updated 11/6/2007 11:19:28 AM ET 2007-11-06T16:19:28

Guests: John D. Hutson, John Alter, Hillary Mann Leverett

KEITH OLBERMANN, HOST:  Good evening.  This is Monday, November 5th, 365 days until the 2008 presidential election. One day until the Senate Judiciary Committee votes on the confirmation of Michael Mukasey as attorney general.  In 1983, in President Bush‘s home state of Texas, federal prosecutors charged a state sheriff and three of his deputies there with violating the civil rights of prisoners by forcing their confessions according to the complaint - the four conspired to quote, “Subject prisoners to a suffocating water torture ordeal that generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk or otherwise indicate that he was suffocating and/or drowning.”  In short, waterboarding.  All four defendants were convicted and the sheriff was sentenced to ten years in prison.

Our fifth story on the COUNTDOWN: The man likely to be President Bush‘s next attorney general still refusing to comment on whether the practice illegal during the Reagan administration might still be illegal during the Bush administration.  On the eve of the Mukasey vote, four retired judge advocates general from the judicial branch of the U.S. military criticizing judge Mukasey‘s legal hedging in a letter to the Judiciary Committee chair, Senator Pat Leahy of Vermont - quoting, “We write because this issue above all demands clarity.  Waterboarding is inhumane, it is torture and it is illegal.  In this instance, the relevant rule, the law, has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances.  To suggest otherwise or give credence to such a suggestion represents an affront to the law or the core values of our nation. 

The opinion of the J.A.G.s, joining that of former acting assistant attorney general, Daniel Levin, who voluntarily subjected himself to waterboarding before telling the White House in late 2004 that the technique could easily be considered torture.  ABC NEWS reporting Friday, that he was forced out of the Justice Department as a result of informing them so.  A member of the J.A.G. corps and the Air Force reserve, Republican Senator Lindsey Graham having spoken out against waterboarding just a week ago, quote, “I don‘t think you have to have a lot of knowledge about the law to understand this technique violates the Geneva Convention and other statutes.  But Friday, Mr. Graham was supporting the Mukasey nomination and was thus awarded with a campaign visit to South Carolina by President Bush.  Two other members of the Judiciary Committee split.  The top Republican Arlen Specter of Pennsylvania saying although he is bothered by Mukasey‘s hedging on waterboarding, he is going to vote for him anyway tomorrow.  Senator Russ Feingold of Wisconsin announcing that he will be voting against the nomination.

Time now to call in one of the authors of that letter to Senator Leahy, retired rear admiral John Hutson who served as judge advocate general of the Navy from 1997 to 2000 and is currently dean of the Franklin Pierce Law Center in Concord, New Hampshire.  Admiral Hutson, thanks for your time tonight.

REAR ADM. JOHN D. HUTSON, RET., FMR JUDGE ADVOCATE GENERAL:  Thank you for having me, Keith.  I‘m glad to be here.

OLBERMANN:  Is there any ambiguity, complexity, wiggle room on the question of whether waterboarding is torture?  The Bush administration has us as a nation debating torture calling this the torture debate.  Is there any real debate here whether waterboarding in fact qualifies as torture?

HUTSON:  No, Keith, there hasn‘t been any debate about this for 500 years.  This was a technique that was developed during the inquisition.  It was used by the French in Algiers.  It was used by the Khmer Rouge, used by the Gestapo.  There‘s no question that this is torture and always has been.  I mean, it‘s like the rack or thumb screws.  You know, it is the quintessential example of torture.

OLBERMANN:  Well whether there were Geneva Conventions, as you suggest, certainly as far back as the U.S. occupation of the Philippines after the Spanish-American war which is 1898.  U.S. soldiers were court-martialed for doing this.  Given how much history and law is actually at work here, does it make what Daniel Levin did in 2004 that much more extraordinary?  A Bush Justice Department lawyer asked to assess its legality, testing it on himself?

