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ERIN BURNETT OUTFRONT

Trump: Muslims are "Phenomenal People"; Trump Threatens to Leave GOP, Run as Independent; Source: U.S. Failed to Ask Shooter About Jihadi Views; Source: U.S. Failed to Ask Shooter About Jihad Views; Scalia Under Fire for Remarks ion Affirmative Action Case. Aired 7-8:00p ET

Aired December 9, 2015 - 19:00   ET

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


[19:00:08] ERIN BURNETT, CNN ANCHOR: Next, Donald Trump in a new interview with CNN saying Muslims are his friends and thinks he could win as an Independent.

Plus, a friend of the San Bernardino shooters now admitting he planned a previous terror attack with one of them.

And Supreme Court Justice Antonin Scalia igniting a firestorm today raising the question of whether too many black students are going to elite schools. Let's go OUTFRONT.

And good evening to all, I'm Erin Burnett. OUTFRONT tonight, Donald Trump telling CNN in an interview that Muslims are quote, "phenomenal people" that he has many Muslim friends, this as his condemnation for his call for a ban on Muslims. Entering the United States goes global. But tonight, speaking to our Don Lemon, Trump refused to given an inch.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: I'm doing good for the Muslims. I was just called by one of the most important people of the Middle East. And just said to me, Donald, you have done a tremendous service to the Muslims.

(END VIDEO CLIP)

BURNETT: His latest defense comes on a day when people across the United Kingdom responded to his proposed ban, more than 300,000 signing a petition to bar his entry to their country. But Trump insists that the one group not criticizing him is voters. And tonight, once again, he floated the possibility that he would renege on a loyalty pledge to the Republican Party and run as an independent.

Don Lemon is OUTFRONT tonight. Don, you have this conversation. You were with him face to face. I know you had a lot of time with him and he did not give any ground.

DON LEMON, CNN ANCHOR: He did not give any ground. And the question everyone has been asking, if you are going to, as he said, ban or stop Muslims from coming into this country, a full ban, you know, he said with the exception of American citizens, Muslims are already American citizens, how would you do it in practicality? How would any of this work? So I asked him, how does it work? Here's what he says.

(BEGIN VIDEO CLIP)

LEMON: What about foreign diplomats or people from Muslim countries who are coming into the country?

TRUMP: Exceptions could be made. I mean, I'm not going to say you can't come into the country. And the one thing people didn't pick up, at the end of that sentence, it said, in we get our hands around it essentially, until we find out what the hell is going on, which is the expression I used. Now, that could go quickly, but you know what it is a subject that has to be discussed.

LEMON: So you said there will be exceptions, even for, like, international athletes in competitions?

TRUMP: Of course there will be. You can't keep people out like that.

LEMON: OK.

TRUMP: They will certainly be exceptions made.

LEMON: So you have been saying that until we figure out what's going on, what exactly does that mean? Figure out what? What is there to figure out?

TRUMP: Why is there such hatred and such viciousness? Why is somebody willing to fly airplanes into the World Trade Center and go after it even prior to that? They failed, although they did tremendous damage by any normal standard. And then after they failed, they went and they actually took airplanes into the World Trade Center. Where does this hatred come from? Why does it come? We have to figure it out, because we have problems. So, when you surveil the mosques, you know, I took a lot of heat for surveillance of the mosques. Well, now other people are saying we have to sur veil the mosques. I took heat for we have to study things.

Nobody's taken the heat like me. I don't care. I don't care, because what I'm saying is right. And you know what, you know what's right and everybody knows it's right. And you know who really knows it is right is the public. The public knows its right. We have to find out, where does this hatred come from? But it seems to be one group. I mean, the people that flew the planes into the World Trade Center -- and many other things, not only in this country, but in many other countries, you look at what's going on all over the world. We have to find out why and where is it coming from?

LEMON: So, how would you do it? How would -- to be practical, how would you put this policy into action? What do you do, ask someone coming over on an airplane, don't you think they would just lie and --

TRUMP: You have to go through a series of questions. You have to go through a series of -- you need paperwork, you have to find out where these people are coming from. But we can't allow radical killers into this country. We can't do it. We have enough problems. We are 19 trillion, going to be $21 trillion very soon. We have jobs that are being stolen from us by China, by Japan, by everybody. We cannot continue to allow this to happen to our country. We are not going to have a country soon. We have people pouring across the borders that we have no idea who they are. When I brought up the Mexican situation, I brought up basically illegal immigration, I'm telling you, it was a lot tougher than this. And within four weeks, you know better than I do, everybody was saying Trump is right. Then you had the killing of Kate in San Francisco. You had the killing of Jameel. You had the wonderful woman, a veteran, 66-years-old --

LEMON: You're talking about Mexican immigrants --

TRUMP: I'm talking about -- well, you know, I think the reason that so many people rank me so highly on security is because I started with a border and everybody said I was wrong. Now they all say, I'm right. Had I not brought up border security and illegal immigration at my opening remarks when I announced in this building that I'm running for president, you wouldn't even be talking about it.

