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ERIN BURNETT OUTFRONT

NYPD Interviews Chokehold Officer; Tamir Rice Case to be Presented to Grand Jury; Fallout from Senate Torture Report; Cheney: Senate Torture Report "Full of Crap"; Cosby Accuser Files New Lawsuit

Aired December 10, 2014 - 19:00   ET

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


ERIN BURNETT, CNN ANCHOR: OUTFRONT tonight, breaking news, the officer at the center of the Eric Garner case telling investigators he did not use a chokehold when he tackled the man. We have breaking details on the investigation coming up.

Plus a 12-year-old black boy shot and killed by a white police officer who didn't know the boy was holding a toy gun. Tonight his family's attorney speaks to OUTFRONT demanding justice for Tamir Rice.

And increasing calls to charge Bush administration officials with war crimes. We're going to talk to the man who wrote the legal justification for the CIA's use of torture.

Let's go OUTFRONT.

Good evening. I'm Erin Burnett. OUTFRONT tonight, we begin with the breaking news.

The officer at the center of the Eric Garner chokehold case, the case has ignited mass protests across this nation, is telling his side of the story for the first time.

CNN learning that Officer Daniel Pantaleo has spoken to the New York Police Department's Internal Affairs detectives. The officer insisting that as he takes down Eric Garner, as you see here in this cell phone video, he's the one with that arm comes from behind, he is not, he says not, in this interview with the investigators at the NYPD today, using a controversial chokehold that is banned by the police department.

Now this meeting taking place as protests are beginning to heat up more than a week after that grand jury failed to indict Pantaleo.

These are live pictures of protesters. Right now you are looking at live pictures in Orlando, Florida. This is all part of a week of outrage leading up to planned massive demonstrations this weekend.

Jason Carroll is OUTFRONT.

And, Jason, what more did Officer Pantaleo tell investigators?

JASON CARROLL, CNN NATIONAL CORRESPONDENT: Well, I can tell you, as you know, that Officer Pantaleo is standing by his story saying he did not mean to kill Eric Garner and that he did not use that chokehold. Pantaleo spoke to actually a panel of investigators at the internal affairs bureau. His attorney was present during the questioning, which I'm told lasted about two hours.

Remember, this internal police investigation is not about whether Pantaleo committed a crime. The grand jury has already made that determination. This is about whether or not he violated department policy. Use of the chokehold, as you know, is prohibited by NYPD policy.

Tonight his attorney telling CNN he indicated he never used a chokehold. He used a take-down technique he was taught in the academy. He said he never exerted any pressure on the windpipe and never intended to injure Mr. Garner. He was literally trying to effectuate an arrest with someone who was noncompliant. He was confident and related the facts in an accurate and a professional manner.

Eric Garner was heard, as you know, in that recording saying that he could not breathe during the altercation. If investigators determine Pantaleo violated policy, they will file departmental charges against him. After that he would have a right to a departmental trial. If a judge would determine guilt or innocence, the entire process, I'm told, could take about three or possibly even four months.

BURNETT: Jason, it's pretty interesting, and as we said, you know, he's spoken to the grand jury. This is the first time he's spoken, you know, in this investigation with the NYPD.

CARROLL: Right.

BURNETT: Which is very important. Are you hearing anything, though about this -- you know, we understand he had been on paid administrative leave during the whole grand jury process.

CARROLL: Yes.

BURNETT: What about now? Will he keep his job?

CARROLL: Well, you know -- you know, that's the big question. I mean, if he is found to have violated department policy, then what ultimately will it come down to in terms of punishment? It's the police commissioner, William Bratton. He will be the one who will ultimately decide what, if any, punishment this officer will face. So it's ultimately -- it's going to come down to the -- Commissioner Bratton to make that determination.

BURNETT: All right. Jason Carroll, thank you very much with the breaking news.

And now our legal analyst Mark O'Mara, Harry Houck, a retired NYPD detective, and James Williams, an attorney for Dorian Johnson. That's the young man who was with Michael Brown, when he was shot and killed in Ferguson, Missouri.

So, James, let me start with you because you just heard the statement from Pantaleo's attorney, insisting the officer told the NYPD that he did not use a chokehold which is banned by the NYPD, but rather a, quote-unquote, "take-down technique."

What do you say?

(LAUGHTER)

JAMES WILLIAMS, ATTORNEY FOR DORIAN JOHNSON, EYEWITNESS TO BROWN SHOOTING: You know, I don't know why it is that the rules are always changing and the semantics are always changing whenever we're talking about victimization in the black community.

Anyone who watches this video, and I watched it again, as sickening as it is to watch, you can see this officer. He takes his arm. He uses his forearm across the windpipe of Mr. Garner and he's pulling it forward until he pulls the man down.

Takedown maneuvers in police departments, look at them, they involve momentum, they involve physics, they involve leverage that is designed not to hurt the suspect or the officer. In this case, they didn't do -- he didn't do anything but put his hand around his throat and swing around his neck until he fell to the ground and held on until the man died.