HUTSON:  Well, that is a pretty extraordinary measure to be taken.  And in many respects, I admire him for going the extra mile.  On the other hand, you‘ve got to remember, too, that he knew the whole time that it was being done by his colleagues and nobody was trying to really drown him.  There weren‘t any mistakes that were going to be made.  In the other context, where it‘s being accomplished by the enemy, you have none of those safeguards and the psychological trauma that is incurred is significantly greater.  So for him to say it‘s torture makes it ten times greater torture when it is being done by the other side.

OLBERMANN:  Yes and he made a point of that.  The safeguards made no difference.  He could rationally understand he was not actually in any danger but still believed he was drowning.  And the full effect of the terror of that transcended whatever safeguards and he had medical personnel with him.  We know what did happen when Mr. Levin said, trust me, it‘s torture.  They fired him.  What should have happened when he got back to his office and reported his conclusion to the people for whom he worked?

HUTSON:  Well, what should have happened—what happened for you know, 200 years of American history and 500 years of world history, we should have identified this as torture and the administration should have said—this is a line over which the United States will not cross.  In fact, we won‘t even come close to that line.  But rather, in a sort of fearful sort of way, we said, well, maybe this is something we have to do.  You know, torture is the interrogation technique of choice for the lazy, the stupid and the pseudo tough.  It‘s not the technique of real intelligence officers.

OLBERMANN:  And lastly, the goal of the letter you and the other members of the J.A.G. Corps wrote to Senator Leahy, what actually do you think might happen as a result of that?  Does it pertain to the Mukasey nomination or is it relevant regardless of what happens tomorrow?

HUTSON:  I think both.  I think it is—I think it‘s relevant to the Mukasey nomination.  Judge Mukasey was unable to say that he considered unequivocally waterboarding to be torture.  I think it‘s also important for military personnel who studied this to say this is something we can‘t do.

OLBERMANN:  Admiral John Hutson, former judge advocate general at the U.S. Navy.  Great thanks once again for your time and your insights, sir.

HUTSON:  Thank you, Keith.

OLBERMANN:  For more on the politics at work where torture and the Mukasey nomination coincide here, time now to bring in our own, Jonathan Alter, senior editor at “Newsweek” magazine.  John, good evening.

JOHN ALTER, NEWSWEEK:  Hi, Keith.

OLBERMANN:  Did that ABC report about Daniel Levin on Friday or what Admiral Hutson and his colleagues, the four J.A.G.s in this case, do in the letter to Leahy, did that change the landscape at all on Mukasey nomination or Senator Schumer and Feinstein still on the dark side here on the things going to get confirmed?

ALTER:  I wish I could tell you that those stories had changed something.  You know, what‘s essentially happening here is people are using the fig leaf and it‘s the fig leaf that would put Adam and Eve to shame, of Mukasey saying in his confirmation hearings that he considered waterboarding to be repugnant.  So they‘re using that as their fig leaf to say, all right, we‘ll go ahead and vote for him, even though he went on to make it pretty clear that just because he felt it was repugnant didn‘t mean he wouldn‘t be willing to use it should the circumstances merit it in his mind.  And so, we‘re in a situation here where people are claiming that the government of the United States does not torture as a matter of policy.  And we are learning every day that indeed it does. 

And you know, when you see the J.A.G.s—and by the way, this isn‘t the first time they‘ve weighed in on this.  The current as well as the retired J.A.G.s did over the last few years, a lot of the Republicans and the torture advocates will basically say, hey, that‘s a bunch of lawyers.  That‘s their all-purpose insult, Keith, that‘s just the lawyers that are keeping us from doing what we need to do to be safe.  We live in a society of laws.  We‘re supposed to respect the rule of law, not to mention the Geneva Convention.  So you know, this I think in a larger sense, whatever the immediate politics has taken our country to a perilous place.