(END VIDEO CLIP)

[19:05:28] BURNETT: Fascinating conversation. And doubling down and explaining himself. I mean, you know --

LEMON: He does lead the conversation though, have you noticed?

BURNETT: He does.

LEMON: He does. He is right about immigration. We talk about it. He talks about Muslims. We talk about it. And on it, he talks about African-Americans, he had the pastors, about race. He does lead the conversation.

BURNETT: He does. And you can't deny that now, you know, in terms of what this is going to do, you know, he is getting condemned from around the world. You know, but look, I have seen the Trump brand in the Middle East, it's very prominent, for example in Dubai. One billionaire, I spoke to him yesterday, he said the ban is political and thinks that, quote, "We Muslims also must fix our act" not condemning him.

LEMON: Yes.

BURNETT: Donald Trump is saying other people in Dubai and Emirates are telling him the same thing. The biggest business partner he has got there said this will not impact their golf course development.

LEMON: Yes.

BURNETT: Pretty incredible that you are not getting the condemnation from there LEMON: Yes. Well, two things on that. I asked him, I said, you

know, are you concerned, you do a lot of business in the Middle East. Some people wonder why you still do business in the Middle East --

BURNETT: Right.

LEMON: -- if you're so opposed to, you know, Muslim immigrants coming into the country temporarily. And he said, well, I'm not really concerned about that. Maybe I will take a hit. But he also says that he has Muslim friends. He says, "Well, I have Muslim friends, too. Here is what they are telling me. They are concerned as well."

Here is the rest of our conversation about that. Listen.

(BEGIN VIDEO CLIP)

LEMON: Okay, so, here what's my Muslim friends are, you say you have lots of Muslim friends and they agree with you on this immigration --

TRUMP: I have Muslim partners.

LEMON: OK. So, they say, you know, our next step is internment camps. I cannot believe this guy is proposing what he is proposing.

TRUMP: By the way, Franklin Delano Roosevelt, according to you, would be a great president, according to many people would be a great president.

LEMON: And we have said that that wasn't right.

TRUMP: I don't care if you say it wasn't right. He did it.

LEMON: Meaning the country has said it.

TRUMP: OK. So he can do it and what I'm talking about is nothing by comparison to that. So you have Roosevelt, who everybody loves, especially people that are on the opposite side of what I happen to believe. I'll tell you, meaning on the liberal side, they love, he is like their all-time hero. He can do it. Nobody says anything. And what he did was ten times worse than anything I'm talking about. I'm talking about --

LEMON: But you're talking --

TRUMP: Excuse me. No. I don't want to talk that way. I don't want to talk straight, I don't want to say, just what you just said is the problem that we have in the country. You don't wanted this, you don't wanted that. You understand the way it is. There's something out there that is evil. There's something out there that's causing problems. My people are smarter than the pundits. The people that support me, and many of people who don't support me who agree with me, I mean, they agree with me, but the amazing thing and the beautiful thing is that many Muslim friends of mine are in agreement with me.

(END VIDEO CLIP)

BURNETT: Yes.

LEMON: He is right about -- listen, he is right about something and we discussed that in the interview.

BURNETT: Yes.

LEMON: He has hit something, but he has touched a nerve somewhere. I'm on the street, I have to be honest with you, and I've heard other broadcasters will say this, people know I have interviewed him. Don, I hear people, Democrats, Republicans, all walks of life, I agree with him.

BURNETT: Yes.

LEMON: I was at a barber shop today, people were saying, I agree with him. I am surprised and again, I talked to him about this, I'm not sure if what you see in the media reflects what people of the private conversations that people have with each other.

BURNETT: I think that that's right. And he knows that. He knows that better than anybody, perhaps while he will double and triple down on it. Don Lemon, thank you so much.

And, you know, we're going to have much more of Don's interview in a couple of moments because we are going to be talking about what he specifically had to say about running as a third party candidate. And you can see the full conversation with Don and Donald Trump tonight at CNN tonight, 10 Eastern right here on CNN.

All right. So, before we go to what he had to say about independent running as an independent, I want to bring in now 2012 Republican presidential candidate, former Minnesota Governor Tim Pawlenty. Trump's campaign spokesperson Katrina Pierson. Trump's supporter former Navy SEAL Carl Higbie and our political commentator, SE Cupp.

You're both going to be with me on the third party conversation as well. SE, let me start right now with you though. Did he convinced you that this ban won't hurt him politically?

S.E. CUPP, CNN POLITICAL COMMENTATOR: Well, I don't think there's any way to know that it will or it won't. Clearly, past president is that saying something that is provably impossible to do to accomplish or patently offensive, unconstitutional, un-American, un-conservative, has not hurt him with his supporters and with his base. So, you would have to assume that this is going to make him go up in their estimation. You do have to wonder if they care at all that half of the things that he proposes he will never be able to actually accomplish. So you feel as though he is really setting them up for a big disappointment.

