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ANDERSON COOPER 360 DEGREES

Political Firestorm Over Freeing Bowe Bergdahl; Controversial Deleted Tweet by Bergdahl's Father; "Time": White House Overrode Internal Objections; Dangerous Storms Forecast; Key Primary Races Ending Tonight; 25 Years Since Tiananmen Square

Aired June 3, 2014 - 21:00   ET

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


ANDERSON COOPER, AC360 HOST: Hey, good evening. Thanks for joining us.

We are following some of the especially dangerous weather in the Midwest in Great Plains right now. Forecaster's warning of a very long night ahead. Chad Meyers is in the Weather Center monitoring conditions. He's going to join us shortly.

First, though, in the special second hour of 360, the political firestorm over the deal to free Sergeant Bowe Bergdahl from five years of captivity, there's Breaking News on that.

We've learned that an early Pentagon fact finding investigation back in 2009 concluded that he left his outpost deliberately and willingly. The official who clued us in to that report says there was no definitive finding that Bergdahl deserted because that would require knowing his intent. That may become clear soon that when he's been debriefed which he hasn't so far.

Whatever the answer is, whatever the conclusion, President Obama today stood by the steps he took to bring Bergdahl home.

(BEGIN VIDEO CLIP)

BARACK OBAMA, 44TH AND CURRENT PRESIDENT OF THE UNITED STATES: Regardless of the circumstances, whatever those circumstances may turn out to be, we still get an American soldier back if he's held in captivity. Period. Full stop.

(END VIDEO CLIP)

COOPER: In the meantime back in Washington, the President's deputy of National Security Adviser calling Democratic Senator Dianne Feinstein who chairs the Senate Intelligence Committee apologizing for not giving a 30-day notice of the deal as required by law.

Unclear, she accepted his apology but crystal clear, she was not happy with the way this all unfolded.

(BEGIN VIDEO CLIP)

SEN. DIANNE FEINSTEIN, (D-CA) CHAIR, SENATE INTELLIGENCE COMMITTEE: It comes with some surprise and dismay that the transfers went ahead with no consultation, totally not following the law. And in an issue of this kind of concern to a committee that bares the oversight responsibility, I think you can see that we're very dismayed about it.

(END VIDEO CLIP)

COOPER: Our Republican lawmakers even more so, we're going to get a sense of just how politically toxic this is becoming. And David Gergen joins us. We'll as well from White House Press Secretary Jay Carney and there's more.

In addition to or perhaps compounding the political acrimony, a tweet, now deleted, that Sergeant Bergdahl's father, Bob, apparently sent to a Taliban spokesman. It reads, "I'm still working to free all Guantanamo prisoners. God will repay for the death of every Afghan child, ameen." Ameen is Amen in Arabic. The Bergdahl family declined a comment on that tweet.

Also today, more members of their sons unit weighed in. Most notably, his former team leader, Army Sergeant Evan Buetow, he tells the Lead's Jake Tapper that Bergdahl was seeking out the enemy.

(BEGIN VIDEO CLIP)

SGT. EVAN BUETOW (RET.), BERGDAHL'S FORMER TEAM LEADER: I was standing right next to the radio when they heard that there's an American in a village called Yahya Khel, which is about two miles from where we were at. And it's a village that has a very, very large presence of Taliban, that there's -- the American is in Yahya Khel, he is looking for someone who speaks English so he can talk to the Taliban. And I heard it straight from the interpreter's lips as he heard it over the radio. And at that point, it was like this is kind of snowballing out of control a little bit. There's a lot more to this story than just a soldier walking away.

(END VIDEO CLIP)

COOPER: A lot more and a lot we should add that we simply do not know at this point.

Joining us now to help fill in the gaps, Retired Army Sergeant Josh Korder who also served with Bowe Bergdahl. Josh, thanks for being with us.

As I said, you served in the same platoon as Bergdahl in Afghanistan. You say you're upset when you heard that the U.S. had secured his release. Why? Explain that.

SGT. JOSH KORDER, U.S. ARMY (RET.): I necessary wasn't upset that his release was secured. It was just more about the way it was done and the fact that there's, you know, more dangerous men out there that, you know, can basically terrorize people.

COOPER: Do you have any doubt that he was a deserter?

KORDER: There's no doubt in my mind that he deserted us. COOPER: Explain that. How do you know?

KORDER: Just the way that he was acting. The way that he was talking. The way that he, you know, sent e-mails to his family, just everything he was doing showed that it had, you know, premeditation that he had the intent of leaving the army. What his intent upon leaving the army, I guess that's something only he knows but he definitely intended to leave and, you know, in a combat zone that's desertion.