OLBERMANN:  You know, I think Judge Mukasey is a lawyer, too, unless that‘s a nickname like Judge Reinhold.  You mention fig leafs.  It‘s against the odd obviously, but let‘s say the Democrats reverse course and those two senators have particular wake up tomorrow and have you know, come to revelation moment and Mukasey is rejected.  Could Mr. Bush actually appoint someone who‘s even more onerous to the Democrats on a recess appointment and survive the fallout that would occur after that?

ALTER:  Yes, I think he could.  I mean, you know, he could make a reason—I think that‘s one of the reasons that people like Chuck Schumer, besides the fact that he originally endorsed him, you know have reluctantly come around to support his nomination, because they know that you know at least Mukasey was a respected judge on other matters and is a bright guy and might otherwise be a halfway decent attorney general.  So, they‘re worried that they could do worse and they know this president is capable of it.

OLBERMANN:  How angry is the Democratic base?  Who is angry at?  Could the confirmation without any waterboarding could quid pro quo impact this election it‘s a year out now?

ALTER:  I don‘t think so.  I think a year from now we‘ll be talking about other kinds of things.  There obviously is some I believe very legitimate anger on the blogs on this.  But it‘s not something that really cuts as an issue because a lot of the Republicans are just able to say, hey, this has worked with Khalid Sheikh Mohammed and other terrorists even though we have no proof of that.  That‘s all just hearsay, that waterboarding has ever worked.  But they‘re always able to play that terror card.  The Democrats know they‘re able to play it.  And the liberal wing of the Democratic Party is not going to be able to wreak any vengeance on this except in maybe a few democratic primaries, you could see them raising this as an issue.

OLBERMANN:  Yes, it worked on him.  He talked.  What he said is something else altogether.  Jonathan Alter, senior editor at “Newsweek,” my colleague here at MSNBC.  As always, great thanks, John.

ALTER:  Thanks, Keith.

OLBERMANN:  So, the president knew three years ago that his own decider in the Justice Department had tried it out on himself and for himself and concluded waterboarding is torture.  That alone would seem to put Mr. Bush in serious legal jeopardy and it would beg the question if he was also told waterboarding didn‘t automatically produce truthful confessions, why did he risk it?  A very ominous possible answer to that may have been revealed in the Daniel Levin story—an answer we‘ll explore later tonight in SPECIAL COMMENT.

And wow, after General Musharraf suspended democracy in Pakistan, the president really came down on him like a ton of—air.

And the pictures as green week began were dramatic and breathtaking, so much so that you may have missed Al Gore‘s words during them about his political future.  Do not fret, we will recount them here.  I‘m sorry, recount probably not the word of choice right there.  You are watching COUNTDOWN on MSNBC.

(COMMERCIAL BREAK)

OLBERMANN:  Freedom in Iraq, President Bush has told us, is worth 3,800 American lives and some half a trillion dollars and counting because it will somehow magically prevent future terrorism.  (INAUDIBLE).  On our fourth story tonight is freedom worth in Pakistan with the sixth population in the world which borders Afghanistan, which harbors a resurgent, Taliban and possibly even Osama bin Laden himself, whose military is ambivalent at best (ph) about Bin Laden openly sympathetic in some quarters and, oh, yes, unlike Iran, it already has nuclear weapons.  On Saturday, Mr. Bush‘s close ally, Pervez Musharraf imposed full blown dictatorship on Pakistan, disbanding the Supreme Court, tossing political rivals in jail without trial, cutting phone lines, censoring the news.  Mr. Bush responded forcefully that day, well, Sunday, OK, to be honest, today.  And he denounced Musharraf in the strongest terms possible.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, U.S. PRESIDENT:  President Musharraf has been a strong fighter against extremists and radicals.

(END VIDEO CLIP0

OLBERMANN:  Take back.  But if Mr. Bush does not consider Musharraf himself extremist or radical that might explain the fact that Mr. Bush knew last week that General Musharraf was planning this.  And as you might expect from the spreader of freedom, he did everything possible to stop it.