BURNETT: Katrina?

KATRINA PIERSON, DONALD TRUMP CAMPAIGN SPOKESWOMAN: Okay, first of all, there is past precedent for what he is talking about. Several presidents in the past not only have banned portions of immigrants from coming in, but entire section of immigration. There is precedent, Title VIII Section 1182, clearly states that. But furthermore, with regard to this constitutional fight people keep talking about, apparently, they haven't read the constitution or the legal precedent that stands behind exactly what Donald Trump is trying to do, which was outlined in Kleindienst versus Mandel in 1972. He is wanting to protect the country. Fifteen years this has been unchecked in this country and Donald Trump is not going to let it go another day.

[19:10:37] BURNETT: Tim Pawlenty, the Republican establishment does not seem to know what to do, even now. They are all ganging up on him. They still don't seem to know what to do.

TIM PAWLENTY (R), 2012 PRESIDENTIAL ELECTION: Well, look, if the Republican establishment, quote-unquote, "Wanted to defeat Donald Trump, it is not that hard." Seventy five percent or 80 percent of the party doesn't support him at the grassroots level, but you got to have a bunch of other people quit the race to aggregate that vote and get it down to just one or two others. That's not likely to happen in the near term and that's the only way people are going to stop him if they are going to be able to stop him at all. I think there is a reasonable chance at this point he's going to be the nominee.

BURNETT: All right. All stay with me. We are going to take a brief break. When we come back, we are going to be talking and hearing more of what Donald Trump had to say. We also have the breaking news on the female shooter in the San Bernardino massacre. She came to the U.S. on a fiancee visa and we are now learning tonight, breaking news, U.S. officials never asked her about her views, about Jihadist views, none of the above.

And CNN also learning the female shooter, as I said, was never questioned about those Jihadi views.

Plus, Donald Trump on a possible third party run. That part of the interview next.

(BEGIN VIDEO CLIP)

TRUMP: Well, if they don't treat me with a certain amount of decorum and respect, if they don't treat me as the front-runner, by far the front runner, if the playing field is not level, then certainly, all options are open.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:15:18] BURNETT: Back with our top story tonight, Trump one- on-one. The GOP frontrunner says, he is not afraid of other GOP candidates and party leaders slamming him for his proposal to ban Muslims because he says he will always have the possibility of running as an Independent.

(BEGIN VIDEO CLIP)

LEMON: Here is what Jeb Bush tweeted, he said, "Maybe Donald negotiated with a deal with his buddy, Hillary Clinton, continuing this path will put her in the White House." And then he linked to this tweet, the tweet of you saying that 68 percent of your supporters would support a third-party bid. Here is a pledge you signed, you saw this pledge, you know where I'm going. Are you going to break this pledge?

TRUMP: I think it's highly unlikely, unless they break the pledge to me, because it is a two-way street.

LEMON: What does that mean?

TRUMP: They said they will be honorable so far, I can't tell you if they are. But the establishment is not exactly being very good to me. But I'm leading in every poll by a lot. It looks like I'm going to win. My whole life has been about winning. I'm not, like, so many of the other people that you talk to that are essentially losers, okay? I know how to win. I intend to win. It's the best way of beating the Democrats. If I get the nomination. In the FOX poll that I'm sure you saw, I'm way ahead of Hillary, head-to-head, I'm ahead of Hillary. I will beat Hillary, the one person that Hillary doesn't want to run against, and I know a lot of people inside, because I get along with Democrats, with Republicans, with Liberals, with everybody, the one person that they don't want to run against is me. Me.

LEMON: OK. I just want this plain spoken for the viewer. What do you mean you say if they break this pledge, then you will break the pledge. What do you mean by that?

TRUMP: Well if they don't treat me with a certain amount of decorum and respect, if they don't treat me as the front-runner, by far, the front-runner, if the playing field is not level, then certainly, all options are open. But that's nothing I want to do

LEMON: How will you know that? What determines that?

TRUMP: Well, I think I know that over a period of a number of months. We will go through the primaries, we'll see what happens and I will make a determination, but I would imagine they would treat me properly because I'm leading by a lot.

LEMON: So, the pledge is you keep your word, if they keep their word?

TRUMP: Hey, Don, I want to run as a Republican.

LEMON: Okay.

(END VIDEO CLIP)

BURNETT: All right. Back to our panel. Tim Pawlenty, Katrina Pierson, Carl Higbie, S.E. Cupp, all with me. Carl, let me start with you. You just heard Donald Trump, he just said, he will run as a third-party candidate if GOP leadership does not treat him with, quote, "A certain amount of decorum and respect."

CARL HIGBIE, TRUMP SUPPORTER: Right.

BURNETT: OK. That's obviously a very subjective thing. What does it mean?

