updated 1/18/2007 11:40:33 AM ET 2007-01-18T16:40:33

Guests: Howard Fineman, Craig Crawford, Jonathan Turley, Tom O‘Neill

KEITH OLBERMANN, HOST:  Which of these stories will you be talking about tomorrow?

And here come the bills.  A bipartisan nonbinding resolution opposed to the troop escalation.  Senator Hagel said it was not an attempt to beat the president up.  Wonder if the president will see it that way.

(BEGIN VIDEO CLIP)

SEN. CHUCK HAGEL ®, NEBRASKA:  I will do everything I can to stop the president‘s policy as he outlined it on Wednesday night.

(END VIDEO CLIP)

OLBERMANN:  And from Senator Clinton, a troop limit plus benchmarks that could trigger a reauthorization vote.

(BEGIN VIDEO CLIP)

SEN. HILLARY RODHAM CLINTON (D), NEW YORK:  It will cap the number of troops in Iraq at the levels they existed on January 1.

(END VIDEO CLIP)

OLBERMANN:  Speaking of the senator and votes, is the whole country ready for a woman president?  Is the whole country ready for a black president?  A new analysis of the political map tonight says the whole country doesn‘t have to be ready.

Has the current president been targeting United States‘ attorneys, squeezing them out because they prosecuted politicians, then changing the law so the attorney general can appoint replacements without anybody confirming them?

The warrantless wiretaps.  The president drops his sole control of domestic spying.  All cases will now be referred to the special court, to which all the cases were supposed to be referred in the first place.

The girls in this videotape also headed to court.  Beating up another teenager was an obvious bad idea.  Videotaping themselves beating up another teenager was a really bad idea.

And James Brown, day 23.  He still has yet to be buried.  Now they want to wait till they can build him a Graceland-style mausoleum.  Well, we‘ve all heard of thinking outside, but this is ridiculous.

All that and more, now on COUNTDOWN.

Good evening.

A head of state who refuses to act in accordance with the wishes of elected lawmakers, a head of state who ignores the message conveyed by the electorate in the most recent vote.  No wonder Senator Chuck Hagel of Nebraska felt the need today to remind President Bush and the nation that, quote, “This is not a monarchy.”

And another reminder to that president, the senator in question is a Republican.

Our fifth story on the COUNTDOWN, Senator Hagel joining Democratic Senators Biden and Levin to introduce a bipartisan resolution that goes against the president‘s plan to send thousands of more troops to Iraq, as yet another high-ranking general warns that plan is just as likely to fail as to succeed, the Army chief of staff, General Pete Schoomaker, saddling Mr. Bush‘s new way forward with the soft bigotry of low expectations, telling a key House panel that the plan stands only a 50-50 chance of success, 50-50, the general due to retire as soon as his replacement, General George Casey, is confirmed, elsewhere on the Hill, a powerful trio of senators throwing down the proverbial gauntlet, at least verbally, Senators Hagel, Biden, and Levin planning to introduce a resolution that would not require the president to change course in Iraq, its sponsors, though, insisting it will still have an impact, Senator Hagel chafing at any suggestion that he has jumped aboard the Democrats‘ bandwagon.

(BEGIN VIDEO CLIPS)

HAGEL:  This is not a Democrat issue that somehow they‘ve gotten a Republican to come over.  This is a bipartisan, a genuine bipartisan effort.  This is one that the three of us worked on.  I had as much input and wrote as much of this as my Democratic colleagues.

I will do everything I can to stop the president‘s policy as he outlined it on Wednesday night.  I think it is dangerously irresponsible.

SEN. JOSEPH BIDEN (D), DELAWARE:  What can we do immediately to impact on the prospect that we don‘t continue to increase the number of troops in Iraq?  What can you do immediately to impact upon the prospects that there will not be further support for this policy, where the president ignored the advice of every major voice, every major voice in the government, outside the government, military personnel in the government, military personnel outside the government, former secretaries of state, former secretaries of defense, and leading foreign policy scholars?  He has to listen.

(END VIDEO CLIPS)

OLBERMANN:  By sunset, the Republican Olympia Snowe of Maine announcing she will support and join the resolution, immediately following the Hagel-Biden newser, at the very same podium, Democrats Hillary Clinton and Evan Bayh wrapping up a four-day trip to Iraq and Afghanistan, Senator Clinton, who later signed on as another sponsor of the Hagel-Biden bill, wondering why the Bush administration is focusing on the civil war in one theater at the expense of the Taliban resurgence on the other front.

(BEGIN VIDEO CLIP)

CLINTON:  It would be a great irony if the administration‘s emphasis on escalating our presence in Iraq caused it to ignore the threat facing Afghanistan, where those responsible for planning the September 11 attacks are still our enemies.

The president‘s team is pursuing a failed strategy in Iraq as it edges closer to collapse.  And Afghanistan needs more of our concerted effort and attention.

(END VIDEO CLIP)

OLBERMANN:  Iraqi Prime Minister al-Maliki having failed last week to convince Senator Clinton of his commitment to secure his own country, the senator saying today it is time for the Iraqi government to face actual consequences for its failures.