(BEGIN VIDEO CLIP)

BUSH:  We made it clear to the president that we would hope he wouldn‘t have declared the emergency powers he declared.

(END VIDEO CLIP)

OLBERMANN:  Can you believe didn‘t work.  Let‘s turn once again Hillary Mann Leverett, the former National Security Council director for Iran and Persian Gulf affairs, who left the Bush administration last year.  Great thanks for coming back in tonight.

HILLARY MANN LEVERETT, FMR. NSC DIR. FOR IRAN, PERSIAN GULF:  You‘re welcome.

OLBERMANN:  In Pakistan, Mr. Bush says the best way to fight terrorism is to prop up a man who‘s now at least for the moment and certainly without any pretense here a dictator.  Everywhere else it‘s freedom as a weapon of choice for this president.  Can you reconcile what would look to the laymen like a surface contradiction?

LEVERETT:  It is a surface contradiction.  If only the president‘s policy - this administration policy was to prop up an effective, decisive dictator who could take charge against extremists and al Qaeda on the western border areas of Pakistan, maybe we would have some improvement; we‘d see some progress on the war on terror.  But this administration has not only given only a surface, a very cursory stamp of approval and support to President Musharraf, but we have then fought to undermine him across the board.  So, we have neither propped up an effective dictator in the war on terrorism, nor have we presented or worked for an alternative to stabilize Pakistan, which is one of the most important countries in the war on terror, the second largest Muslim population in the world and a country that does possession nuclear weapons.

OLBERMANN:  So do we have is a clear, a rooting interest as a nation, never mind as this administration here, in terms of counterterrorism?  Do we need a stable Pakistan more than we need a democratic one?  Is Musharraf trying to hold on to power, does that take more away from that nation‘s effort against al Qaeda, or would a fight between Musharraf and former President Bhutto be even worse?  In that regard, where is the path through this for us?

LEVERETT:  Look, for 60 years, Pakistan has had some form of military dictatorship.  And there has been some relative stability in Pakistan.  What was particularly problematic is on the eve of 9/11 and in the immediate wake of 9/11 when we had to call upon that military dictatorship to take unpopular, decisive moves in the war on terrorism, we only gave him half-hearted support.  And then we took our eye entirely off the ball of Pakistan and moved it to Iraq.  It would be nice in a perfect world, an ideal world for a Pakistan to be perfectly democratic civilian country.  But like so many countries around the world that are on the front lines in the war on terrorism, whether that it‘s in Saudi Arabia, whether it‘s in Egypt, whether it‘s in Turkey, there are important priorities that have to be determined by this administration or any administration.  And if you want to be serious in the war on terror, you can‘t push a president or the leader of a country to call elections tomorrow or next week.  That is going to fundamentally undermine his ability to take unpopular decisions to fight terrorism.

OLBERMANN:  The right here is fond of claiming that the left cheers for America to lose, but today the “Washington Post” was quoting an advisor to the Secretary of state, Doctor Rice as saying, “Thank heavens for small favors.  Compared to Pakistan,” quoting again, “Iraq looks pretty good.”  Is that the status of the Neo-Con version of the world right now, that if it looks better than Pakistan, it‘s OK?

LEVERETT:  It really is a pathetic pronouncement on the policies of the Neo-Cons and in particular, this administration.  It‘s a mixture of an ideologically bankrupt movement combined with incompetence on an extraordinary level that you would be comparing the situations in Iraq and Pakistan, incredibly serious situations where people are being killed and imprisoned, living under the threat of serious chaos, that they would be comparing the two policies of what‘s happening in Pakistan with what‘s happening in Iraq.  Both show the serious flaws that this administration has in its foreign policy both in its ideology and its implementation.

OLBERMANN:  Hillary Mann Leverett, the former National Security director in the Bush administration, and many thanks once again for your time tonight.