HIGBIE: Sure. I mean, he wants everyone to play by the rules, he wants everyone to be fair. The GOP right now is throwing an immense amount of resources to getting Donald out of the race. The problem here is they are so concerned about what exactly he is saying and what verbiage he is using, they are not concerned about why he is saying it. He isn't interested in the safety of the American people and that's why he is using this harsh vernacular as he is.

BURNETT: Tim, could he pull off a win if he ran as a third party candidate? He says, he thinks it would be difficult but he says, he thinks he can do it.

PAWLENTY: No, I think if he ran as a third-party candidate, he would split, even if it was just a small split in the Republican Party, that would be the margin of difference in the election with hand Hillary Clinton the victory.

BURNETT: Katrina?

PIERSON: Not at all. Look, we look at polls today, particularly with regards to National Security and terrorism, there's a large number of women, Democrats and even Liberals that support this policy for Donald Trump. What he means by playing fair is if he wins the nomination, technically, then they go behind his back and change around the delegates or change the rules even, that's not fair and that's what he is talking about. The third party talk is not new. We have been talking about this among the conservatives in the GOP since all of the conservatives were railroaded out of the last election.

BURNETT: All right. Let me ask you, SE, the former Bush Adviser Matthew Dowd, tweeted something tonight that was really smart. He said, quote, "Trump is the dominant GOP candidate right now. We should be asking others if they are going to run as independent if he wins." Doesn't Matt Dowd have a point that Donald Trump is clearly the Republican front-runner and anyone else who has a problem should be running as an independent?

CUPP: Well, he is definitely the front-runner, you can't argue with that although I think the national polls are a bit misleading but only by a plurality. And the point is, when you have 15 candidates, you know, of course -- of course one person like Donald Trump, who, by the way, I'm not buying into this new Donald Trump victimhood plea. He has got more money than any other candidate. He gets an inordinate amount of media attention when the other candidates are just fighting for it. So, no. I mean, you know, he has got 25 percent, 30 percent of republican-registered voters who answer phone calls from pollsters.

So, you know, we have got a long way to go here. And frankly, I wouldn't mind if he ran a third-party campaign. I know it means we might lose the White House, but if it means he is not running under the banner of the Republican Party or the conservative movement, which he has no loyalty to either, I would be pretty happy. We have to win elections in the future.

[19:20:18] BURNETT: So, S.E., you would be willing to have Hillary Clinton win, you would prefer that to Donald Trump?

HIGBIE: Well, the American people are sick and tired --

BURNETT: Hold on, hold on, hold on. Let me just -- S.E., can you prefer Hillary Clinton to Donald Trump?

CUPP: Yes, the damage that Donald Trump is doing to my party and the conservative movement, both of which he has shown very little affection for, you know, he has voted with Democrats, he has supported Liberal policies, nothing that he suggests even reeks of conservativism. The damage he is doing is lasting, whether you look at, you know, the response to his comments abroad or even here at home, denounced summarily by both Republicans and Democrats. The damage he is doing is lasting to our party and to the conservative movement. So, yes, I would rather sacrifice the White House for one year and not be associated with this kind of rhetoric, not be in a position I have to go on television and defend Japanese internment camps and operation wetback and religious tests and then explain to my kids, why I did that on television. I would rather, yes, I'd rather lose the White House and protect the integrity of the conservative movement and the Republican Party for years to come.

BURNETT: Tim Pawlenty, what do you say? You were a Republican presidential candidate, if Donald Trump is the candidate for your party, will you vote for him?

PAWLENTY: I would support the nominee, but I don't think he is going to be the nominee. I would say one thing that Don said earlier quick, Erin.

BURNETT: Yes.

PAWLENTY: Look, we shouldn't be screening people based on religion but Donald Trump has put his finger on something else. The country is scared. The people are afraid. They got a president that they feel is asleep at the switch on security issues. And there are some gaping holes in our visa and immigration screening system. You know, we are dealing with countries that don't have functioning governments, failed states, no centralized databases, uncooperative or mischievous intelligence service and obviously, it's a problem. And people are afraid. And so, yes, we shouldn't be grabbing the bait on his rhetoric around religious screening, but we should tackle the issue and deal with the fear. First of all, President Obama being asleep at the switch on these issues and second of all, the system is broken and so let's fix it, but let's not do it in some way that is based on religion, let's base it on risks and function.

BURNETT: Carl, you were trying to get in? Yes. Go ahead.

HIGBIE: Yes. Absolutely. I think what we saw here with S.E. and I want the viewers to see that is, what she views as damage, a lot of other people view as progress, the majority of Americans in a 12- way race are voting for Donald Trump. So, I mean, that we see as progress, us Americans, not damage.

PIERSON: Well, Erin -- and Erin, look, I would just like to add, the reason why we are having this discussion for a third party is because of exactly what S.E. said, you have Republicans in the party who literally cry because they want gay marriage and then tell everybody else they are not Republican enough. You have someone who wrote a book about media bias and Christianity and then wants to bring in all the Muslim refugees while the Christians are being persecuted and then have the audacity to tell Republicans that they are not Republicans. That's why we are having this discussion of third party.