COOPER: What were the circumstances that you know that that lead to his disappearance? I mean can you take me back five years ago that evening?

KORDER: From what I understand, you know, he'd gone very close to his Afghan counterparts. There was talk -- it seemed like because at the same time he disappeared, two Afghan soldiers disappeared and it seemed like he had made a deal with them to try and get out of the military, get to one of their families, get to one of their houses and that they were going to try to help him to, you know, get away.

But it turned out that they basically turned him over to the Taliban and, you know, made some money off of it and that's how he ended up being captured.

COOPER: Do you remember when you heard that he was missing and what you immediately thought?

KORDER: I mean, I initially was approached by one of our team leaders and he said, "Guess who's missing." And my battle buddy and I immediately said Bergdahl. We didn't even have to think about who it was that was missing when we knew that someone had disappeared.

COOPER: Because he had talked about what? Going off before? Or?

KORDER: Just because of anyone in the platoon that we knew of all these people that we fought with and knew all so well, he was the only person that we believe to be capable of that.

COOPER: Were you friendly with him before the disappearance? And if so, what was he like as a person?

KORDER: He was very strange. It was very difficult to talk to him. It was very difficult to find out basically what he was thinking. I mean, I learned after his disappearance, you know, they were telling on the news that he had a girlfriend. Well, one time I asked him, you know, "Hey, Bergdahl, you got anybody that you're dating back home?" And he told me, "No, I'm not really into that kind of thing." And it just kind of took me aback and then, you know, when I find out that he did have a girlfriend, it was just kind of weird. Why would you say something like that?

COOPER: Do you notice any change in his attitude toward the war or toward the service while he was there?

KORDER: Absolutely. There are two or three major events that happened during our deployment that were very hard for all of us but he took a particular offense to a lot of things. But the thing was is that, you know, a lot of us got angry, you know. When something happens in the military, it comes from higher. It's a decision that's made above you and a lot of times we -- you kind of got to stand together and face it, you know, we're all in this together.

But he started attacking those people -- maybe inside of his head or, you know, something like that out loud. He started attacking them and I think try to justify to himself why he just didn't need to be there anymore.

COOPER: I mean there are reports that six soldiers were killed during the search for Bergdahl. There's some people who -- whose, you know, same and not to be that cut and dry but do you hold Bergdahl responsible for their deaths?

KORDER: I wouldn't necessarily say that, you know, if there was like a shooting that he pulled the trigger. But I do think that the circumstances surrounding his disappearance and him being gone certainly messed up all of the plans that the army had and set the grounds for those people to be killed because they probably wouldn't have been there. They probably have been doing all their missions. Would they have survived through the deployment? I can't say. But I can almost tell you for certainty that we wouldn't have been in those towns.

COOPER: Well, Josh, I know it's a hard thing to talk about. I appreciate you coming on and talking with us tonight. Thank you.

Let's dig deep now with Dan O'Shea, Former Navy Seal Commander and Former Coordinator at the Hostage Working Group at the U.S. Embassy in Baghdad, also Investigative Reporter David Rohde who was held captive for seven months by the Taliban before he managed to escape.

You know, David, clearly we're hearing more and more from these men who served with Sergeant Bergdahl. You say many have no idea that his fellow soldiers may have lost their lives looking for him. When you were held by the Taliban, were you in complete isolation from anything happening in the outside world? How much do you think he may know about the last five years?

DAVID ROHDE, INVESTATIVE REPORTER, REUTERS: It could be very little. I was isolated in the beginning but as time went on I was able to listen to BBC Radio Broadcast and other things.

But again, I'm a civilian and I would think I would be treated much better than Bergdahl was. There was a critical thing in that last interview though about these two Afghan soldiers. There's a possibility one of the theories was maybe that Bergdahl was tricked into leaving the base or he did just walk off that base. There may have been a mental breakdown here.

There's so many unanswered questions and, you know, the most important person to hear from is obviously Bergdahl.

COOPER: And we talked about this David last night but you believe he absolutely has a lot of questions to answer and needs to at the very least to the people he served with.

ROHDE: Absolutely. These soldiers that are on tonight and the last couple of days deserved answers, you know. Whatever Bergdahl's intent was, you know, these young men, you know, suffered a great deal but there should be due process. We should sort of hear from Bowe Bergdahl innocent to guilty is what, you know, General Dempsey today. But there should be an investigation, I agree.