LEVERETT:  You‘re quite welcome.

OLBERMANN:  If Daniel Levin told the Justice Department waterboarding is torture and President Bush told the world that the United States of America does not torture, that would seem to make the president a liar and it also may mean he‘s looking at prison time.  SPECIAL COMMENTS ahead.

And got a condo made of stone-ah (ph).  We finally get to see King Tut.  You know, when they weren‘t letting us see him, I‘m thinking now, they were doing us a favor.  That‘s ahead on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  On this date exactly 402 years ago an English explosives expert was apprehended in a cellar beneath the British Houses of Parliament standing more or less next to 36 barrels full of gun powder with matches, fuses, firing cords and other incendiary devices.  He revealed he was Guido Fawkes - or the Gui Fawkes, and he had been hired by bunch of anti-monarchist Catholics to spend 18 months digging tunnels under the Houses of Parliament and blow them up and King James of England with them during the ceremonial opening of Parliament later that day.  For centuries few questioned the extraordinary timing of the interruption of the terrorist plot and there was no examination of the gunpowder to see if it might have corroded after seven months underground.  That credibility stemmed in large part from Fawkes‘ confession.  He ruled out the list of conspirators, they just happened to be most of the government‘s critics and enemies and he did this through the miracle of enhanced interrogation.  On that note, let‘s play Oddball.

We begin in Luxor, Egypt, where for nearly a century the world museum goers have known the image of King Tut only by the beautiful gilded visage on the outside of the sarcophagus.  Yesterday, it‘s the first time that we get to look under the hood, it‘s my sad duty to report to you that king Tut is a butt-face (ph).  Thirty hundred years, after the boy‘s king death and he looks awful.  His face distorted by the tar used during his mummification, his corpse enduring extreme wear and tear from changes in pressure and humidity since its discovery.  Now encased in an humidity controlled enclosure for all to see.  I‘m sure it smells real nice in there.  Funky Tut.

For the annual pumpkin roll in Chagrin Falls, Ohio.  For 38 years, the upperclassmen of Chagrin Falls high school slicked the hill up with pumpkin guts and slid down in sleds and gourd carcasses.  No major injuries this year, just minor scrapes and cuts.  The real problems start when the street is reopened to traffic and cars start twirling down the old hill.  Stay tune to Oddball for continuing coverage.

Al Gore‘s biggest fans must feel they‘re moving backwards.  As NBC‘s Green Week begins, he says now he‘s not even interested in a cabinet post.

And SPECIAL COMMENT on the revelation that a Justice Department official let himself be waterboarded, and then declared waterboarding is torture, explains the president‘s conduct of the last three years.  He must be living in fear he has already broken the law.  All that ahead.

But first time to COUNTDOWN the world‘s best persons in the world.  Number three, best driving excuse, Paul D. Keith of Wayland Mass (ph) and asked why he allegedly rear-ended the car in front of him at the traffic light when it turned green while allegedly drunk.  Police said he answered, he didn‘t move so I drove into the back of him.  When a light turns green, you‘re supposed to go, and I did.

Number two, best secret keeping.  President Bush while giving C-SPAN founder, Brian Lamm a much deserved Presidential Medal of Freedom, C-SPAN is not what you call exciting TV, the president said in a ringing endorsement, though the call-in shows do have their moments.  Nobody had the heart to remind the president that C-SPAN carries more of his speeches  than even Fox Noise does. 

And number one, best dentist, anybody except Dr. George Trusty of Syracuse, New York.  A lawsuit charges him with forgetting to hit the safety latch on an inch-long bit for his dentist‘s drill, which promptly, the bit did, flew off in a patient‘s mouth and lodged in her sinuses.  He was allegedly distracted at the time because he was drilling and dancing at the same time to the theme from the movie “Car Wash.”