CUPP: He's not a republican. He would be the first to tell you, he has flirted with running as a third party. He has voted for Democrats. He refused to commit himself to this party until we begged him to. He is not a Republican. And his ideas are not conservative.

PIERSON: The point is, S.E., it doesn't matter, S.E. The point is --

CUPP: It does matter. That's why we are talking about it.

PIERSON: The Republican establishment is not Republican. They are not governing like Republicans. Why have they been this whole time? That's my point. People like you go around telling everybody else who can and can't be a Republican and then expects people to go out there and support your candidates.

HIGBIE: Yes. And that's why him is because -- that's why everybody likes Donald Trump is because he has the GOP on his --

CUPP: Oh, let me point out Carl, not everyone likes Donald Trump, trust me.

HIGBIE: OK.

CUPP: His unfavorables are higher than anyone else is. You guys are in for a rude awakening when it comes time to pick a nominee and a president. Donald Trump will not be the president of the United States. I don't even think he will be the nominee. And you will be in for a rude awakening when you find out how many people actually go and vote for a guy who most of them just frankly find entertaining.

BURNETT: Final word to you, Tim Pawlenty. You don't think he will be the nominee --

PIERSON: That's the one that has been wrong for the last six months.

BURNETT: So, how long do you think it will take -- sorry, I'm sorry, Tim. How long do you think it will take before we know the nominee, if it isn't Donald Trump? Because, you know, then you look at gosh, who is it going to be?

PAWLENTY: Again, 70 percent of the party isn't supporting him currently. You can aggregate the field, another person could take Donald Trump out. But that is going to require these other candidates to look themselves and the country and the party in the mirror and decide whether continuing on is really in their best interest or in the party's best interest or in the country's best interest. I think the rubber is going to hit the road, going to be a fork in the road after New Hampshire when these candidates decide whether they will going to stay in or get out and I think that will tell you a lot.

BURNETT: Thank you all very much for a great conversation. And again, you can see all of Don's interview with Donald Trump on CNN tonight on 10 Eastern right here on CNN.

And next, the breaking news, speaking of security issues, we are learning tonight that the female shooter in the San Bernardino attacks who got into this country on a visa had an interview at the consulate, right? She was asked a lot of questions. Not a single one had anything to do with her views on religion and whether she was a radical.

[19:25:08] And CNN now is learning that this man who bought the rifles used in the shootings plotted another terror attack with Syed Farook.

(COMMERCIAL BREAK)

[19:29:14] BURNETT: Breaking news in the San Bernardino attacks. CNN just learning that the terrorist, Tashfeen Malik, the woman, was never questioned. Let me say it again, never questioned about whether she had Jihadist or radical views prior to arriving in the United States. She went through an interview at the consulate in Pakistan, a full interview. She was not asked. This coming as the FBI admits Malik and her husband, Syed Rizwan Farook had actually started discussing plans to carry out an attack over two years ago, which let me just lay this out very, very clearly, that means the plot was under way before Malik arrived in the United States. So, she was planning an attack against America, went through a consular interview, wasn't asked any tough questions, got into the United States and went ahead with that attack.

Pamela Brown is OUTFRONT. Pamela, this is shocking that she would not be asked any questions about her views that obviously, we now know she had.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Especially considering that this interview back in May 22, 2014 was done in Pakistan where she was born. We are learning from U.S. officials that during that interview with consular affairs, that she was not asked about her Jihadist views or anything like that. Now, of course, the question is, even if she was, would she have said she had those views. But still, the fact remains that that did not come up, according to sources that they were more focused on whether or not she had a legitimate relationship with Farook. And as it turns out, they believed that she did and therefore, she was able to get her visa.

Also, a State Department official saying that anything having to do with her jihadist leaning should have come up before she had that consular interview with DHS, which is supposed to run the database checks. But as officials from both agencies have said, look, there's plenty of blame to go around. John Kirby, the spokesperson for the State Department, said there is a shared responsibility.

And I think this is one reason why you're hearing the president say, look, we need to go back, review this visa program, this K-1 visa that she came in on to make sure there aren't any gaps, because we know, Erin, she was radicalized long before she came into the United States. And yet it never came up in the interview, according to sources.

BURNETT: I mean, shocking and was planning an attack against America, you know, I mean, not simply radicalized but radicalized and planning to take action. This comes, Pam, as the FBI director also said the U.S. is at its greatest threat level from terror since 9/11.

Now, why is he saying that?

BROWN: Well, bottom line, it's because of is. He says he was asked by Senator Lindsey graham if he agreed with this statement, there are more terrorist organizations with men, equipment and safe havens along with the desire to attack the American homeland than any time since 9/11. And Director Comey said, yes, I agree with that. And it's because of ISIS. ISIS has the safe haven and it has people all over the world to do its bidding.