(BEGIN VIDEO CLIP)

CLINTON:  Real-world consequences, where we could demonstrate your failure to do X, Y, Z leads to these consequences.  And that‘s why I am arguing that, in the first instance, we link the consequences to funding for Iraqi security forces, including the private contractors, because I think nothing like that, short of that, will concentrate the mind and attention of the Iraqi leadership.

(END VIDEO CLIP)

OLBERMANN:  Concentrate the mind wonderfully.

In addition to the Clinton bill, the Hagel-Biden-Levin resolution, and the Dodd bill, we should also expect an Obama bill, the Illinois Democrat, who is maybe definitely entering the race for president, saying he not only supports capping the number of U.S. troops in Iraq, but also phased redeployment, intending to introduce legislation calling for that, meanwhile, at the other end of Pennsylvania Avenue, Mr. Bush, you remember him, today inviting skeptical Republicans to the White House in an apparent effort to educate them about his plan, the president‘s press secretary making clear this afternoon that the goal of the exercise was to change the lawmakers‘ way of thinking on the subject, definitely not the other way around.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  You said earlier that the president is going to continue to meet with members of Congress.  So if that‘s the framework, and one chamber or both passes a resolution saying, We‘ve heard the president‘s plan, we don‘t support it, and you‘re considering the views of Congress, wouldn‘t that then somehow affect the decision making?

TONY SNOW, WHITE HOUSE PRESS SECRETARY:  Oh, no, (INAUDIBLE), no, this, you understand, members of Congress do not—it, it, it—at this point, the president has obligations as the commander in chief.  And he will go ahead and execute them.

OLBERMANN:  Let‘s call in our own Howard Fineman, senior Washington correspondent for “Newsweek” magazine.

Howard, good evening.

HOWARD FINEMAN, SENIOR WASHINGTON CORRESPONDENT, “NEWSWEEK” MAGAZINE: 

Good evening, Keith.

OLBERMANN:  Are Senators Biden, Levin, and Hagel correct in saying that their nonbinding resolution will still have an impact, though it does not bind?  How important is symbolism when it comes to this president?

FINEMAN:  Not much at all.  I think he‘s ignored the advice of Congress even when it was given behind closed doors without any of the ruffles and flourishes.  He‘s ignored it when people have taken to the floor.  He‘s ignored, in some respects, one could argue, and a lot of Democrats are, the results of the 2006 midterm elections, which were run heavily, not exclusively, but heavily on the question of the wisdom of the war in Iraq.

So I don‘t think this binding resolution has much to do with affecting George Bush‘s mind, as it does with the hope that some Democrats think they‘re affecting Democratic voters‘ minds, i.e., presidential primary politics.

OLBERMANN:  And to that point, is the real benefit here, the real immediate reaction, getting lawmakers themselves to declare one way or the other whether they‘re for or against the escalation?  Will a vote against a resolution now make it harder for a Republican to vote to fund an escalation later?

FINEMAN:  I think it could be.  I think that‘s part of it.  I think the Democrat strategy is to bring aboard as many Republicans as possible.  Chuck Hagel can say, you know, he‘s leading the band.  He isn‘t leading the band.  The Democrats run the Senate now, they run the House now.  And the Democrats are trying to peel away Republicans for two reasons, first of all, to give themselves cover.

And secondly, because this is the classic wedge issue, Keith.  Remember that old term “wedge issue”?  What that‘s about is dividing your opposition.  And the Democrats are setting about trying to divide the Republican opposition here, for their own uses politically in the future.

OLBERMANN:  And obviously, there‘s a third element to that.  And also, it brings back a familiar term, now turned on its head.  The Republican Mitch McConnell is threatening to filibuster this resolution.  Suddenly, we have the prospect that hasn‘t been considered in a while, the filibuster in the Senate, of course, now, Republicans doing the filibustering.  Is he going to be successful about that?  What is the status of the (INAUDIBLE)?

FINEMAN:  Well, he‘s a very cold-eyed vote counter.  I know him well.  And I interviewed him the other week on his first day in the minority.  He said, You know, Howard, I can lose eight votes.  They‘ve got to pick up nine.  I can lose eight.  And, of course, the math of the filibuster is, the people trying to shut it off have to get 60 votes.  If he can keep 41 out of his 49, then he can debate endlessly and kill that resolution.

And I think McConnell would have a chance of doing it, because even though there are a lot of Republicans up in the Senate for reelection in ‘08, or especially because they are, they don‘t necessarily want to burn all their bridges, even with this unpopular president right now.  They don‘t necessarily want to undercut him now, because that doesn‘t necessarily help them long term as they look toward 2008.

So he‘ll get a few, (INAUDIBLE), the Democrats will.  They‘ll get McConnell—no, excuse me, they‘ll get Hagel, they‘ll probably get Snowe.  I‘m not totally sure they‘ll get Susan Collins of Maine, not sure they‘ll get Voinovich of Ohio.  It‘s going to be hand-to-hand combat there, and I‘m not sure McConnell‘s going to lose.  And in any case, he‘s going to threaten until he doesn‘t—he‘s sure he doesn‘t have the votes.