This is absolutely a chokehold. The world has seen it as a chokehold, and yet again, yet again, we have a situation where a police department is trying to tell the black community --

BURNETT: So --

WILLIAMS: -- and America something that's just not accurate.

BURNETT: And I think we have to admit that to most people who see that video, they do see a chokehold, then there's questions as to whether they think it's fair or not.

Harry, let me ask you, because I spoke to a pathologist who said look, absolutely, Pantaleo should have been indicted because when he looked at the autopsy, there was significant pressure applied to his neck. That he could see that in the autopsy and he said whatever you want to call it, how it looks, that's what a chokehold does. And so it was a chokehold. And he should have been indicted.

HARRY HOUCK, FORMER NYPD DETECTIVE: Well, it wasn't a chokehold. That was a takedown.

BURNETT: So what's the difference?

HOUCK: There's a big difference if you some martial arts expert to come on with a chokehold. All right, there's two different types of chokehold. There's one that crushes the throat here and there's one that crushes the carotid arteries. That one will knock you out for several seconds, putting down on the ground, knock them out, and get handcuffed.

BURNETT: And that's the one you're saying he used? HOUCK: That's the one -- no. But that -- he didn't use a chokehold.

He took -- I did this 100 times, like I told you before. Did this 100 times. That is the safest way to take a man down who is 6'4", 350 pounds. And like that gentleman we just saw -- just said, when that officer was down on the ground with him, he wasn't choking him to death, he just had him by the neck so he could be handcuffed.

There is no proof, there's no proof that he died like that man just said, when he was choked to death on the ground. He wasn't. He was breathing when EMS picked him up.

BURNETT: All right, Mark, let me ask you, because this is going to come down to the New York Police commissioner, right? Bill Bratton is going to deal with this.

MARK O'MARA, CNN LEGAL ANALYST: Yes.

BURNETT: If he determines Officer Pantaleo violated the rules, he says there's going to be an open trial. So now, you know, you've got Pantaleo in this new investigation today for the first time about what happened. So how likely is it that the NYPD is going to go against the grand jury, against the legal system and say, yes, this was wrong?

O'MARA: I think they're going to say he was wrong for a couple of reasons. One, he has sort of become now the poster child for police actions that are at least interpreted as being brutality. And the other reason why is I will tell you that, though I'm not an expert in it, I did talk to one who is, and though the initial takedown maneuver which is what we're just being argued may not have been a chokehold, also -- the expert also told me, Dennis Ruud who's testified many times, that when he had him on the ground and he continued the pressure on his neck, that was a chokehold.

I think NYPD is going to say we cannot have our officers acting that way, that was a close enough if not an active department policy violation. And then there's also the reality. Pantaleo cannot be a cop in New York City anymore. He just cannot be. He has now become -- like I said poster child of this. He's going to have to move on to another state and maybe another profession.

BURNETT: So, James, when you hear that, what do you think? I mean, because part of the problem here is that some people say this wouldn't have happened, there would have been no need for a chokehold, a takedown, whatever, if Garner had not been resisting arrest.

WILLIAMS: That's correct. You know, at some point we have to get -- you know, not every minor offense committed by a black American or a young black American is a capital offense. We're -- you know, black Americans are entitled to judges and juries just like everyone else.

And so just like Michael Brown didn't deserve to be killed for whatever offense he may or may not have been committed, Eric Garner didn't deserve to be killed using an illegal department maneuver for allegedly selling cigarettes. That the punishment doesn't fit the crime. And that's the problem here. BURNETT: So I want to show one more video before we go as we talk

about this issue of what police are supposed to do in this country. I want to play it. This is an officer in New York during a protest. All right. So this is a protest and a police officer gets a sucker punch. Basically a punch in the face. You're going to see this.

HOUCK: Right.

BURNETT: As you say. It's hard to tell these two people in the hoodies. The race actually looks like the guy doing the punching is white from what I can see right here. What's the right response for a police officer to do right now, especially in this environment? The guy just got punched in the face.

HOUCK: You've got to make an arrest. That officer was just assaulted. You can't let that stuff go on. How many more police officers should get punched like that?

Police officers don't get paid to get punched or killed or hurt. They want to go home just like anybody else. That man that threw a punch at that officer should have been taken down and arrested.

BURNETT: So, Mark O'Mara, do you think the officer didn't do that because he was afraid, because of the public atmosphere right now?

O'MARA: Well, that's part of it. Cops are really under the gun right now. They really are under the microscope. I -- you know, I've taken flack for saying that. It's unfortunate that Eric Garner died but you cannot resist an arrest on street or bad things happen. And in the other sense, even with protesting, if you hit a cop, that is a very serious offense.

Arrest him and he gets a harsh sentence because we have to respect the authority that we give to our officers who we tell them to enforce our laws on the street.

BURNETT: James, final word.