Again, I said this last night, I don't think he necessarily left that base, you know, intending to harm anyone. I think maybe he didn't understand what was out there and I guarantee just based on my own time of captivity that he regrets that decision and, you know, he regretted it for everyday of the last five years and will regret it for the rest of his life.

COOPER: Dan, do you think it's conceivable that -- I mean that a soldier who's been through training, who, you know, he apparently read a lot about the conflict or read a lot about the Russians there, their experience that he would have walked off not realizing the danger that he was putting himself in, that he was theoretically putting other people in?

DAN O'SHEA, FORMER U.S. NAVY SEAL COMMANDER: Well, again, as we've said, the only person who can really answer that is Bergdahl himself. But, you know, the bottom line is when you go through training, boot camp and certainly advanced individual training before you deploy, you build bombs with the members of your platoon, in your company, and your squad that are generally inseparable. You know, you go back and any veteran who served a hundred years, I've met guys that served four years and 40 years later they're heads of industry and they recite to me that the most meaningful time of their life was when they were in an infantry squad as a young marine.

So this was the most defining experience of his life to go to combat where literally in an outpost as small as this (ph) cop or combat outpost they might have had 12 soldiers. So literally, that rewind every man to do his rotation at three-hour watch that they were on for 24/7. A critical, critical situation for him to walk up the post. That's why there's so many levels of betrayal felt by these soldiers because it's so obvious to them what his actions, you know, potentially constituted which is desertion.

COOPER: It's also an issue again because I mean he clearly sought out service in the military. I read that account by Hastings in Rolling Stone. Apparently he had sought out trying to get into the French Foreign Legion and before that he wasn't able to do and ended up going to the army. So clearly he wanted to be -- have some form of military service.

What, you know, Dan, the administration says they saw a window of opportunity in their negotiations and that they kind of -- they had to take it and they say they were also concerned about his health and his safety. It's not exactly clear what that means. We've been told he's in stable condition. You managed, I think, more than 400 kidnapping incidents in Iraq when you were there. Does that explain -- explanation ring true to you here? Did that happen that quickly in a negotiation like this?

O'SHEA: Well, listen, a hostage's life is always at risk in these environments but, you know, to say that he was, you know, we can't speculate that he had, you know, some heart condition or some disease. I mean in every single case when we've watched to analyze the videos of the hostages, these proof of life videos, we would denote, you know, that the age, you know, weight loss and a number of things to give us indications. But no, that's were used in every case why we want to rescue him the way we did because the timing of this just seems, you know, why would you negotiate if they know all this now, it's now coming out these facts which of course the government had to know that these charges of desertion are going to come up.

They had to expect this fallout and then the fact that they've released five senior Taliban commanders that before U.S. troops have pulled out of Afghanistan and NATO troops, we're going to let this guys back on the battlefield again. So it baffles me that they're saying that it was a health issue that forced them to play the hand at the time that they did.

COOPER: Dan O'Shea, it's good to have you on again and David Rohde as well. Thank you guys very much. Dan by the way has written an excellent piece for CNN.com entitled "Bergdahl still has a hard road home"

A quick reminder, make sure you set your DVR so you can watch 360 whenever you want.

Coming up next tonight and yet more Breaking News in the story just talking about how the deal to free Bergdahl happened and over whose objections.

Also, later the history of Americans taken prisoner and how we've gotten them back.

(COMMERCIAL BREAK)

COOPER: We have more Breaking News tonight, a late reporting in Time Magazine, the headline "White House overrode internal objections to Taliban prisoner released".

Joining me now on the phone is Time Magazine Senior Correspondent Massimo Calabresi. Massimo, thanks very much for being with us.

What have you learned about how it came about the decision to release these five detainees?

MASSIMO CALABRESI, SENIOR CORRESPONDENT, TIME MAGAZINE: These five have been in play for quite some time. They were rolled up early, early on and taken to Guantanamo Bay. And since then, the Taliban had been trying to get them released. Initially, there was heavy debate in the administration over whether they could be released as sort of confident building measures in early attempts for these negotiations with the Taliban.

When those discussions took place in the first term, there was very heated debate in the administration and exchange of secret and top secret intelligence about these guys. And those opposed to releasing the five in the defense department and then the intelligence community won the argument against releasing them at that time.

So when the issue came up again this time the White House basically took the whole debate in hand and overrode those earlier objections.

COOPER: So let me just highlight what you just said and this is based on your reporting and this was written in the article in Time, time.com. That early on in the Obama administration, they did a top down review of all the detainees. They looked at these five and it was determined based on rulings by people in the intelligence communities and the Pentagon that these five who've now been released were too dangerous to be released early on in the Obama administration as they had been under the Bush administration?