OLBERMANN:  So let‘s do the postgame show on this.  We have Biden and Levin with a symbolic gesture that might be filibustered, followed by Clinton coming back saying, We need a cap, actually proposing, you know, throw it back to January 1 levels, followed by Obama endorsing the Clinton plan, and then saying, No, and we also need a motion to redeploy.

What did this do politically?  Did it, did this day erase the idea that Democrats have not offered alternatives to Mr. Bush‘s plans in Iraq?  Or did it erase it and replace it with the idea that they‘ve offered too many different alternatives?

FINEMAN:  Well, it‘s a little bit like the old game of whose hand is at the top of the baseball bat, you know, when you‘re picking sides, you know, in a baseball game.  But the other part of this is, the antiwar constituency is key here.  They‘re going to be crucial in the Democratic presidential primaries.  They‘re not happy.  People from MoveOn.org, Win Without War, those organizations that are big on the Net and big at the grassroots, want a funding cutoff.  They‘re not going to be happy until they get one.

But the fact is, if you look at the polls, the majority of the American people do not support a funding cutoff, especially if they have the slightest worry that it affects the existing troops.

So that‘s the tension that people like Hillary Clinton, Barack Obama, and Joe Biden are caught in as they try to move to the left on the war without taking themselves out of the mainstream of the country.

OLBERMANN:  And, of course, Nancy Pelosi‘s now got to rethink everybody in the House, based on what they may or may not do in the Senate.

Howard Fineman...

FINEMAN:  Yes, they‘re moving to the left.

OLBERMANN:  (INAUDIBLE)...

FINEMAN:  They definitely are.

OLBERMANN:  Howard Fineman of “Newsweek” and MSNBC.  As always, great thanks for your time.  And I‘m sorry I stepped on the middle of your farewell.

FINEMAN:  That‘s OK.  Thanks, Keith.

OLBERMANN:  Will America have its first female president, or first black president, on January 20, 2009?  Some question whether the entire country is ready.  But when Craig Crawford looks at the math, he concludes the entire country does not have to be ready for it to become a reality anyway.

And remember how the president said if he had to go to a court every time he wants some domestic eavesdropping approved, terrorists would be happy and helped out?  Today he has decided he has to go to a court every time he wants some domestic eavesdropping approved.

You are watching COUNTDOWN on MSNBC.

(COMMERCIAL BREAK)

OLBERMANN:  The calendar may say it‘s 2007, and the early front-runners for the Democratic presidential nomination may be a woman and an African-American man, but this is still a country where yesterday, a state legislator in Virginia could suggest that blacks, quote, “should get over slavery,” and some kind of formal apology to them made as much sense to him as forcing, quote, “the Jews to apologize for killing Christ,” unquote.

Our fourth story on the COUNTDOWN, as the anticipated plans of Senators Clinton and Obama suggest, we‘ve come a long way.  But is it far enough that neither Mr. Obama‘s color nor Mrs. Clinton‘s gender would, by themselves keep either or both of them from being elected?

Our colleague Craig Crawford has done the first political calculus and joins us in a moment.

When the female senator who might run for president was asked today about the black senator who might run for president, the issue at hand was neither gender nor color but experience, polling consistently showing the two of them running stronger than candidates who have actually declared their intentions, have served in government for considerably longer, and are, to a man, white men.

As promised, we‘re joined now by Craig Crawford of “Congressional Quarterly,” and, of course, of MSNBC.

Good evening, Craig.

CRAIG CRAWFORD, “CONGRESSIONAL QUARTERLY”:  Likely neither one of them needs Virginia, probably, in a presidential election.

OLBERMANN:  Or at least not that guy.

CRAWFORD:  Not that guy, right.

OLBERMANN:  So your column, “1600,” today addresses not the black-white element here, nor the female-male element here, but the red-blue element here.  To whatever degree feasible in a short period of time, explain this, and please share your math.

CRAWFORD:  The duck should drop at the point you said “calculus.”  That‘s the, yes, that is the key word here.  And presidential campaigns are not basic arithmetic, as I like to say.  People don‘t elect presidents, states do.

And you don‘t even have to win most of the states.  And if you look at the states Democrats have won in the last two elections, and ask, OK, which of these would Clinton or Obama lose because of their race or gender, I don‘t see any.  I think Pennsylvania, of the major states, might be a close call, simply because Democrats have had such thin margins there.

But the truth is, the question isn‘t, is America ready, it‘s whether 21 states are ready.  And I think the answer to that is, most likely, yes.

OLBERMANN:  When the question of inexperience is brought up, that phrase is used in either of their cases, is this just a front for qualms about race or gender?  I mean, by inauguration day 2009, each of these senators will have held national elected office longer than four of the last five presidents had combined before they were elected president.

I mean, national experience wasn‘t an issue for Carter, Reagan, Bill Clinton, Bush 43.  Is it the code word now regarding, you know, Oh she‘s a woman, Oh, he‘s not a white guy?  Is that what we‘re talking about now?

CRAWFORD:  I think that‘s a possible side effect of that discussion. 

I‘ve never been a big believer in the experience bar to elective office.  As you say, if you look at history, it‘s hard to believe in that.  I‘ve always thought it was more of a personality contest.  Presidential campaigns are not much different than student council elections in that respect.