(COMMERCIAL BREAK)

OLBERMANN:  Now that we‘ve all asked former Vice President Al Gore if he might run for president, we can move on to whether he would serve in somebody else‘s administration.  More on that presently in our third story on the COUNTDOWN, And as the seven years of the current administration has dramatically demonstrated, facts, including scientific facts, have never gotten in the way of disinformation.  So too with global warming, which hasn‘t stopped the critics of Mr. Gore, the so called the climate skeptics, including one who was recently featured on the op-ed pages of the “Wall Street Journal.”

In the former vice president‘s first interview since being honored with the Nobel Peace Prize, he answered that too, as part of NBC Universal‘s Green is Universal initiative.  “The Today Show” sent its hosts to the three corners of the Earth; Matt Lauer to the Arctic Circle, Ann Curry to Antarctica and Meredith Viera to 49th street, whence she asked Mr. Gore about that “Wall Street Journal” op-ed article by John Christy (ph). 

(BEGIN VIDEO CLIP)

MEREDITH VIERA, “THE TODAY SHOW”:  He wrote, “I see neither the developing catastrophe nor the smoking gun proving that human activity is to blame for most of the warming we see.”  What do you make of his assessment? 

AL GORE, FORMER VICE PRESIDENT OF THE UNITED STATES:  Well, he‘s an outlier.  He no longer belongs to the IPCC.  And he is way outside the scientific consensus.  And the reason the IPCC was awarded the Nobel Peace Prize, the thousands of scientists who make up that group have for almost 20 years now created a very strong scientific consensus. 

(END VIDEO CLIP)

OLBERMANN:  Mr. Gore also likened Mr. Christy to, quote, people who believe the Earth is flat.  Meanwhile, Mr. Gore‘s message on the central issue of global warming, as always, included predictions based on scientific studies, as well as the shocking trends.  But in just a couple of years‘ time, many of those predictions have become present. 

(BEGIN VIDEO CLIP)

GORE:  We face a planetary emergency, Meredith.  The climate crisis is by far the biggest challenge human civilization has ever faced.  And we‘re putting 70 million tons of global warming pollution into the Earth‘s atmosphere every single day, as if it‘s an open sewer.  And that pollution is trapping a lot more of the sun‘s heat.  And that‘s raising temperatures, melting the ice, making the storms stronger, lengthening and deepening the droughts, ironically also making flooding worse and moving tropical diseases into temperate latitudes, and causing a range of other changes that are not good for human civilization. 

But the good news is we can stop it.  And solving this crisis will lead to positive changes that improve the quality of our lives. 

(END VIDEO CLIP)

OLBERMANN:  And now to the latest, albeit unofficial, incarnation of the draft Gore movement, wherein he might escape the outliers and serve in the upper echelons of some other administration.  With Mr. Gore‘s answer, please note the use of the word certainly. 

(BEGIN VIDEO CLIP)

VIERA:  I have to ask you about the presidential race.  Barack Obama has said that you could serve in a very senior capacity in his administration.  I know you say you won‘t run for president.  But have you talked to him at all about that?  Would you like to serve in his administration, should he be president? 

GORE:  I haven‘t talked to—I haven‘t talked to any of the candidates.  I—you know, I have no plans to be a candidate myself.  And I certainly have no plans to go back into government service in any other position. 

(END VIDEO CLIP)

OLBERMANN:  So certainly no plans to go to any other position, but just no plans to be a candidate.  And how many angels can dance on the head of a pin?  How many senior members of the administration could personally face criminal charges for approving torture?  Why the story of the Justice Department official who let himself be water boarded could be a smoking gun.  Special comment ahead tonight. 

And did Rudy Giuliani really just imply he water boarded Mafia defendants while federal prosecutor in New York City?  Brit Hume co-stars in tonight‘s Worst Persons report. 