And we saw it just recently in Paris and in San Bernardino, people who are both trained or inspired by ISIS as appears to be the couple -- the case with this couple in San Bernardino.

So, really, it's hard and challenge for law enforcement.

BURNETT: Thank you very much, Pamela. Pretty sobering reporting there.

I want to go straight to former FBI counterterrorism agent Tim Clemente, along with Seth Jones, director at the security firm RAND Corporation.

Seth, let's just start with the breaking news. She went through an interview, right? It wasn't as if she filled out forms, she was interviewed. She wasn't asked a single question about her radical views. Putting aside whether they could have figured out if she was like if she said no and the answer was yes, just putting that aside for a second. She at that time was already planning an attack against America. How is it someone coming from Pakistan would not get any kinds of questions like this?

SETH JONES, RAND CORRESPONDENT: Well, Erin, it's not clear to me, and I just testified recently on the Hill with senior DHS officials, that they are asking these questions to everyone coming from countries like Pakistan or Syria, if they are being persecuted for refugees, for some issues, they may ask about religion.

But it's my understanding, they're not asking people those kinds of questions in general. So, I think the bigger question is how many people are falling through that loophole.

BURNETT: And why aren't they asking them? I mean, you know, in light of this whole conversation out there, I mean, are they not asking them because there is a politically correct fear of asking it or not asking it because they simply say, well, if someone is a radical, the last thing they will do is say yes, I am a he a radical, I'm planning an attack?

JONES: Well, Erin, may be a couple of reasons. It maybe the last one you noted that people may actually lie about it, but there may be a range of other good reasons. There may be reasons, for example, that if they don't have information that someone may be a radical, they may not be asking it, I think this does bring up a really good question about how one interviews individuals coming in from multiple reasons, asylum, refugee status and a range of other issues.

BURNETT: Right. I mean, Tim, aren't there ways that they could ask questions that would -- that would let them get some answers, you know, not necessarily ask whether she was a radical, for example, but ask her certain questions that would indicate her knowledge of certain religious beliefs or issues, OK, this person is perhaps down a path that would lead them to be concerned?

TIM CLEMENTE, FORMER FBI PROFILER: Yes, I think, Erin, the problem is going to be we are going to have people throwing a red flag and call it a religious litmus test if they start asking these questions and I do believe that these questions are very much necessary.

It goes back longer than just this problem since 9/11, though.

BURNETT: Yes.

CLEMENTE: I worked Islamic terrorism regarding Somalia for many years and we had an issue with a lot of refugees that came in under the refugee program after the debacle of October 1993 where 118 of our most valiant soldiers were killed and a lot of those people literally fought and killed our soldiers later came into America as refugees and they lied about not being from one of the major clans that had attacked us, said they were from a minor clan and that they were being persecuted.

So, the process, you know, maybe polygraphs would be necessary.

[19:35:02] But certainly a better interview process and better investigative process is absolutely needed immediately.

BURNETT: Incredibly difficult. Maybe people asking the questions who are aware of some of those tribal distinctions in a way maybe the system is not now.

I mean, Seth, the FBI director also saying that the United States is at its greatest threat level since 9/11. That is a very significant statement to say, to harken back specifically to 9/11. This country has been at a high threat level several times since then. Is this just because of San Bernardino, do you think, or is this

additional information that he's getting? What do you think?

JONES: Well, Erin, I think the data supports this argument, there's been -- this is research that I have led, 58 percent increase in the number of jihadist groups, doubling in the number of jihadist fighters, a lot of that, frankly, is actually weak governance in key areas, where groups like the Islamic state have been able to get a foothold, Syria, Iraq, Libya, Somalia, Yemen, a range of other places, it has fed this beast, including their ability to use the Internet to bring in fighters and train them.

BURNETT: Tim, I will give you the final word. We also now are learning that they were planning an attack before she even entered the United States. That is a pretty stunning development, that we are now learning that, not just that she was radicalized, but that they were planning an attack. That would mean, right, that there's a trail of that somewhere, because he was living here and she was living there.

So, there was a communication trail that somebody could have picked up, right?

CLEMENTE: I would absolutely believe that, Erin. I would believe that their communications are now being scoured going back in time, now that they have their social media accounts, their e-mail accounts, access to those via search warrants so that information is now trickling out.

The fact that it wasn't picked up, you know, people talk in codes, people talk very secretively in communications and when you have a guy talking to his fiancee, whether he's Skyping with her, talking by e-mail, there may have been code words used, there may have been other ways that they couched their communications that didn't literally say, hey, I want do this attack on this date against this target.

And so, it's very hard to listen to those conversations without probable cause. And it has to be that level, minimum of probable cause to get a Title III or NSA wiretap through FISA courts.

BURNETT: All right. It just, of course, makes people realize than perhaps not doing that does leave open the inevitability perhaps of more attacks like this. Thank you both very much.