And that is where Obama has a real leg up.  He‘s showing a lot of personality and charisma on the road.  Hillary‘s got a ways to go.  I think she‘s got it in her, Keith, but we haven‘t seen it yet.  If she can show some personality, that would trump the worries about experience.

OLBERMANN:  Yes, I, let me tell you sometime about how I lost secretary-treasurer in high school.  I mean, who loses secretary-treasurer?

Anyway, could the irony in this be that the Democratic base during the primaries decides that race and gender are still too risky in their impact on electability?  In other words, that we‘re not looking at the calculus, and still says, Well, we got a—we‘ve got to hand this nomination to a white male who can appeal to the red states as if, you know, again, once again, a presidential election has to be unanimous, which seems to have been a Democratic flaw the last two elections?

CRAWFORD:  I think electability will end up being more of an issue to these primary voters in the Democratic Party more so than experience.  And also, the universe of voters in these early primary states, it‘s so small, tend to be activists.  People are pretty—are politically attuned and more savvy about thinking about looking ahead to the electoral college and which candidate could win.

And I think both Clinton and Obama, first and foremost, are going to have to convince those voters that they wouldn‘t walk the plank in November, because Democrats are just plain tired of doing that in the last few presidential elections.

OLBERMANN:  Not walking a plank, but a tightrope.  How high a tightrope is it for John Edwards, or for some Republican opponent facing Obama or Clinton or both, to even suggest that a voter should not support them because of gender or race?

CRAWFORD:  Well, look at...

OLBERMANN:  Is that the, the, the, the sort of self-destructive element that we might see in ‘08?

CRAWFORD:  Well, you got to look at the other side of the coin on race with John Edwards.  I mean, after all, it looks like he‘s going to be at least—at this point, anyway, out of the starting gate, the only credible white male candidate in the race.  So by that fact alone, you can‘t count him out, given the history of it being a white male-only club for both nominations, and election to the White House.

And that is something that I‘m already hearing the Edwards folks starting to argue.  They‘re saying Clinton and Obama are 19-state candidates, and he‘s a 20-25-state candidate, that he could win that many.  Of course, the knock against him is, as running mate in 2004 (ph), he couldn‘t carry his own state of North Carolina.

OLBERMANN:  Yes, it still seems to me that topic is juggling chainsaws for the inexperienced.

Craig Crawford of MSNBC and “Congressional Quarterly.”  As always, sir, thanks for doing the math.

CRAWFORD:  Juggling chainsaws on a tightrope (INAUDIBLE).

OLBERMANN:  Exactly.  Well, we‘re heavy on the analogies tonight, I‘m sorry.

CRAWFORD:   Oh, boy.

OLBERMANN:  From future campaign fights to schoolyard brawls, the teenage love triangle that turns into a fight, intentionally videotaped, posted on Web.  Not a good idea if you don‘t want to be arrested.

And more celebrity baby news.  Friends of Britney Spears think she‘s pregnant again.

Breaking Lindsay Lohan news as well.  Look out, she‘s breaking.

All ahead on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  Turn to any field, and you can find a great birthday for January 17.  Benjamin Franklin, Andy Kauffman, James Earl Jones, Vidal Sassoon, Jim Carey, Jacques Plante, and the only man I met who even appeared to be able to communicate telepathically, Muhammad Ali.  Oh, and Maury Povich.

Let‘s play Oddball.

He‘s related to one of the producers.

We begin on the Internets with another one of the things the kids are calling virus (INAUDIBLE) -- no, I‘m sorry, viral video.  This one‘s supposedly from the surveillance camera at a European petrol station.  What fine quality video it is from that gas station security cam.  Must be a really good --  Wait a minute.  Is this a fake, do you think?  Is it real?  Does it even matter just a little bit?  Not, no, not to me, it doesn‘t.

Whoopsie.  See, that‘s comedy gold, right there.  Two hundred thousand YouTubers can‘t be wrong.  (INAUDIBLE).

To Shreveport, where Theresa the chimp has just given birth to a beautiful little baby girl.  Not the woman in the front, (INAUDIBLE). 

Never mind.  Handlers of Chimp Haven, though, are not celebrating.  It‘s

not just because Theresa is a lousy mother—if Britney Spears can do it -

it‘s because the male chimps, all of them at that zoo, have had vasectomies.  Uh-oh.

Officials say they‘ll be performing paternity tests on little Baby Tracey Monkey to find out who the father is.  The results, of course, to be announced by Maury Povich.  Then either one monkey is headed back into the operating room, or that‘s it for that janitor who cleans the cages at night.

Also here is the Bush White House, declaring war against prosecutors who go after politicians.  And what about the president‘s about-face on domestic eavesdropping?  Jonathan Turley joins us.

And James Brown.  More than three weeks after he died, why is he still cooling his heels, literally, in a chilled room in his own estate?  Details ahead.

But first, time for COUNTDOWN‘s top three newsmakers of this day.

Number three, Maria McCarthy of Siddon (ph), in England.  She‘s just gotten her driver‘s license after a slight delay of 23 years.  She kept failing the road test.  She says she took about 250 driver‘s ed lessons.  So she‘s now written a book to help others who have the same problem.  And please, rule number one, remember not to read the book while you are driving.

