaraderie. In fact, Roy has now helped 900 of his fellow veterans.

He is one of this year's top ten "CNN Heroes" because he lives the code that is his motto, no man left behind.

(BEGIN VIDEOTAPE)

ROY FOSTER, HELPS HOMELESS VETS: Camouflage. To see camouflage used as a covering for a place to dwell, veterans should never, ever end up in a position such as this. It shouldn't happen.

My name is Roy Foster, founder of Stand Down House supportive services for our homeless veterans.

All right. This is the beginning, man.

So this day, another veteran coming off the streets.

What branch?

UNIDENTIFIED MALE: Air Force.

FOSTER: What's your MOS?

UNIDENTIFIED MALE: I don't remember.

FOSTER: You don't remember? How long you been out on the street?

UNIDENTIFIED MALE: Four years.

FOSTER: Four years.

I, myself, was a homeless veteran. Substance abuse issues. And at the completing of my treatment, I realized there needed to be a safe place for the veterans. What we're looking at is really giving this veteran back his life.

UNIDENTIFIED MALE: Hey, Brian. Welcome aboard.

FOSTER: Good, hot meals, housing. But most important, camaraderie. Do we watch each other's back? Absolutely. That's one of the things that is taught from day one in basic training. We're not one any longer. We are a unit.

UNIDENTIFIED MALE: The United States Army, service company 10th Special Forces Group.

UNIDENTIFIED MALE: I'm with the United States Marine Corps.

UNIDENTIFIED MALE: I served in Vietnam for a year and a half.

UNIDENTIFIED MALE: Iraqi Freedom, Enduring Freedom, 91st Base Command.

UNIDENTIFIED MALE: I was doing everything I could do to kill myself, drinking, drugs, and anything I could do. I don't have any of that at all now. I'm too old for it now anyway.

FOSTER: It's easier for a veteran to hide from another veteran his deepest secret. And that camaraderie is a vital part of being here at Stand Down.

UNIDENTIFIED MALE: I've been here about a month now.

UNIDENTIFIED MALE: I've been here five months.

UNIDENTIFIED MALE: One week.

UNIDENTIFIED MALE: I've been here about four hours.

FOSTER: There are so many cracks there in the system where a veteran could be easily left behind. Here I stand now. No. No man left behind.

(END VIDEOTAPE)

HILL: For more on Ray and his organization, you can log on to AC360.com. And you also hear Roy's acceptance speech and the stories of the other nine remarkable people we are honoring on "CNN Heroes: An All-Star Tribute." That's this Thursday night, Thanksgiving night, 9 Eastern and Pacific, only on CNN.

Up next, Michael Jackson's controversial doctor back in business. Just where is Dr. Murray working these days?

Plus, who's more popular, President Obama or Sarah Palin? I'll give you a couple minutes to think about it.

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HILL: Let's get you caught up on the other stories we're following tonight. Randi Kaye joining us again with a "360 Bulletin."

Hey, Randi.

RANDI KAYE, CNN CORRESPONDENT: Hey there, Erica.

Michael Jackson's doctor is back working at his Houston clinic. Dr. Conrad Murray met with a few patients, actually, today. He left his practice, actually, in April to help Jackson prepare for his London concert. He was with Jackson when he died in June and has been the focus of the death investigation, though he has not been charged.

In an L.A. courtroom, a not guilty plea from the man accused of secretly making nude videos of ESPN reporter Erin Andrews. Investigators say Michael Barrett filmed Andrews through altered peepholes at three hotels staying in rooms next door to Andrews.

To Ft. Bragg, North Carolina, now where more than 1,200 people showed up at a bookstore for a Sarah Palin book signing. Palin agreed not to make a speech because the Army worried her appearance could prompt political grandstanding against President Obama.

Meanwhile, her approval numbers are rising and President Obama's are falling. The "L.A. Times" reports, depending on what poll numbers you use, President Obama's approval rating has fallen to 49 or 48 percent while, according to ABC, Palin's favorable rating is now 43 percent.

And celebrity chef Paula Deen made the best out of this very bad situation. She got hit in the face by a flying ham. Ouch.

HILL: A ham?

KAYE: While she was passing out food to the homeless in Atlanta. That's when it all went down. Deen was shocked when it happened, of course. But laughed it off after getting an ice pack for her nose, saying she, quote, "ran head on into a hog."

That is live TV for you.

HILL: I would say so. Man, that must have hurt. That is a hefty piece of meat right there.

KAYE: Oh, yes.

HILL: Glad it wasn't me.

All right. Perhaps time for tonight's shot. Speaking of food, we're going to introduce you to the hungry bandit. It was recorded on a police dash cam in Ohio last week.

The guy in the hood of the police cruiser you're about to see is accused of robbing a bank. One of the cops take the piece of paper out of the suspect's hands and then look what he does with it. Apparently, authorities say, the letter was a note demanding money that he gave to a teller.

Also serves as a snack when you're in a rough spot. We may never know what it said, because as you see, he ate it. One piece of evidence swallowed. But authorities say they found loot stolen from the bank in his car, along with a gun believed to have been used during the heist. None of which are all digestible.

HILL: He can't swallow the cash. That would have been a bad move.

KAYE: Yes.

HILL: There you have it. Eating the evidence.

Coming up at the top of the hour, food for thought. New fallout from those mammogram guidelines. And concerns they could become part of health care reform package and how that could influence plenty of other health decisions. We'll talk about that and more with two prominent women, two of whom survived breast cancer.

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