CALABRESI: That's right. The -- when Obama first came in, he organized a justice-led interagency review of all 240 detainees then at Guantanamo Bay. Since that review was done, another 82 have been released but those five were found at the beginning and then repeatedly throughout the Obama administration in contentious debates when they were on the table for peace deals and so forth. They were found to be too dangerous to be released.

COOPER: So the final release of them which has occurred for Bergdahl, that's a matter of the White House and state department according in your reporting what overwriting intelligence officials -- overwriting officials in the Pentagon?

CALABRESI: That's right. Now, what happens is when the possibility of getting Bergdahl reemerges in recent weeks after the Taliban reaches us to the Qatarees who have been the intermediaries in the talks all along, the administration then convenes the senior leadership of Obama's national security team including the head of the Pentagon and the head of intelligence committee, head of the intelligence committees that he was initially resistant to the idea of releasing them but was brought around. (INAUDIBLE) the head of the Pentagon had said he supports the release. So it's really the ...

So, it's really the people who had engaged in the debate before these two guys came in to this small group discussion at the end where the objections were.

COOPER: OK. Massimo Calabresi, fascinating reporting again in time.com. Massimo, thank you so much.

More now on the true politics of this whole affair with Senior Political Analyst David Gergen who joins us.

(INAUDIBLE) time.com report that the White House overrode concerns of some of the Pentagon within the Intelligence Community releasing guys who early on the Obama Administration and these men were too dangerous to release.

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: I'm not surprise that there was real tension over that issue. What is surprising is that for a long time, the view that they were too dangerous release prevailed. But in order to get Bergdhal back the administration that White House apparrently overrode that resistance. That is surprising and I think that it adds additional questions about the way the White House has treat this as a public matter since the celebratory (ph) ways treated that.

COOPER: Do you think that White House -- let's talk about that because I mean they had this rose garden ceremony. Do you think the White House would have had that rose garden ceremony with Bowe Bergdahl parents had they known about the kind of backlash or have they anticipated the kind of backlash that this has received?

GERGEN: It's pretty clear they did not anticipate this backlash. They misjudged what was going to come. But as -- I hate to go to the fundamental point on whether they should have sought Bergdahl and to get him back.

We do make a pledge to our soldiers and sailors that if -- that we will never leave you behind. We will always come and seek you out. And if you've done something wrong, we will then separate out then make subject that cumbers decision about what you've done. And I think they did the right thing in going to get him. But knowing that he deliberately walked off as their own army internal investigation was found back in 2009, knowing that there was all these resistance about releasing these five because they were too dangerous to be released.

I thought it bizarre that they would then have a White House celebration in effect about the safe return of Bergdhal. You know, one would have assume that they would have done this very quietly that in a somber way saying we have to make some tough decisions, we thought we did what we thought was right. But now we have to move on to the next issue and that is what really happened. And, you know, how should we treat him instead of saying on public television as they have now said, that he served with honor and distinction. I'm sorry?

How many soldiers can you tell that to with a straight face?

COOPER: So that (INAUDIBLE) to say that? I mean, that was a mistake?

GERGEN: I don't know. Somehow the talking points got, you know, jumbled up again. I -- it does seem to me that that it was an unfortunate mistake. I'm sure she didn't quite mean it the way it came out. But I do think that the overall -- the White House needs the sort of stop treating this like, "Wow, look what we did." and this is a very hard set of decisions that come before our Commander-in- Chief. There are not easy calls.

In a day that gone by, you know, General Patton would have ordered this man shot. But today, we do it by different standards. We do try to take these things and I think that they went through a sensible and as far as I can tell, a very honorable search for what the right answers were and I think the Pentagon, the military, and the White House came up with the right answer and that is we do need to go get them if we can.

Having done that? I just think that it would have been -- it's tasteless to then celebrate given the surrounding circumstances.

COOPER: Right. Interesting. David Gergen, we've heard that and also a lot from former service members. David, thanks very much.

Other prisoners swaps the U.S. has made over the years. This is far from the first one of course and we're going to take a look at those in that past, how they've work in the past.

Also, tonight's severe weather pounding the Midwest. Tonight, we'll get a live update from our Chad Myers.

(COMMERCIAL BREAK)

COOPER: Well, a moment ago what David Gergen said, he did not think the White House anticipated the backlash to trading five Taliban for Bowe Bergdahl. Ever since the news broke, it seems though the administration has been in a defensive crowd.

For that, I'll go to Press Secretary Jay Carney doing a lot of the defending. I spoke to him earlier tonight.