Number two, Judy the chimpanzee at the Little Rock Zoo.  She escaped from her handlers yesterday and did what liberated chimps tend to do.  She raided the refrigerator.  And she did something that gave her zookeepers pause.  She picked up a sponge, wrung it out, and scrubbed the refrigerator, then ran into a bathroom and cleaned the toilet with the brush.

And number one, Larry King of CNN.  Ohhh.  Asked by “The Chicago Sun Times” if Fox News Channel is actually a news channel, he answered, “They‘re a Republican brand.  They‘re an extension of the Republican Party, with some exceptions.  But I don‘t begrudge them that.  They‘ve been nice to me.  They‘ve said some very nice things about me.  Not O‘Reilly, but I don‘t watch him.”

So Larry, my dear friend, when the Bill Orally Fickle Finger of Hate is shortly pointed at you, I‘ve got your back.

(COMMERCIAL BREAK)

OLBERMANN:  Since November much of the media focus has been on the clash between the White House and the new Democratic Congress.  But in our third story on the COUNTDOWN, one attack and one retreat tonight in President Bush‘s ongoing war with the nation‘s judiciary. 

The administration appears to be purging at least seven U.S. attorneys with virtually no public explanation.  California Senator Diane Feinstein suggesting one of them Carol Lamb, had subpoenas out for some members of Congress, after already having taken down Duke Cunningham.  Feinstein also raising concerns about how Lamb and other prosecutors will be replaced.  A tiny provision, slipped into last year‘s version of the Patriot Act reauthorization, lets Attorney General Gonzalez appoint interim replacements for indefinite periods. 

Prior to last year, interim prosecutors were appointed by federal courts.  Gonzales claims that the judges tended to appoint their friends.  Meanwhile, one of his appointments turns out to be a 37-year-old whose resume reportedly includes helping the RNC dig up dirt on Democrats.  Mr.  Gonzalez will testify about all of this tomorrow and possibly also about another slight at the judiciary branch, talking about what he and the president look for in judicial nominees. 

(BEGIN VIDEO CLIP)

ALBERTO GONZALES, ATTORNEY GENERAL:  We want to determine whether he understands the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments.  That, for example, a judge will never be in the best position to know what is in the national security interest of our country. 

(END VIDEO CLIP)

OLBERMANN:  That statement followed later by Gonzalez and the president backing down to a judge who said their warrantless wiretapping program was unconstitutional.  Mr. Gonzales announcing that the program is now being run under the oversight of the Foreign Intelligence Surveillance Court, which is precisely what the president insisted could not be done without endangering American lives.  That is, back before Democrats in Congress won the subpoena power necessary to find out which officials might be violating the constitution. 

If it‘s all making your head spin, imagine what it‘s doing to our favorite constitutional scholar, Professor Jonathan Turley of George Washington University.  Jon, thanks again for your help tonight. 

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY:  Thanks Keith. 

OLBERMANN:  Let‘s start with the prosecutor.  The purge itself seems frightening enough.  But flesh out Senator Feinstein‘s concerns about the replacement mechanism. 

TURLEY:  Well, you know, the system that we used for a very long time was that a federal judge would pick an interim replacement, but that the ultimate U.S. attorney, the one that would take the position permanently, would go through the Senate confirmation process.  What happened in the 109th, when Congress was jettisoning virtually any role in government, is that they gave to the president the right to replace any sitting U.S.  attorney indefinitely. 

That circumvents the confirmation process.  So they really could appoint virtually anyone.  They could appoint a hack.  They could appoint a moron.  They could appoint, you know, someone like Brandies, but we would never know whether they‘re a Brandies or whether they‘re a dolt, because they won‘t go through confirmation. 

OLBERMANN:  I‘ll vote for moron hack.  The attorney general has this paper trail of hostility towards judiciary, but the remarks about judges and national security—any idea what the target is there?  Is he trying to demote judges below the other two branches?  Or is this more subtle than that?  Is he trying to demote issues of constitutionality, about which judges are supreme, below the issues of national security? 

TURLEY:  Well, you know, Gonzalez has always acted more general than attorney in his position.  He seems just inherently hostile to the rule of law.  This administration for a long time said the problem was with these defendants.  They shouldn‘t be allowed in court.  And then the problem became the attorneys.  And they prevented attorneys from meeting them.  Then the problem became habeas corpus.  And now the problem is the judges. 

What‘s exactly left?  I mean, everything is the problem, because they‘re acting outside the rule of law.  And so, they‘re really hearing whistles down the track here, one coming from Congress, one coming from the courts, and both saying the same thing, that this president has been routinely and flagrantly violating the constitution that he took an oath to uphold. 

OLBERMANN:  All right, so that leads us nicely into the warrantless wiretapping decision.  The White House said that the court has been upgraded.  It operates quickly now.  And so they can go to that?  Is that the reason they reversed gears on it, or is the administration showing signs of nervousness about which of its members would get the first subpoena?