(COMMERCIAL BREAK)

OLBERMANN:  The airing of grievances taking center stage in tonight‘s number two story, Keeping Tabs.  Our celebrity and entertainment news begins with Oprah Winfrey going public for the first time in the abuse scandal at her South African girls academy.  Miss Winfrey disclosing today that 15 girls there ignored the advice of a superior to, quote, put on happy faces when she visited.  Instead, they were brave enough to press allegations of sexual and physical abuse that eventually led to the arrest of a matron at the school. 

In a satellite news conference, Oprah thanking the girls for coming forward and saying their spirits and hers remain strong, albeit a bit shaken. 

(BEGIN VIDEO CLIP)

OPRAH WINFREY, TALK SHOW HOST:  This has been one of the most devastating, if not the most devastating experiences of my life.  When I first heard about it, I spent about a half hour crying, moving from room to room in my house.  I was so stunned, I couldn‘t even wrap my brain around it. 

(END VIDEO CLIP)

OLBERMANN:  Thank goodness, Ms. Winfrey is OK, since after all this was about her. 

Not so hot, the movie and TV industry, which has a writers‘ strike for first time in nearly two decades.  The “Tonight Show‘s” Jay Leno joined his writers and writers guild pickets on the West Coast after the guild struck the major movie and TV studios today.  The guild demanding more money for writers when their work is sold on DVD.  They also want something more than they‘re currently getting, nothing, when it gets on to the Internet. 

On the east coast, it was Tina Fey and others joining the lines here at 30 Rock.  This could be a long one.  The networks have stock piled reality shows, put others on reruns.  Fortunately, despite its high fiction and comedic content, Fox News will not be affected because it is not unionized. 

Next, tonight‘s Special Comment.  If his Justice Department expert told him after trying it on himself water boarding is torture, why did President Bush still approve it?  Too stupid to know the torture victim will lie?  Or too smart not to know that a fake terrorist plot confession can be more useful than a real one. 

First time for COUNTDOWN‘s Worst Persons in the World.  The bronze to Kevin Mcgee, executive vice president of Fox Business Channel, blasting NBC Chairman Jeff Zucker (ph) in an interview; “If I were working under Jeff, who sort of failed upward, I would be miserable, too.  If we got any kind of foot hold or make any inroads at all, after all that, I think it will reflect very badly on Jeff. 

Apparently, this isn‘t going to be a problem, as the network reported that Zucker would be fired by noon last Friday.  Industry insiders say that Fox Business is down to an average of literally a couple thousand viewers.  I ran into Jeff in the hallway.  He seems to be OK. 

The runner-up, Brit Hume, anchor of the broadcast of record at Fox noise.  After State Department diplomats recoiled at involuntary assignments to Iraq, Hume claimed this was political and it‘s about the Bush administration and Iraq and the diplomats, quote, do not support the policy and do not think they should be obligated to carry it out, which is contrary to their oath. 

He called one dissenter, quote, a disgrace.  Brit made the stuff about the oath up.  Diplomats must swear to support and defend the Constitution, bear true faith, enter the obligation freely, faithfully discharge the duties.  Nothing about getting themselves killed or supporting moronic policies.  Newscast of record. 

And our winner, Rudy Giuliani.  After defending water boarding as not being torture, he went on to criticize Senator John McCain, who of course was tortured, then trying to hearken back to his own days as a federal prosecutor, Mr. Giuliani left our plane of existence; “Now, intensive questioning works.  If I didn‘t use intensive questioning, there would be a lot of Mafia guys running around New York right now.” 

So you water boarded criminal defendants in New York?  Did you really mean to say that?  By the way, former Giuliani pollster Frank Luntz also says, regarding Giuliani‘s speech impediment, quote, no one is going to make fun of him for it after 9/11.  This was at almost the same time Mr. Giuliani did a public impression of Hillary Clinton.  All bets are therefore off.  Suffering succotash.  Rudolph Giuliani, today‘s Worst Person in the World!