WILLIAMS: You know, what should not happen is you don't get to kill someone if you're punched in the face and you don't get to choke them to death or shoot them. What should have happened is what should have happened in the Michael Brown situation and in the Eric Garner situation. If you think there is a problem, you arrest a person. You don't get to kill young black people in the street.

BURNETT: All right. Thanks very much to all three of you with those latest developments.

Next, protests are heating up across the United States again tonight. Surveillance video that we now have shows a 12-year-old black boy playing with a toy gun, shot and killed by a white police officer. The family's attorney speaks to OUTFRONT. Plus a new part of this video.

And then in the wake of the torture report, we're going to talk to the man who actually wrote the legal memo, wrote the memo that justified what the CIA did.

And an accuser files suit against Bill Cosby. This time it's for something you might not expect.

(COMMERCIAL BREAK)

BURNETT: Breaking news, protests heating up across the country in the wake of the grand jury decisions not to indict in the deaths of Michael Brown and Eric Garner. This as the nation's attention is turning to the shooting death of another young African-American man. A boy in this case. Twelve-year-old Tamir Rice.

He was killed by a police officer who mistakenly thought Rice's toy gun was real. The prosecutor today confirms to OUTFRONT that the case will go before a grand jury, something Rice's family is adamantly fighting.

The family attorney will join me in just a couple of moments but first our OUTFRONT report on Tamir Rice.

(BEGIN VIDEOTAPE)

BURNETT (voice-over): It began with a call to 911.

UNIDENTIFIED MALE: There is a guy out here with a pistol, you know, probably fake. He's like pointing it at everybody.

BURNETT: The guy was a 12-year-old, Tamir Rice, seen here on surveillance video playing with a pellet gun in a park across the street from his Cleveland home. The police dispatcher apparently didn't relay the part that the gun could be fake. As soon as a squad car pulls up and within two seconds, Officer Timothy Loehmann guns down the boy.

DEPUTY CHIEF ED TOMBA, CLEVELAND POLICE: Three commands were given, show your hands, by Officer Loehmann as he pulled off to the raise your hands by the officer as he pulled up to the gazebo there.

BURNETT: Tamir died the next day. His mother says police wouldn't even let her go to her dying son.

SAMARIA RICE, TAMIR RICE'S MOTHER: As I was trying to get through to my son, the police told me to calm down or they would put me in the back of the police car.

BURNETT: The county prosecutor says the case will be heard by a grand jury to decide if the officer will face charges. The Rice family attorney wants to bypass that process and have the case go directly to trial.

BENJAMIN CRUMP, ATTORNEY FOR TAMIR RICE'S FAMILY: We talked about it in Ferguson, when there is probable cause, you don't have to have a grand jury. You can do what the Constitution says and charge the person.

BURNETT: Samaria Rice say she wants justice for her son. RICE: I'm actually looking for a conviction.

(END VIDEOTAPE)

BURNETT: Joining me now is our legal analyst and criminal defense attorney Paul Callan, along with Walter Madison, he is an attorney for Tamir Rice's family.

And Walter, I want to begin with you. The prosecutor's office now telling us that the police have 90 days to finish their investigation then the prosecutor's office is going to take the case and put it in front of a grand jury. They said that's their policy in any fatal use of deadly force by police officers.

Obviously I know the family doesn't want a grand jury, they want charged directly. What can you do?

WALTER MADISON, ATTORNEY FOR TAMIR RICE'S FAMILY: Well, the policy should change. They have 90 days to prepare and prep this witness on what they will say and how to avoid, you know, the pitfalls or the type of language that would lead to probable cause and the reality is, you can't change what we see in the video and this person, this officer, we give them weapons because they've had hundreds of hours of training.

And we -- they take an oath, they swear to uphold the law. And we give them extra protection, we give them latitude. But when you behave as the video indicates here, so recklessly and with perverse indifference to a child's life, you divest yourself of that deference and you should be charged like any other person.

BURNETT: So, you know, one ex-police officer was telling me his issue actually was not with the police officer who shot Tamir Rice. It was the police officer who drove up so close to the boy, leaving his partner, this ex-cop said, without any other option.

We know that the 911 dispatcher, our understanding is, did not tell those officers that that gun was -- was a toy. That they thought it was a toy. So knowing that, knowing that they may have thought that gun was real, knowing they may have driven up too closely, does that change your certainty that something wrong happened?

MADISON: Well, first of all, that's part of the training on how they should approach a situation if they believe it's a deadly weapon involved or a serious threat. There should be some adherence to the trend to de-escalate the situation, not provoke an individual, in this case a child. They probably frightened him. And he reacted. And it doesn't matter about the weapon, whether it had an orange tip, or anything like that, it wouldn't have made a difference because it was 1.5 seconds.

BURNETT: Right.

MADISON: And he was gunned down.

BURNETT: It is -- it is an important point, Paul, that this happened in less than two seconds. How can an officer ascertain anything in that amount of time?