TURLEY:  I think it‘s the latter.  The fact is that Gonzalez went to all these hearings and said, despite the overwhelming opinion of law professors, that their NSA domestic surveillance program was clearly constitutional.  But what the public didn‘t see was that every time that question went before a real judge, the administration did everything they could to take the case away or keep the judge from ruling, because they knew that that was all ridiculous, that they never did have the authority.  And so now they‘re doing what they should have done, but they‘re gaming the system. 

They keep on fighting this, pretending they have legal precedent on their side, and they pull out.  They did that with Jose Padilla.  You know, they insisted that they had every right to hold him, but when a judge finally got around to looking at what they were doing to Padilla, they just withdrew that case and charged him with something else.  It‘s gaming the system.  I‘ve had clients, petty criminals, that did that.  They just gamed the system until the very point where they‘ll be held responsible, and then they change course. 

OLBERMANN:  And lastly, the update on this story that you and I we were talking about on Monday, Kelly Stimson, the Pentagon official who was talking about the prospect of a boycott of law firms that were to defend the detainees at Guantanamo, apologized today, wrote a letter to the “Washington Post” saying he was sorry.  Is that enough to put the toxic toothpaste back into the toxic toothpaste tube or is it impossible to un-hint a boycott? 

TURLEY:  Well, first of all, it wasn‘t a very good apology, but the message had already been delivered.  He could apologize, but the message was already to those executives who were in favor of the administration, that they should start to put pressure on these law firms.  And you‘ll notice that when this guy was giving this non-apology apology, Gonzalez, at the same time, was pointing to him positively, and saying that he‘s complaining about all of these darn appeals and objections and how it‘s delaying us, and pretty much supporting him implicitly. 

The only solution to someone like Stimson is to fire him.  I can‘t imagine what he has to do to be fired. 

OLBERMANN:  Well, let‘s find out if you can impeach somebody in that position, because that‘s the only way he‘s going to go.  Jonathan Turley, constitutional law professor at George Washington University, as always, great thanks for your time. 

TURLEY:  Thank you Keith. 

OLBERMANN:  How about this for legal scholars?  Three girls in a schoolyard fight over a boy.  They tape the fight.  They post the tape on the web and, yes, that‘s right, they get arrested.  Some of her friends are saying that the sparkle in Britney Spears‘ eyes can mean only one thing, tequila.  No, sorry, pregnancy.  That and the breaking Lindsay Lohan news. 

But first here are COUNTDOWN‘s top three sound bites of this day. 

(BEGIN VIDEOTAPE)

DENNIS KUCINICH, PRESIDENTIAL CANDIDATE:  I‘ve seen people dreaming the dream and stuck singing “16 Tons.” 

(SINGING)

MARK AUSTIN, REPORTER:  The scientists are convinced that something odd is happening.  I mean to the untrained eye, you can see some of these icebergs.  You can feel --  there we are.  I mean, that gives you an idea of what it‘s like.  That iceberg there has just deposited a huge amount of ice in the water.  More evidence, if you believe it, of global warming. 

UNIDENTIFIED MALE:  If it weren‘t for the skates and the fish net stockings, the stick fights, and human bowling, this might be just another exercise class.  Fun to watch too, in a kind of bad girl, women in prison movie kind of way. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

OLBERMANN:  Staging a fight for the purposes of videotaping it and then posting it on the Internet is nothing original.  Search for the word fight at YouTube and more than 230,00 matches pop up.  It‘s not just guys.  There are 11,000 girl fights at that sight, all of which makes it very hard to prosecute any of the participants. 

But in our number two story on the COUNTDOWN, when the fighters turn out to be 13 or 14-year-old girls, when the beating took place at a school, and when the girls were brash enough to brag about the fight on camera before uploading it, there are arrests and quickly.  Our correspondent from WNBC in New York is Tim Minton. 

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TIM MINTON, WNBC TV (voice-over):  Police say it started as a dispute over a boy, which a group of ninth grade girls e-mailed an invitation to another girl to work in person, in front of a North Babylon school.  What happened next there was hardly diplomatic.  It was a pounding, videotaped, investigators say, and posted on YouTube and other websites by the perpetrators themselves. 

LT. ROBERT EDWARDS, SUFFOLK COUNTY POLICE:  If this had not been on the Internet, the odds are, as a police department, we would have never have heard about this situation. 

MINTON:  The incident, in which a trio of ninth grade girls are seen punching, kicking, and dragging the victim by her hair, happened, police say, on December 18th.  Justice didn‘t come until after the holidays. 

(on camera):  The school superintendent says administrators first became aware of that video on January 2, the first day back from winter break.  He says within one day, by January 3rd, they had identified all of the suspects in the beating and a fourth student, a boy whom the superintendent says took those pictures. 

DR. JOSEPH LARIA, ACTING SUPERINTENDENT NORTH BABYLON SCHOOLS:  I was outraged, absolutely outraged.  It was a despicable act. 

MINTON (voice-over): The superintendent‘s office gave a copy of the video to police, who discovered that the victim had lied to her mother and father about the cause of the injuries, saying they were the result of a fall.  Within days the eight grade victim and family had agreed to press charges of attempted assault and juvenile delinquency against the attackers.  What superintendent Laria says stunned him, beyond the violence itself, was the non-reaction of other students seen in the video. 

LARIA:  The bystanders, there were other kids, and they didn‘t do anything, stood and watched. 