(BEGIN VIDEO CLIP)

COOPER: So, Jay, Sergeant Bergdahl was held by the Haqqani network, a group that your administration declared a foreign terrorist organization, I think it's recently in 2012. I know you are negotiating through an intermediary, but in reality can it be said that you are negotiating with terrorist?

JAY CARNEY, WHITE HOUSE PRESS SECRETARY: Anderson, Sergeant Bergdahl was held as a prisoner in an armed conflict, one that's being on for more than a dozen years. As a general principle, going back all the way to our founding, the United States military does not leave its men and women in uniform behind when they are held by the enemy in captivity.

And in this situation, as this been the case for the previous five years, we were doing everything we could and looking at every option possible to try to recover Sergeant Bergdahl. He is, as you know or was, the lone captive remaining from either the Iraq or Afghanistan war.

And you pointed out in your question accurately that we had been engaged in direct talks with the Taliban on broader issues including Sergeant Bergdahl but also exploring the possibility of Afghan-led reconciliation talks. Those broke down in 2012. In this case through a third-party, the Qatarees, we were able to negotiate his release and the transfer of these Guantanamo Bay detainees.

COOPER: I mean, I understand the imperative of not leaving anyone behind, but at the same time -- I mean can it still be said though that the United States does not negotiate with terrorist?

CARNEY: It can be, Anderson, because when you put on the uniform for the United States and you go and fight on behalf of your country in a foreign land at war and you're taken captive by the enemy, the principle that we don't leave our men and women behind doesn't have an asterisk attached to it depending on who's holding you. The principle is inviolate and that's what we pursued here. I think something that is not getting ...

COOPER: So even if it was approved like the Al Qaeda that would -- there would be no negotiations with them?

CARNEY: Well, again we're -- this was -- but that's not the case here and what I'm saying is he was a prisoner in an armed conflict and we were engaged in an effort for five years to try to recover him. As I think an admiral said on TV today, I noticed he said, you know, when one of your shipmates goes overboard, you go after, you go get him. You don't ask whether he jumped or he was pushed or he fell. You go get him first and then you find out.

(END VIDEO CLIP)

COOPER: You'll see more the interview with Jay Carney on our website AC360.com. Tonight, more now on the historical precedent for this or lack of one, now Randi Kaye goes back to the beginning.

(BEGIN VIDEO CLIP)

RANDI KAYE, CNN CORRESPONDENT: Prisoners swaps in America are as old as the country itself. Think back to the American Revolution when President George Washington exchanged enemy prisoners for Americans. This letter from the National Archives written by Washington himself lays out the terms of one such exchange.

President Madison swamped prisoners too during the war of 1812 trading the enemy for American military personnel. Abraham Lincoln also traded enemy fighters for American soldiers.

Fast forward to 1962 when Francis Gary Powers, an American You-2 pilot, was released by Russia in exchange for a convicted Soviet spy named Rudolf Abel. Powers' plane was downed in 1960 during a reconnaissance ride over Moscow. The two were exchanged in the middle of a bridge between East Germany and West Germany. Powers' family was informed just five minutes before the White House announced it.

In March 1991, at the end of the first Gulf War, Iraq accepted the terms of a cease fire. That led to an exchange of POWs, including 35 Americans which were freed in center Riyadh, as many as 20 prisoners from Allied forces were handed over too.

UNIDENTIFIED MALE: Everyone ones a hero. They look happy to be at home, happy to be in freedom.

KAYE: In 2010, a spy swap reminiscence of the Cold War, the United States convincing Russia to free four prisoners convicted as spying for the U.S., in exchange for 10 Russian agents caught spying in this country.

In Moscow, then Russian President Dmitry Medvedev signed a decree pardoning the four Russian imprisoned for alleged contact with Western intelligence agencies. The well-choreographed transfer took place on a tarmac in Vienna, Austria.

ERIC HOLDER, ATTORNEY GENERAL: The 10 people here in United States pled guilty to acting as agents of Russia without registering with our government and we essentially, orchestrated swapped.

KAYE: But what about in ongoing conflict? When a US soldier is being held by a designated terrorist organization? On that score, there does not seem to be any president.

Randi Kaye, CNN, New York.

(END VIDEO CLIP)

COOPER: And the Haqqani network is a designated terrorist organization and they're the ones who held Bowe Bergdahl.

Two views now, this latest deal on whether President Obama broke the law in not informing Congress. Joining us tonight, Military law attorney, in the Yale law school senior research scholar Eugene Fidell, also senior legal analyst Jeffrey Toobin.