PAUL CALLAN, CNN LEGAL ANALYST: Well, there is one thing that he can ascertain and that is, in Ohio, if you have a gun that is a toy gun, it's supposed to have orange on the front of it. Color on the front.

BURNETT: Which is what Walter was just referring to.

CALLAN: But there was no orange on this gun. It had been removed. So this gun would have looked like a real gun. We also know that a pedestrian was walking by on the sidewalk, was frightened because the young man --

BURNETT: So I want to show that.

CALLAN: Yes. OK. Go ahead.

BURNETT: Hold on one second, as you bring that up because this video is new probably to a lot of you watching who know the story. This is what happened before the actual incident itself. Tamir Rice is there with his gun and as somebody walks by, we've blurred them out for legal reasons, but the look on this person's face was one of fear.

CALLAN: Well, yes. I saw it before she was blurred out. And the person is terrified. The call that is made to the dispatcher says guy with pistol. So the police, as they approach, think there is a guy with a pistol, there is no orange on it, and in that 1.5 seconds he reaches into his waistband and apparently pulls the gun.

MADISON: That is not accurate.

CALLAN: So a 12-year-old can fire a gun as easily as an adult.

BURNETT: But one of the calls to 911 did say it was probably a toy gun.

CALLAN: Which was not reported to the police.

MADISON: And he said that more than one time.

CALLAN: Which was not reported to the police.

MADISON: It was indicated more than one time that the weapon was probably fake and that this was a small child.

CALLAN: But that was not reported to the responding officers.

MADISON: It was not -- then that's another issue we have.

CALLAN: But that -- we're talking about whether this cop should be indicted for criminal behavior.

MADISON: And he should be.

CALLAN: He was not told. He was not told that it was a play gun.

MADISON: Paul, within 1.5 seconds, he would have -- the Cleveland Police Department would have us believe that he's able to evaluate a threat, un-holster his weapon, aim and fire two shots in the gun of a child in 1.5 seconds. More likely he had that gun out before he got on scene.

CALLAN: He -- I would agree with you.

MADISON: If you were to go to that recreation center --

CALLAN: I agree with you. He may have had the gun out in advance. But certainly that doesn't --

MADISON: Well -- but the totality, Paul, if you will.

CALLAN: Sure.

MADISON: The totality of the situation and the circumstances would suggest that he was kicked out of one police department. He was trigger happy. He was unable to manage his emotions in stressful situations and if you go to the Caddell Rec Center, and you look at that actual crime scene where that boy was murdered and gunned down, you'll see that it was nearly impossible without tearing up the suspension of a vehicle, to get exactly where that car was. There is no reason for them to be there.

CALLAN: The officer who fired the gun was not driving the vehicle. So I don't know who made the choice and --

(CROSSTALK)

BURNETT: But Paul, what about --

CALLAN: Which is why it's a good idea to present the case to the grand jury, which, by the way, is required by Ohio law. I don't know how you can say it shouldn't be --

(CROSSTALK)

BURNETT: Paul, what about --

MADISON: Not necessarily.

BURNETT: I'm sorry, go ahead Walter.

MADISON: You may, before 15 years ago there was a preliminary hearing in Ohio. And in these cases of excessive force with police officers, there should be a preliminary hearing. We need to remove the secrecy of grand juries. It needs to be transparent and our county prosecutor was a former judge, on his Web site he talks about transparency, he talks about reform.

CALLAN: But Ohio law -- Ohio law requires a grand jury presentation before a felony can proceed unless the officer waives the presentation. And I'm sure if you were representing the officers in this case, you wouldn't be waiving the right to a grand jury.

MADISON: Well, listen, Justice Frankfurter indicated that justice should match the perception of justice. And clearly --

CALLAN: Well, we can't make up the law as we go along.

BURNETT: Well, the law did --

MADISON: I'm talking about Supreme Court Justice Frankfurter.

BURNETT: Is in place since May 2013. The laws do change.

MADISON: That's exactly correct.

CALLAN: Well -- but the law in place now requires a grand jury presentation in Ohio.

MADISON: There's -- and the law also in Ohio allows for a preliminary hearing. It's up to the particular jurisdiction to do away with it and go with direct presentment and direct indictment presentment to a grand jury.

BURNETT: All right.

MADISON: So there's nothing wrong and the law still allows for preliminary hearings and in these instances, hopefully there are few, but lately there far too many. There should be preliminary hearing where a person may cross-examined this officer and that officer be forced to answer questions promptly after the incident not 90 days when you're allowed to be prepped.

CALLAN: It's a tragic case, I agree with you completely.

BURNETT: All right.

CALLAN: And we need a fair and just presentation of it and, you know, I hope that we get that in Ohio.

BURNETT: All right. Thanks very much to both of you.

And next, should Bush administration officials be charged with war crimes? There are some who are now saying that and we are going to talk to the man who crafted the legal defense for the enhanced interrogation techniques that we are all learning more about this week.