MINTON (on camera):  What do you say to them tonight? 

LARIA:  Look in the mirror. 

(END VIDEOTAPE)

OLBERMANN:  Jim Minton on WNBC in New York.  Our first joint appearance on the air since WVBR at Cornell in 1976. 

Back to the news, in an update tonight on another videotaped assault we first told you about in November.  A UCLA student who was tasered numerous times in his university library by university police.  He‘s now filed a federal civil rights lawsuit against the campus police.  Mustaffa Tabationijad (ph) says he was shocked several times, even once on his bare skin, after being grabbed by a campus officer on his way out of the library. 

Police were called there after he refused to show his student I.D.  because he felt he was being singled out due to his Middle Eastern appearance.  Most of the tasering incident caught on camera by another student with a cell phone.  Tabationijad has sued the campus police for unspecified damages, alleging that the officer who tasered him has a history of violence and brutality. 

No segue then into our nightly round up of celebrity and entertainment news, Keeping Tabs.  But there is breaking news to report tonight, Britney Spears is not pregnant.  “In Touch Weekly” had reported she might be pregnant, according to friends, who said they were close to Miss Spears.  How could the friends tell she was pregnant?  She‘s heavier, but that‘s not it.  It‘s the sparkle in her eye.  She always gets that sparkle when she‘s pregnant. 

Early this afternoon, however, a Spears‘ representative at Jibe Records told TMZ.com Spears is not pregnant.  Our sources, by the way, say the sparkle may be new contacts.  And TMZ.com breaking another big celebrity headline. 

This time it‘s Lindsay Lohan and she‘s going to rehab.  A representative confirming the trip to rehab in a written statement from Miss Lohan.  I have made a proactive decision to take care of my personal health.  I appreciate your well wishes and ask that you please respect my privacy at this time. 

She is using proactive?  There is no mention of what she‘s rehabbing from.  But last month it was Lohan‘s mother who revealed her daughter was attending AA meetings. 

Speaking of inexplicable celebrities, with his tell all book, “If I Did It,” on the shelf, and not the book shelf, O.J. Simpson is now fueling offers for yet another tomb.  Simpson attorney Yale Gallanter telling ABC News that his phone has been ringing off the hook with offers since the cancellation of the Judith Regan, Harper Collins, “If I Did It” deal. 

This time Simpson wants to write a non-fiction account of his life with his murdered wife Nicole Brown.  According to attorney Gallanter, the proceeds of this book would go to the families of the victims, and quoting, if we do this project, it will be done the right way, very tastefully.  Something new for Mr. Simpson. 

Exactly what did the late James Brown do in life?  The 23 days after his death he‘s still not buried and it may be another six weeks before he is.  That‘s ahead, but first time for COUNTDOWN‘s nominees for Worst Person in the World. 

The bronze tonight to Samaj Booker (ph) of Lakewood, Washington.  Unhappy that he was forced to move out of Dallas against his will, he stole a car that had been left idling at a neighbors house and led police on a chase at speeds exceeding 90 miles an hour.  That was Sunday.  Yesterday Mr. Booker stowed away on not one but two separate Southwest Airlines flights, and he got as close to his old home as San Antonio before he was finally arrested.  So why is he only second runner-up?  Because Samaj Booker is nine years old. 

The runner-up, we mentioned him earlier in the news hour.  His name is Frank D. Hargrove, a state delegate in Virginia.  That‘s the good picture of him.  He‘s opposed to a formal apology for slavery because, quote, our black citizens should get over it, and he asked the rhetorical question, quote, are we going to force the Jews to apologize for killing Christ.  Roundly denounced for the slavery remark, Hargrove was also beaten up for the second part.  Another delegate said his grandparents had been driven from their homes in Poland by people who subscribed to the Jews killed Christ excuse, whereupon Mr. Hargrove told him, I don‘t care about your religion, I think your skin was a little too thin. 

But our winner, another guy lost here in the complexities of 21st century America, Dinesh Dsouza, author of a new book blaming 9/11 on the cultural values of American liberals, which offended Osama bin Laden, causing him to kill everybody.  No, I‘m not kidding.  So, Dsouza goes on the Colbert Report and specifically blames, of course, Bill Clinton.  And Colbert mocks him by asking, doesn‘t some of it lay at FDR‘s doorstep.  And Dsouza doesn‘t realize Colbert‘s joking.  Indirectly yes, he answers.  FDR gave away Eastern Europe through Yalta and then the Soviet Union invaded Afghanistan, et cetera, et cetera, et cetera. 

See now actually, if you really want to trace it back, you go to Steven A. Douglas, because if he had run a better campaign in 1860, and beaten back that socialist bastard Lincoln, then we could have kept slavery and bin Laden would have loved us and wanted to come over for Mint Julips and Pecan Pie on the veranda.  Dinesh Dsouza, embarrassing himself in print and in public since 1984, today‘s Worst Person in the World. 

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OLBERMANN:  OK, let‘s get the joke out of way first.  Three weeks since he died, and James Brown is still the hardest working man in show business, still appearing, more or less, still on stage, unburied and still resting in his casket in his home in South Carolina. 