Jeffrey, we talked about this last night. You absolutely think the President broke the law here by not notifying Congress, correct?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: No question, yeah. The law, it couldn't be clearer. You have to inform Congress within 30 days of a release from Guantanamo and they didn't do it.

COOPER: But the administration said that the law in this case would interfere with president's performance of functions assigned by the constitution specifically protecting American lives and American soldiers.

TOOBIN: Well, if the president felt that way, he shouldn't sign the law in the first place. You know, what he tried to do is the same thing President Bush tried to do which was finessely (ph) issue by issuing a signing statement saying, "I agree with this part of the law but I reserve these powers." That's not how the law is supposed to work and I think he is now gotten caught up in the fact that he didn't follow the law and now, he's got to apologize for it.

COOPER: Eugene, you disagree with Jeff. Do you think his power as commander in chief trumps the statue?

EUGENE FIDELL, MILITARY LAW ATTORNEY: Yes, I do. The constitution itself gives the president the responsibility of being commander in chief of the arm forces. What happened in this case is an exercise of the president's core functions as commander in chief and Congress cannot bypassing legislation, hamstring the president in this way.

And let me say, by the way, and I think Jeff knows this, that I've been quite critical on the past of administrations of both parties who have embraced the idea of the imperial presidency. I do not believe in the imperial presidency. However, I do think that there are things that are core executive functions and negotiating for the release of a member of the arm services on an act of duty is a core function and I don't think Congress can given him instructions on how to exercise that kind of power on a retailed basis.

COOPER: Why go ahead and sign the law?

FIDELL: Look, president sign all kinds of things that are presented to them and legislation that are hundreds and hundreds of pages long. It has happened repeatedly. Presidents have had to swallow deeply. Show me a president who will veto a defense appropriation. I mean, to really let's get realistic about how this system works in Washington D.C. It's unrealistic to assume that the president is going to say "I'm sorry, I'm not going to sign the defense appropriation because you've got two or three or four things that could be applied in a way that trenches on my power under the constitution." It's not realistic. At that, you cannot run the government on that basis.

COOPER: Jeff, what about that?

TOOBIN: Well, I mean, you know, I, you know, the law is the law and I think, you know, Eugene makes a very legitimate argument that this is a core presidential function but then he shouldn't have signed the law. I mean, yes, it is true that that laws are complicated and they have lots of different provisions but I think this controversy arose precisely because the president tried to sort to have this cake and eat it too, which was sign the law, but saying he didn't agree with it.

And I think the fact that he didn't inform the Congress and now he's in trouble for it shows that it was actually a pretty good law in the first place, that Congress should be informed about these things. Frankly, if he had informed Congress, they probably would've done anything about it anyway. If this president of all presidents who really staked run for president as someone who was going to restore respect to the constitution, you know, I think he had to make some tough calls and I think he made the wrong one here.

COOPER: It is interesting Eugene, I mean, when you hear candidate Obama speaking out against this very same thing.

FIDELL: Well, let me say there's a wonderful line that a period in an old English case where some judge had occasion to say, "All I can say is the matter does not appear to be now as it appears to if it appeared to me then." Senator Obama - it's a great line.

Senator Obama, I think, you know, has learned some things, the President Obama since the time he was a senator. Things look different from the Oval office and now is the time where he has some responsibilities that he's got exercised as commander in chief leading troops into battle.

COOPER: Jeff, in terms of what Congress can do, there isn't much they can do.

TOOBIN: You know, there really isn't. I mean, this is really - it is grounded in the constitution but it is really more a political matter than a legal matter. The courts have said very clearly, they don't want to get in the middle of disputes between the executive branch and the legislator branch and there's no way that Congress can sue the president. And yes, of course, you know, you could have an impeachment but this is not an issue that rises to the level of impeachment. I think everyone agrees about that.

COOPER: Jeff Toobin, Eugene Fidell, thank you so much.

Well, up next, more breaking news of your weather pounding Nebraska, other parts of Midwest. Forecaster's say it's going to be a long night ahead for everyone in this storm systems' path, we got an update. Plus, breaking news in the closest and ugliest center primary racist health today. Will the Tea Party score a victory in Mississippi? We'll be right back.

(COMMERCIAL BREAK)

COOPER: It's been quite a night for breaking news including this. Take a look, severe weather pounding the Midwest.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Oh my gosh, that is (INAUDIBLE). Oh my gosh, I'm sorry that is (INAUDIBLE). Oh my gosh.

(END VIDEO CLIP)

COOPER: Crazy. Parts of Nebraska are already seeing hale the size of baseballs, big enough to do serious damage. This goes about saying you should stay inside.