And one of Bill Cosby's longtime accusers. She says he drugged her then sexually assaulted her. She's now filing a suit against the comedian but you're not going to believe the charge.

(COMMERCIAL BREAK)

BURNETT: Tonight, criticism from around the world after the Senate Intelligence Committee unveiled its report on U.S. torture. But former Vice President Dick Cheney is standing firm, saying the report is, quote, "full of crap," and defending what the U.S. did to detainees captured after the 9/11 terror attacks.

(BEGIN VIDEO CLIP) RICHARD CHENEY, FORMER VICE PRESIDENT: Khalid Sheikh Mohammed who's the mastermind of 9/11 who has killed 3,000 Americans, taken down the World Trade Center, hit the Pentagon, would have taken out the White House or the capitol building if, in fact, they hadn't been for the passengers on United 93.

He is in our possession. We know he's the architect and what are we supposed to do? Kiss him on both cheeks and say, please, please, tell us what you know? Of course not. We did exactly what needed to be done in order to catch those who are guilty on 9/11 and to prevent a further attack and we were successful on both parts.

(END VIDEO CLIP)

BURNETT: All right. In just a moment I'm going to speak with John Yu who wrote the legal justification for the interrogation tactics. At least one top U.N. official, though, is demanding that Cheney, Yu and other Bush administration officials be prosecuted.

Susan Malveaux is OUTFRONT.

(BEGIN VIDEOTAPE)

SUZANNE MALVEAUX, CNN NATIONAL CORRESPONDENT (voice-over): The revelations of graphic torture, including beatings, sleep deprivation and rectal feedings. Techniques used by the CIA has led to immediate cries for justice. A top human rights official at the United Nations called the program a criminal conspiracy and demanded that those responsible must face criminal penalties commensurate with the gravity of their crimes.

Those named in the report include President Bush, Vice President Cheney, the attorney general, CIA officials and legal advisors John Rizzo and John Yu. But President Obama expressed little appetite for prosecuting. His focus, he says, is looking forward.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: My goal is to make sure, having banned this practice as one of the first things I did when I came into office, that we don't make that mistake again.

MALVEAUX: The Department of Justice has not pursued cases, saying in a statement that after review by prosecutors, admissible evidence would not be sufficient to convict. The Senate report according to Justice doesn't change that.

STEPHEN VLADECK, LAW PROFESSOR, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW: I don't think it's likely anyone will be prosecuted, not because they can't be prosecuted, but rather because I think it's going to be so toxic if such cases are brought.

MALVEAUX: While here in the U.S., those named in the Senate report are protected from prosecution but what about overseas?

VLADECK: It's certainly possible that at least some of the individuals who are implicated by the torture report could be prosecuted or be charged in countries where these abuses took place. MALVEAUX: But the Justice Department said it would fight those

efforts and prevent unwarranted prosecution of U.S. officials.

(END VIDEOTAPE)

MALVEAUX: And the CIA's acting general counsel John Rizzo revealed today that there were several CIA employees who he said went over the line, who were punished administratively, asked to resign, and sanctioned one way or another. And that one employee, a contractor, was actually criminally prosecuted for assault. So, he says that the notion that people got away scot-free with committing these abuses is just mistaken -- Erin.

BURNETT: All right. Suzanne, thank you very much.

Now, John Yoo worked in the Justice Department's Office of Legal Counsel between 2001 and 2003, those crucial years he crafted the legal justification for the CIA's enhanced interrogation techniques.

John, I appreciate your taking the time to be with us tonight, because obviously there are some important questions as everyone tries to understand the truth here.

Alberto Gonzalez, the then-attorney general, just told CNN that he was not aware of one of the methods mentioned in the report, specifically, quote, I'm quoting him, "sticking items to the rectums of individuals, was certainly nowhere close to what the lawyers were aware of, or sanctioned. Former Vice President Dick Cheney obviously defending everything that happens, saying the report is full of crap, just said he wasn't aware of rectal feeding of detainees either.

Were you aware of that?

JOHN YOO, WROTE LEGAL JUSTIFICATION FOR ENHANCED INTERROGATION TECHNIQUES: No. But I'm not sure everything in the report was accurate because it was undertaken without bipartisan operation and the people accused never got a chance to testify before the committee.

If you assume it's true, what the report says on the one interrogation method, that's I think what General Gonzalez said is accurate. That was not one of the interrogation methods that the Justice Department reviewed in 2002, or I think ever since. So, that's the case where someone acted outside the rules and they would be subject to some kind of investigation or punishment as you said earlier on the show.

BURNETT: So, Senator Dianne Feinstein, and I acknowledge the point, I think it's important for everyone to realize, this was produced by the Democratic side of the committee, but she did speak some of the other techniques used by interrogators. Let me just go through some of the things she mentioned. She talked about how they were striped naked, diapered, physically struck, and put in stress positions for long period of time, deprived of sleep in one case for up to 180 hours, as you noted, that 7 1/2 days with no sleep.