And OUTFRONT next, new information that Syed Farook planned another terror attack with the same man who got him the rifles, the rifles that he and his wife used to slaughter 14 people in San Bernardino. Who is this man? We are learning a lot of new things about him at this hour and we'll share that with you, next.

And a Supreme Court justice questioning whether black college students might be better off going to less elite schools. That is exactly what he said. His remarks, ahead.

(COMMERCIAL BREAK) [19:41:42] BURNETT: Breaking news: sources telling CNN tonight

that the friend who supplied two assault rifles to the killers in last week's massacre says he also helped the terrorist, Syed Rizwan Farook, plot another attack back in 2012. That friend's name is Enrique Marquez. So, just who is he?

Here's Kyung Lah with an OUTFRONT investigation.

(BEGIN VIDEOTAPE)

KYUNG LAH, CNN NATIONAL CORRESPONDENT (voice-over): Investigators focusing on Enrique Marquez and not just for buying the two high-powered AR-15 rifles that would be used in the San Bernardino massacre. U.S. officials telling CNN, Marquez told investigators about a 2012 attack that he and Farook hatched but did not carry out. They abandoned the plan, Marquez told them, because they got spooked. The FBI had just arrested four people in the area accused of trying to travel abroad to carry out violent jihad.

Marquez also telling investigators he and Farook were both on the path to radicalization as early as 2011, the same year he bought the first of two rifles for Farook. The two men's lives have been connected for years.

Syed Rizwan Farook and Marquez were first neighbors. This would grow up to become friends, then relatives by marriage.

(on camera): Did he seem like a relative?

BRITTANY DANE, NEIGHBOR: Yes, I could sense that. He was really close with them. It wasn't just, like, a friend that you would see over.

LAH (voice-over): Brittany Dane lives two doors down from the home where Farook's father, brother and sister-in-law currently live. Dane saw Marquez frequently here. The home not far from this mosque, the Islamic Society of Corona Norco.

Members of the mosque tell CNN several years ago, Marquez came here alone, saying he had converted to Islam, but he only attended a handful of times.

This is a mosque Marquez listed on his December 2014 marriage certificate as his religious institution. His wife is the sister of the woman married to Syed Rizwan Farook's brother.

But to outsider, the Marquez's marriage seemed unusual.

DANE: It wasn't like they were married or anything, like he helped them, but it wasn't like he -- I didn't really see him give much, like -- he didn't talk much to the sister.

LAH: Marquez tells authorities he didn't know about the San Bernardino massacre and is currently not charged with a crime, but his role remains crucial to investigators. JAMES B. COMEY, JR., FBI DIRECTOR: We are also working very hard

to understand whether this there was anybody else involved with assisting them, with supporting them, with equipping them and we are working very, very hard to understand, did they have other plans, either for that day or earlier?

(END VIDEOTAPE)

LAH: Now, U.S. off uses who have been talking to Marquez, who got that claim about the 2012 terror plot -- well, they are actually cautioning us also, too, that they have to verify it.

They need to make sure that's not just making it up. There is some concern that he could be saying that to try to deflect from the fact that he did purchase those two long guns that would be used in the massacre.

And, Erin, we should point out that shortly after the attack, Marquez did initially check himself into a mental health facility -- Erin.

BURNETT: All right. Kyung Lah, thank you very much.

And OUTFRONT next, outrage over remarks by Supreme Court Justice Antonin Scalia, suggesting that blacks would do better if they went to lesser colleges.

[19:45:03] Jeanne Moos with Kim Jong-un's girl band also ahead. Don't expect to hear "give peace a chance" at this concert.

(COMMERCIAL BREAK)

BURNETT: Tonight, Supreme Court Justice Antonin Scalia is under fire for comments he made during a hearing today on an affirmative action case. So, here's what happened. He was questioning a lawyer for the University of Texas. That university is trying to defend using race when it considers student admissions.

So, we are back here at the age-old affirmative action conversation. Here's what Scalia said. I want to quote him, "There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well as opposed to having them go to a less-advanced school, a slower-track school, where they do well.

One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools were they do not feel that they are being pushed ahead in classes that are too fast for them."

This causing an immediate firestorm.

OUTFRONT, our senior legal analyst, Jeffrey Toobin, and our political commentator, Marc Lamont Hill, also a professor.

So, let me start with you, Jeff. Is this fair that's receiving all the criticism he is receiving when you read that? What did you hear?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, he is citing a brief that refers to a theory known by the shorthand of mismatch, that students -- African-American students do better, they get better jobs, they graduate more often if they -- if they go to lesser schools, say the University of Texas at San Antonio, at Arlington, as opposed to the flagship campus at the University of Texas at Austin.

[19:50:10] That is a very controversial theory. A lot of people say not only is there something distasteful about that argument, they say it is simply wrong on the facts, but it is an argument that has been made in the brief.