If you're there, forecasters are warning severe thunderstorms could spawn tornadoes across the state. Tornado watchers are in effect. Iowa, Missouri, also in the storm systems path.

Chad Myers joins us now with the latest. What do we know about the storms Chad?

CHAD MYERS, CNN METEOROLOGIST: Just one big storm after another Anderson. 55,000 fee tall today, that's 10 miles high in the sky.

Here is the storms moving across the state of Nebraska. We'll get a little bit closer here. Show you as they come down from the northwest, one tornado after another, one severe cell after another, and look at the big -- this is the three dimensional scope of this storm.

The hale goes all the way up to about 50,000 feet high and falls out of the sky. The most dangerous storm right now in any of the states is around Nebraska City, Nebraska. That's what it looks like, three dimensional all the way up to 55,000 feet tall.

Everything that you see red there in the storm that is all hale falling out of the cell. Now, this is still moving across from the northwest to the southeast and drifting a little bit farther to the south.

And so I'm a little bit concern. I know we talked about Omaha and south of (INAUDIBLE). But this could on the overnight hours slip all the way down to Saint Louis with hale storms. We could have wind at 80 to 90 miles per hour like we did in Omaha and that would be a very big town hit by this, maybe in the middle of the night.

So I want you to keep that know where the radio on if you have one because this hale was intense today. The winds at 80 miles per hour literally knocking some siding off the homes, knocking all the windows out of the homes, knocking tractor trailers off the road ways and absolutely smashing cars.

The town of Blair is completely smashed. The cars -- they didn't have windows in them anymore, even the big windshields that's suppose to stop all that were just completely gone, you can't even see out of the windshield, still there but it's so smashed the car is undriveable.

COOPER: I also understand there's flash flooding we are concerned about.

UNIDENTIFIED MALE: There is. Think about like a (INAUDIBLE) one storm after another. Omaha in three inches of rain with that one, another couple of inches with this one that maybe another half an inches so with this one. So one storm after another hitting the same areas, that's where the flooding is coming from.

COOPER: Incredible, see that hale.

All right Chad, thanks very much. Yeah, there's a lot more happening tonight. Susan Hendricks has at 360 Bulletin. Susan.

SUSAN HENDRICKS, CNN ANCHOR. Anderson in California, Ryan Chamberlain the man captured after a five day at the manhunt was charged with possession of an illegal device.

Authority say they found dangerous materials in his home. Chamberlain faces up to 10 years of prison if convicted.

While Australian researchers will release audio recordings, Wednesday of an underwater sound they say could be connected to the final moments of missing Malaysia Airlines flight 370. The audio is from underwater listening devices.

And it looks like more legal trouble for Donald Sterling, a former employee being battled L.A. Clippers co-owner is suing him. She claims they had a romantic relationship for six years and says Sterling sexually harassed her and made racist remarks about her children and he ex-husband.

An attorney for Donald Sterling calls the claim baseless and ridiculous. The problem seems to be (mask of her).

COOPER: All right, Susan. Thanks very much.

Up next some breaking news, we are waiting results to some of the primary races across the country today including the contentious and close GOP center primary in Mississippi. An update ahead.

(COMMERCIAL BREAK) COOPER: Polls are closed in key primary races across the country this evening. Voters casting ballots in eight states, the Republican center primary Mississippi, one of the closest and certainly the ugliest sixth term, incumbent senator Thad Cochran and State Senator Chris McDaniel were in a dead heat going into the race. McDaniel is the Tea Party choice.

Our Chief Congressional Correspondent Dana Bash joins us now from Jackson, Mississippi tonight and Chief Political Analyst Gloria Borger is in Washington.

So Dana I know we're still waiting on returns as they come in but that in and off itself is really something that a 36 year incumbent in the state of Mississippi is in jeopardy of losing the seat to a really upstart tea party backed candidate.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: It certainly is and it is neck and neck, they have good reason to be concerned.

There is about 40 percent of the vote that has come in and right now Thad Cochran., the incumbent has 49.8 percent and McDaniel has 48.6 percent. They're only about 1,100 votes apart.

That's important for two reasons. Number, because as you said, he is really Thad Cochran to fight for his life. But number two, if neither candidate gets to the 50 percent threshold, the law here in Mississippi requires a run off, so this won't be over tonight. And it is been incredibly nasty incredibly intense between this two Republicans because of thing have gone here in Mississippi but also because of the national implications of this, Anderson.

This is sort of the last gust (ph), this particularly election year for the Tea Party nation wide. They lost their attempt topple a senate Republican in Kentucky, the Republican leader, in Texas a house incumbent in Idaho. So this is really from their perspective have been the best change to get rid of somebody who has been in the senate for the four decades. They poured millions of dollars in here that's why this has been such an intense race here in the Mississippi.