These are some of the things that she mentioned happening. You wrote that legal memo that justified many of these methods. Why did you feel they were OK?

YOO: I think many of the methods you just mentioned, and I could -- obviously, I could be wrong about this, but I think many reasonable Americans, if they were told about those methods, in the context of 9/11, the first few months after 9/11 and trying to gain information to stop what everybody thought would be another terrorist attack against an enemy that just killed 3,000 Americans, I think they would say many of those are reasonable under the circumstances and don't rise to the level of torture.

I actually think the one that come closest to torture which you didn't mention is waterboarding. If you look back at what the Justice Department and my office had to struggle with was, did waterboarding cross the line? Because we have a federal law that is taken seriously, I have to add, much more seriously it should be taken than what some U.N. official who has no jurisdiction and no government to report claims in your opening segment should be the law. We think seriously in the Justice Department the idea of prosecution.

So, we interpreted carefully the anti-torture statute which said no severe -- you cannot with specific intent to inflict severe pain and suffering.

BURNETT: Right.

YOO: I think most of the interrogation methods do not cross that standard. Waterboarding I admit is a very hard question. That one is the closest to the line.

BURNETT: All right. That one is closest to the line and you're saying your line on torture was did they cause injury. And I know you wrote about that today.

According to the report though from Senator Feinstein's committee, she says the waterboarding technique was physically harmful, inducing convulsions vomiting, Abu Zubaydah for example became completely unresponsive with bubbles rising through his open full mouth. That's what she writes in the report.

When you hear that, does that make you think, maybe I made a mistake on waterboarding?

YOO: This is how we thought about waterboarding at the time. Again, this is only to be used in the context of that moment when we are struggling to get information right after 9/11 on only the highest level of al Qaeda leaders. I believe even Senator Feinstein's report said it was used on the top three al Qaeda leaders.

And to me, the two things that swayed me were one, our military uses waterboarding to train our own soldiers, something on the order of 20,000 soldiers, CIA agents, and high-ranking officials have undergone waterboarding without any medical statement that they had suffered that kind of physical pain and suffering that the statute prohibits.

BURNETT: OK. YOO: And again, I think you have to put yourself back in the context of that time. Given that we were just attacked, given how little information we had, I think if Bush had been president, if Gore had been president, any reasonable American who've been put in that position would have chosen to use waterboarding, again, only on the very top al Qaeda leaders we thought had information about pending attacks.

BURNETT: All right. John Yoo, thank you very much.

I do want to note to our viewers, John Yoo is talking about that there were three people who underwent the waterboarding technique. Obviously, the report claims there were up to 20. So, there is a discrepancy in terms of the claim there.

CNN senior legal analyst Jeffrey Toobin joins me now.

All right. You just heard John Yoo make his case for why he did what did, and why he still stands by it.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: If you look at the villains of this sad chapter in American history, John Yoo is near the top of that list, because the one thing every torturer knew working out in the field, the water borders, the rectal hydrators, the people stringing people to the top of the cells, they all knew there were lawyers in Washington who said it was all OK, and that's what drove this process. And it is outrageous that he is still defending these appalling acts that he and his colleagues justified.

BURNETT: All right. So, let me ask you though, when he brings up the point of the context of the times, a country attacked, thousands died, the tallest buildings in the country just fell down, there was a fear it could happen again.

TOOBIN: Absolutely. And you know what --

(CROSSTALK)

BURNETT: And this president right now is killing individuals that are suspected of terrorist activity with drones, without trials, family members, children die when that happens. How is it different?

TOOBIN: It is -- well, let's put aside drones for a second.

(CROSSTALK)

BURNETT: Isn't it still happening in a different guise?

TOOBIN: You know what, this country defeated Adolf Hitler who was considerably worse than anybody in al Qaeda and more powerful without waterboarding anybody. So, you know, the idea that the only way to defend this country --

BURNETT: Interesting point.

TOOBIN: -- against very serious enemies to torture people is not borne out by history.

The FBI investigates really bad criminals around this country and around the world, and they don't waterboard people. So, the idea that this is the only way to do it is simply wrong. And it's betrayal of what lawyers are supposed to do to simply indulge every, you know, movie fantasy of people who want to try to catch bad guys.

BURNETT: All right. Thank you very much, Jeffrey Toobin.

And please let us know what you think. Obviously, two -- you know, very, very different polls on that story.

Well, next, a woman who's accused Bill Cosby of drugging and sexually assaulting her is now filing suit against the comedian. We're going to tell you exactly what for. This is going to surprise you.

And then lost at sea for 12 days, a fisherman's rescue tonight.

(BEGIN VIDEO CLIP)

FISHERMAN: Mayday, mayday, I'm in the middle of Alenuihaha Channel. Small boat in danger of sinking.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

BURNETT: Bill Cosby hit with a new lawsuit today. Tamara Green, who alleges the famed comedian drugged and sexually assaulted her more than 30 years ago, is suing Cosby, but not for sexual assault, because, you know, there is no evidence from that long ago. What can you sue him for? She's suing for defamation.