BURNETT: And the argument comes from what, the belief -- I'm trying to understand it -- that he would say or people would say well, if you don't have the right preparation coming in, it's better to go to a school that doesn't assume you have preparation you don't have so when you graduate you can't catch up. That would be the argument?

TOOBIN: That's the argument.

BURNETT: OK.

TOOBIN: That's the argument and as I say, many people believe that that argument simply does not pan out in the real world and that African Americans who go to UT-Austin do great and this argument is simply based on a false assumption.

BURNETT: Marc, are you offended?

MARC LAMONT HILL, CNN POLITICAL COMMENTATOR: Am I offended? No, I'm rarely offended when people raise arguments in court. I think it's a wrongheaded argument, and I think it's a trouble system argument, and when people say, well, he was just citing a brief. Well, the fact that he brought the brief in and mentioned this gave it a level of credence that it otherwise would not have.

To Jeffrey's point, there are many people, myself included, who would disagree with the premise of mismatch theory based on data, and not based on my own opinion, but based on empirical data that shows how these students do.

And lastly, I think that the whole premise of the argument is that somehow these schools are doing black people a favor when they let them in and that discounts the institutional benefits that schools gain by having diverse student bodies.

BURNETT: So, what's the empirical data, Marc, that shows it's wrong?

HILL: That show that -- well, first of all, the data is mixed but what we know for sure is that students after their first year and there is an adjustment period in the first year, tend to have higher educational aspirations. In other words, they may come in wanting to be a physical therapist. They may come out saying, hey, I think I can be a doctor, if they're in a right educational environment, like a UT- Austin, as opposed to, say, a lower ranked school, or community college, which are great, just different in this instance.

They also tend to do just fine in terms of academic achievement by the end, after their first year. They do just fine.

So, again, the idea that they struggle academically or that they somehow just drop out and give up is unsupported. The things that we know actually do help students stay in school and graduate are having supports, having mentors, having black faculty -- those are things ironically that would make the students more likely to stay, not letting them in.

TOOBIN: Let's be clear here, too. Justice Scalia is long on the record as believing that affirmative action is unconstitutional.

BURNETT: Right. No --

TOOBIN: What he's clearly doing here --

BURNETT: He's trying to bolster his argument.

TOOBIN: Exactly. He's pulling out what he says is a factual argument in support of a position that he's had for decades. So, you know, that's the subtext here that's important to know.

BURNETT: Jeff, you're pointing out no way empirically to actually know, right, because you can't compare what someone is going to do at UT-Austin versus a lesser school because you don't know if one has more great inflation than another.

How do you determine who comes out, quote/unquote, "more successful", black student versus another?

TOOBIN: Exactly. And what it means to be successful and how long after you measure it and do you measure sciences or humanities, it gets very complicated in the measurements and as Marc I think points out that the only, how students -- what students do in terms of grades is not the only measure of the success of affirmative action, that affirmative action has benefits both to the students who get, who are the beneficiaries by the campus as a whole.

BURNETT: All right. Thanks very much to both of you. That topic no doubt getting a lot of conversation over the next couple of days.

OUTFRONT next, the girl hand picked by Kim Jong-un.

(COMMERCIAL BREAK)

[19:58:04] BURNETT: And now, the new hot girl group with a message, it just happens to be Kim Jong-un's message.

Here's Jeanne Moos.

(BEGIN VIDEOTAPE)

JEANNE MOOS, CNN CORRESPONDENT: Most fans have a leader, this girl band has a great leader, North Korea's Kim Jong-un, he is said to handpick the members of Moranbong and he attends their concerts.

Three, two, one, lift-off.

To honor an actual missile launch, the band played in front of a replay igniting the audience as the missile struck North America.

(CHEERS)

MOOS: But then, when the cheering died down, they launched again. Well, now an attempted girl band diplomacy has been launched. The brand dressed in North Korean army uniforms headed to China to perform in hopes of improving relations.

Officials gave them a send off at the train station.

Could the great leader himself eventually follow?

ADAM CATHCART, NORTH KOREA ANALYST AND MUSICIAN: You could argue this visit is kind of greasing the wheels for Kim Jong-un to visit ultimately to China.

MOOS: The Spice Girls they ain't.

Though they occasionally perform Western songs like "Rocky", they are highly trained musicians.

Now, if Justin Bieber falls out of favor, at least he doesn't have to worry about being purged.

But when the band disappeared for about six months, people worried the 20 or so members eventually resurfaced but without the biggest star.

Maybe she's just taking a break, but --

CATHCART: That's the thing about North Korea, they can make the most famous, the most honored, the most well-publicized musician in ensemble simply disappear and never be spoken of again.

MOOS: Their dancing may be more Lawrence Welk than it is Beyonce.

But there is a still a blast off.

Jeanne Moos, CNN, New York.

(END VIDEOTAPE)

BURNETT: Great story. But I got to say, I now just want to know what happened to that lead singer.

All right. Thank you all for joining us.

"AC360" starts now.