COOPER: And Gloria turn out said to be a very, very high. I mean Dana said it really does focus attention on this fighting inside the Republican Party to establish and reverse the Tea Party.

GORIA BORGER, CNN CHIEF POLITICAL ANALYST: Oh yes, it does. And the stakes cannot be higher because Republicans want to take control of the senate. They need six seats to do it and they need to keep this seat in Republican hands.

They establishment believes that Thad Cochran is the guy who can do that for them because they believe that if he's the nominee that will keep, you know, the Democrats away essentially and they know that, you know, because they're assuming Cochran will win.

If it's turns out to be Chris McDaniel a Tea Party upstart, they know the Democrats are going to start pouring money into this race. And then it really, you know, while you have to assume Republicans are going to win that it's going to be more of the race then they would really want and so that's, you know, there in the establishments rooting for Thad Cochran.

COOPER: And Gloria we got to ask about the senate GOP primary in Iowa...

BORGER: Yeah.

COOPER: ... a four was race among Republicans, one candidate Joni Ernst is really was in the top very quickly, the establishment and Tea Party paring up for her.

BORGER: Yeah. You know, she is the one that both the Tea Party and the establishment had joined together. Mitt Romney and Sarah Palin, supporting the woman there, Joni Earnst, she is very interesting candidate, award veteran, rides a motorcycle, raised on a farm and get an ad about her major credential which she says is castrating pigs. So she knows how to deal with the poor in Washington.

COOPER: Quite a campaign commercial. Dana Bash, thank you Gloria Borger as well. We'll keep watching tonight.

Up next, 25 years after deadly crack down and student protesters in Tiananmen Square; it has been 25 years. We're going to take a look at some of the memorably images from that terrible day, the man who captured one of the most iconic.

(COMMERCIAL BREAK)

COOPER: Well, tomorrow marks 25 years since the crack down in Beijing Tiananmen square when troops and tanks moved in on student protesters and open fire. And official death toll was never been released but human rights groups say hundreds were killed. There are lot of memorable images from that bloody day. Jeff Widener though, he took the iconic one. Take a look.

(BEGIN VIDEO CLIP)

JEFF WIDENER: I was based in Bangkok for associated press and they gave me the assignment to go and document what was going on in Tiananmen Square. There was a very lively atmosphere, I think there was a lot of feelings of hope for the future. And it was quite interesting until it started heating up on the third of June.

The crowds were getting pretty rutty (ph) and there's a lot of pushing and (INAUDIBLE) going on, I was very scared the whole time.

On the fifth, I came into the AP office at the Diplomatic Compound and there was a message from New York photos, and it said, we don't anyone to take an unnecessary risk but if someone could place photograph that occupied in Tiananmen Square, we'd appreciate it. And this is not really what I wanted to hear. So we drew strews, I got the short strew, I got to the Beijing hotel. The sixth floor had a balcony and when you walk outside you had a pretty good view down the Chingan Avenue towards Tiananmen Square.

Right behind me up in the wall was a bullet wholes, I mean, it was a reminder that these guys could very easily pick me off.

I put a load of film in, set the automatic setting and few minutes later I heard the familiar sound of tanks coming down the street from Tiananmen Square, so I jump up, went to the balcony, looked over and I saw it lining up into a really nice, you know, column. So I started to take picture and then this guy walks out in the middle of the street with shopping bags and all I can think off is, you know, this guy is going to mess up my composition.

And I realize that the picture was too far away. And so I look back at the bed where I had the teleconverter, this would double the focal length of my lens and I gamble it, put it on. By this time he had jumped off the tank, so I'd missed pretty much all that sequence. And so the picture I had, he's making one final stance on the tank. So I click one, two, three and by the third shot I notice the shatter speed was about 30th of a second.

30th of a second with an 800 millimeter focal length is basically a non-picture, it's just going to be impossibly unsharp. Unfortunately one came out. I never dreamed at a million years that it would take on such a stature as it has, it just seems to increase almost the point of being like spiritual thing for some people. I find it amazing that after 25 year, a quarter of a century, no one knows who he is, no one knows who his relatives are and nobody knows who the tank crew is.

For me it was like you were just part of something really great, of history happening.

(END VIDEO CLIP)

COOPER: Story behind the famous photo. (INAUDIBLE) we'll see you again at 11:00 p.m. eastern for another edition of 360, I hope you join us. "CNN TONIGHT" starts now.