All right. Now, I recently spoke with Tamara and here is how she described what she says Cosby did to her.

(BEGIN VIDEO CLIP)

TAMARA GREEN, ACCUSES COSBY OF SEXUAL ASSAULT (via telephone): It was like hand to hand combat. I didn't know if he was going to kill me or rape me or what. I knew he had his clothes off and he was trying to get in bed with me. He sexually assaulted me and did all kinds of things.

(END VIDEO CLIP)

BURNETT: Cosby, through an attorney and a publicist says claims that the charges are false, that the assault didn't happen.

OUTFRONT tonight, Joseph Cammarata, the attorney representing Tamara Green. He also represented Paula Jones in her sexual harassment lawsuit against the former President Bill Clinton.

Great to you have with us, sir. I really appreciate.

When Tamara Green first spoke out about this incident, it was in 2005. It was an interview on the "Today" show with Matt Lauer. Cosby's attorney said in a statement at that time, I'm quoting, "Ms. Green's allegations are absolutely false. The incident she describes did not happen. The fact that she may have repeated the story to others is not corroboration."

So, explain how that is defamation.

JOSEPH CAMMARATA, ATTORNEY FOR TAMARA GREEN: Well, is it a statement that can be proven as a matter of fact to be false? In addition, that statement back in 2005 said that Mr. Cosby didn't know Tamara Green or Tamara by her maiden fame, and that the incident didn't happen in any way, shape or form.

So, when you take that type of denial, it -- by implication, calls a person a liar. It brands them publicly a liar.

And so, in a courtroom you can determine by reviewing the evidence, whether or not that statement that Tamara Green and her allegations are true or not. If they, in fact, are true, she wins her lawsuit.

BURNETT: So, we're getting back to and what I find fascinating about this and tell me if I'm interpreting what you're saying wrong. But what I'm hearing is that in order to get -- to win on your defamation lawsuit, you have to prove that he lied, in which case you have to prove the assault happened. How do you do that when it happened 30 years ago?

CAMMARATA: Well, there are ways to prove these types of cases. I can't -- the rules in the U.S. district court prohibit me from commenting on the evidence, but I can speak generally.

BURNETT: OK.

CAMMARATA: And tell you, there is testimony from the victim, there's testimony from the aggressor, there would be testimony from persons that the victim may have confided in, there may be testimony from other persons who were similarly treated by the person that is being accused of being the sexual predator.

So, there are a lot of ways to prove these types of lawsuits. As to how it would be proven in this case, I can't specifically tell you because the federal rules in Massachusetts prohibit me from doing so.

BURNETT: Well, you are the first telling me that you actually think you can prove it from that long ago. Others have said, look, I mean, on basic things, you know, there weren't rape kits, there weren't things like that, never mind that most of the women at the time say they were so humiliated they wouldn't have subjected themselves to such -- what they perceive to be indignities at the time.

What damages are you asking for?

CAMMARATA: Well, the complaint asks for damages to her -- to compensate her for her reputation, for damage to her good name and reputation, her standing within the community, and standing with her friends and relatives. And the exact amount is to be determined by a jury after listening to all of the evidence.

BURNETT: All right. Thank you so much. Appreciate your time.

CAMMARATA: Really appreciate being here. Thank you.

BURNETT: And next adrift in the Pacific for nearly two weeks. The search was abandoned. They thought he was dead and then there a miraculous rescue in Hawaii.

And Sue the T-Rex might have been the biggest, baddest dinosaur at the time, but 66 million years later there is many million dollar fight over her bones.

(COMMERCIAL BREAK)

BURNETT: A remarkable story of survival, lost at sea for 12 days. Ron Ingraham tried calling for help when his 25-foot sailboat started to sink. Then the U.S. Coast Guard tried looking for him but they gave up. They called up the search. They left for dead.

And then, the fisherman survived the ordeal in rough seas, I mean, especially this time of year, off the coast of Oahu and Hawaii.

Sara Sidner is OUTFRONT.

(BEGIN VIDEOTAPE)

SARA SIDNER, CNN CORRESPONDENT (voice-over): Rescuers thought he died at sea, but after two weeks in rough seas, fisherman Ron Ingraham is clearly alive and well enough to crack jokes.

RON INGRAHAM, RESCUED FISHERMAN: I was out of water but I hydrated on fish. I'm a fisherman, so I caught fish and that wasn't as good as the sushi bar, but that's how I hydrated.

SIDNER: A true fisherman's tale that could have ended in disaster. Thanksgiving Day, he made this call for help as his 25-foot sailboat was taking on water.

RON INGRAHAM: This is a mayday, mayday. I'm in the middle of Alenuihaha Channel. Small boat in danger of sinking.