Our number one story on the COUNTDOWN, the legal wrangling over his will is one thing, the apparent plan to keep him lying around the house, as it were, until a Mausoleum can be built and a very public burial, sometime next month, that‘s quite another.   Is that plan ethical, legal, hygienic? 

According to his funeral director, Charlie Reid, Mr. Brown is currently resting in a room where the temperature is kept between 36 and 42 degrees.  Because he was embalmed promptly, and because there are no legal ramifications for preserving, but not burying, a body, Reid says Brown could theoretically stay in that room indefinitely.  But the family hopes to build a tomb and bury him in it within the next four to five weeks, presumably after consulting with Elvis Presley‘s estate. 

The Associated Press reporting that the Brown family is also interested in turning the home and Mausoleum into a Graceland style museum.  To help us figure out just what the heck is going on here at James Brown‘s house, I‘m joined now by Tom O‘Neill, senior editor at “In Touch Weekly.”  Thanks for your time tonight Tom. 

TOM O‘NEILL, “IN TOUCH WEEKLY”:  Good to be here Keith. 

OLBERMANN:  The funeral detector says this is not uncommon.  But have you ever heard of a dead celebrity being kept around for weeks after the death?  I mean, with all the connotations of “A Weekend at Berny‘s,” that such a situation conjures? 

O‘NEILL:  “Weekend at Berny‘s,” that conjures up recollections of the most famous case of this, of course, which was John Berrymore, who was so missed by his friends after he died that they all got together, went down to the funeral home, kidnapped his body, took it over to Errol Flint‘s house  for one last drinking party.  You know, in James‘ case, I don‘t think he would mind that one bit.  He was always the life of the party.   

OLBERMANN: So Brown‘s family is apparently keeping him above ground until they can build this Graceland style museum.  Is it going to be part of an exhibit?  I mean, you know, if that‘s the case, why not just leave him in the temperature controlled room or, you know, take the whole step here, put him on display, like Lennon in Moscow, under glass. 

O‘NEILL:  Absolutely, you know, people will pay anything to see a shrine to celebrities.  Look at what Princess Di‘s brother has done to the family estate over there in Britain.  He‘s turned it into Dallywood (ph).  You know, Einstein‘s brain was in a beer cooler.  It‘s still touring America.  You could put James on ice and get him out there.  He would like to go out on tour.  It‘s a shame to leave that guy lying around the house.

OLBERMANN: You know, you just live up to that reputation of the hardest working man in show business for many years after your passing.  Graceland bringing in millions of dollars a year to the Presley estate.  In indicating that they want to turn the Brown Mausoleum into some sort of similar venture, do the relatives come off as money grubbing or as mourners trying to preserve his legend and legacy, or are they just realists in the climate that you described? 

O‘NEILL:  I think that there‘s a lot of money to be made from dead celebrity-hood.  Look at the Forbes list that comes out every year.  Elvis usually tops it.  He makes 40 million dollars and he‘s dead.  That‘s how much Graceland and all the other things bring in.  People will literally pay anything to see these shrines to celebrities.  Right now, at an offshore casino, there is William Shatner‘s kidney stone that you can go see for money and he ain‘t even dead. 

OLBERMANN:  Well, I mean, just consider Paula Abdul?  While we‘re on this subject.  I mean, I don‘t know what sort of ion you would describe her, but it‘s not quite life like.  Why—the one serious question that has occurred to a lot of people in this is it was so quickly done to have the two services for him, the last one of the Apollo Theater in Harlem.  Why did it take so long to figure out what do with him long-term, considering how quickly they figured out what to do with him short-term?   

O‘NEILL:  You can‘t rush these things.  You‘ve got to make the James Brown beer mugs.  You‘ve got to make the James Brown Nintendo game.  And you‘ve got to make the James Brown doll.  That‘s really sensitive, because you‘ve got to get the hair just right.  You don‘t want to tick off the fans. 

OLBERMANN:  Well, speaking of ticking off the fans, is there still—do you suspect that there‘s still some tie-in between a lack of a burial and this matter of the will and the partner, Tommy Ray Heinie (ph), and let‘s not even make that obvious joke there, but suing for half the estate.  Do you think although they say these things are not interconnected, that this whole question and the five-year-old son that‘s not in the will, that these really are all part of one big puzzle?   

O‘NEILL:  Absolutely, in this case, of course, there‘s some question of whether or not they were legally married, because she had been married before and that hadn‘t been dissolved.  But it was very clear, on a very serious not here, that he considered her his wife.  They had just finished a documentary about their, quote, unquote, married life.  So she‘s got a case, I think. 

OLBERMANN:  And apparently while she‘s got a case, his case remains in that chilled room next to the refrigerator and the ice bucket in South Carolina.  It‘s the only way to deal with something this macabre is to have a joke at the expense of the circumstance, not of the man.  Tom O‘Neill of “In Touch Weekly,” and TheEnvelope.com, great thanks Tom. 

O‘NEILL:  Great thanks to you.

OLBERMANN:  That‘s COUNTDOWN for this the 1,355th day since the declaration of mission accomplished in Iraq.  No mention of Ted Williams at all.  I‘m Keith Olbermann, good night and good luck. 

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

END   

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