SIDNER: He says current sucked his boat 200 miles away from where he was trying to go, in the waters off the Hawaiian island of Oahu.

RON INGRAHAM: I tried all through the night, weather came up. I couldn't make it. I was going backwards all night long.

SIDNER: After four days, the Coast Guard called off the search for the boat. They simply couldn't find it. That's when Ingraham's son, Zakary, got a call from the coast guard telling him his dad was missing.

ZAKARY INGRAHAM, RESCUED FISHERMAN'S SON: I was crushed like anybody would normally feel after they find out their dad is probably gone. SIDNER: Miraculously, after 12 days at sea, a Navy ship found the 67-

year-old and his boat after the coast guard heard a short mayday call from Ingraham and his son received, yet, another call from the coast guard.

ZAKARY INGRAHAM: They said, we found your dad. I had this image of somebody floating with a life vest around him that wasn't alive. And I says, well, OK. You know, was he with his fishing boat when you found him? They says, no, we found him and his boat. He's alive and he's well.

So, yes, it was awesome.

SIDNER: Found dehydrated and desperate for food and still, Ingraham refused to leave without his boat.

He not only uses his boat to make a living but it's also his home. So, the Coast Guard towed it back to shore. Ingraham gets his battered boat and Zakary gets his dad.

ZAKARY INGRAHAM: Best Christmas present ever.

(END VIDEOTAPE)

SIDNER: Now, Erin, get this, Zakary hadn't actually talked to his father in about 20 years. The two had lost touch. His dad didn't have e-mail. So, he was extremely worried this phone call from the coast guard would be the call he never wanted to get.

He said, this is a lesson. Make sure you stay in touch with your family because you never know when they might be gone -- Erin.

BURNETT: Wow, what a blessing and a way to learn that lesson. He is a lucky man.

And next, the battle, because there is a big one and it is over, the biggest T-Rex ever found.

(COMMERCIAL BREAK)

BURNETT: So, if you have $70,000, you want to buy a dinosaur foot, right? All right. This is a cutthroat business of dinosaurs.

Here's Kyung Lah over the battle to the biggest T-Rex ever found.

(BEGIN VIDEOTAPE)

KYUNG LAH, CNN CORRESPONDENT (voice-over): The wonder of history comes to life. In the museum, that's what you see, but behind the reconstructive fossils is a multimillion dollar industry.

At this auction in Los Angeles, dinosaur fossils fetch cold cash. A single Tyrannosaurus Rex tooth sold --

UNIDENTIFIED MALE: Forty-eight dollar.

LAH: A dinosaur foot, $75,000.

PETER LARSON, BLACK HILLS INSTITUTE: If you tallied up all the museums in Europe, all the museums in the Americas, most of that stuff was collected by people like me.

LAH: Peter Larson is talking about paleontologists or even amateurs, who have independently collected fossils and then sold them on the open market. In his lab, he reconstructs his latest fossil, an 8-ton Tyrannosaurus Rex.

LARSON: Probably 66.5 million years old, something like that. This is a big dinosaur. This is one of the biggest.

LAH: A dinosaur that's tentatively been sold already to a museum. We don't know the price, but what we do know is overall, prices for dinosaurs shifted seismically with the discovery of the largest T-Rex fossil ever found named Sue.

LARSON: It changed my entire life, my entire focus in science and changed our business, changed everything.

LAH: Larson and his Black Hills Institute team excavated the fossil in 1990. As word spread about the historic fossil find, disputes over ownership surfaced, the federal government seized Sue from Larson's lab. She was eventually sold at auction by the land owner where Sue was found.

And the Field Museum in Chicago purchased her for astonishing $8 million.

Peter Larson never saw a cent, but paid a price instead. He was sent to federal prison on customs violations unrelated to the T-Rex dinosaur.

UNIDENTIFIED MALE: The dinosaur leg bone.

LAH (on camera): Larson has no shortage of critics who contend that any auction, the sale of any fossil, is unethical, but the professional group of record for paleontologists says that they don't necessarily have a problem with Larson or other commercial collectors as long as these items end up in museums.

(voice-over): And that's the problem, says the Field Museum paleontologist Peter Makovicky. After Sue, they can't compete.

PETER MAKOVICKY, FIELD MUSEUM: There's a concern that museums and institutions like this that would hold specimens for the public good are priced out of the market and the specimens are lost to science because they go into somebody's living room.

LARSON: This little texture here.

LAH: Larson says he sells every significant find only to public institutions. But he's unapologetic about making a living.

LARSON: I don't understand some of my colleagues think it's somehow immoral to sell a fossil or somehow immoral to put something up for auction. That putting up something for auction is a way to find what its real value is.

LAH: Even revealing history comes with a price.

Kyung Lah, CNN, Hill City, South Dakota. S

(END VIDEOTAPE)

BURNETT: So, the story of Sue, "Dinosaur 13", airs tomorrow at 9:00 Eastern.

Thanks so much for joining us.

"AC360" begins now.