(COMMERCIAL BREAK)

OLBERMANN:  Finally tonight, as promised, a Special Comment on the meaning of the story of former U.S. Acting Assistant Attorney General Daniel Levin.  It‘s a fact, startling in its cynical simplicity, and it requires cynical and simple words to be properly expressed.  The presidency of George W. Bush has now devolved into a criminal conspiracy to cover the ass of George W. Bush. 

All the petulancy, all the childish threats, all the blank-stare stupidity, all the invocations of World War III, all the sophistic questions about which terrorist attacks we wanted him not to stop, all the phony secrets, all the claims of executive privilege, all the stumbling tap dancing of his nominee, all the verbal flatulence of his apologist, all of it is now, after one revelation last week, transparently clear for what it is, the pathetic and desperate manipulation of the government, the refocusing of our entire nation towards keeping this mock president and this unstable vice president and this departed wildly self-over rating attorney general and all the others from potential prosecution for having approved or ordered the illegal torture of prisoners being held in the name of our country. 

Water boarding is torture, Daniel Levin was to write.  Daniel Levin was no theorist and no protester.  He was no trouble-making politician.  He was no table-pounding commentator.  Daniel Levin was an astonishingly patriotic American and a brave man.  Brave not just with words or with stances, even in a dark time when that kind of bravery can usually be scared or bought off.  Charged, as you heard in a story from ABC News last Friday, with assessing the relative legality of the various nightmares in the Pandora‘s Box that is the Orwell worth euphemism enhanced interrogation, Mr Levin decided that the simplest and the most honest way to evaluate them was to have them enacted upon himself. 

Daniel Levin took himself to a military base and let himself be water boarded.  Mr. Bush, ever done anything that personally courageous?  Perhaps when you‘ve gone to Walter Reed and teared up over the maimed servicemen, and then gone back to the White House and confirmed and determined that there would be more maimed servicemen?  Has it been that kind of personal courage, Mr. Bush, when you‘ve spoken of American triumphs and the triumphs of freedom and sacrifice of your own popularity for the sake of our safety, and then permitted others to fire or discredit or destroy anybody who disagreed with you, whether they were your own generals or Max Cleland or Joe Wilson and Valerie Plame or Daniel Levin. 

Daniel Levin should have a statue in his honor in Washington right now.  Instead, he was forced out as acting assistant attorney general nearly three years ago because he had the guts to do what George Bush could not do in a million years, actually put himself at risk for the sake of his country, for the sake of what is right, and they water boarded him.  And he wrote that even though he knew those doing it meant him no harm, and he knew they would rescue him at the instant of a slightest distress, and he knew he would not die, still with all that reassurance, he could not stop the terror screaming from inside of him, could not quell the horror, could not convince that which is at the core of each of us, the entity who exists behind all the embellishments we strap to ourself, like purpose and name and family and love, he could not convince his being that he wasn‘t drowning. 

Water boarding, he said, is torture.  Legally it is torture.  Practically it is torture.  Ethically it is torture.  And he wrote it down.  Wrote it down somewhere where it could be contrasted with the words of this country‘s 43rd president.  The United States of America does not torture.  Made you into a liar, Mr. Bush.  Made you into, if anybody had the guts to pursue it, a criminal, Mr. Bush.  Water boarding had already been used on Khalid Sheikh Mohammed and a couple of other men none of us really care about, except, sir for the one detail you had forgotten, that there are rules. 

And even if we just make up these rules, this country observes them anyway because we‘re Americans, sir.  And we‘re better than that.  And we‘re better than you.  And the man your Justice Department selected to decide whether or not water boarding really was torture had decided.  And not in some phony academic fashion, nor while wearing the Walter Mitty (ph) poser attire of flight suit and helmet.  He had put his money, Mr. Bush, where your mouth was. 

So your sleazy, sycophantic henchman, Mr. Gonzales, had to have him appended and asterisk, suggesting his black and white answer wasn‘t black and white after all, that there might have been a quasi-legal way of torturing people, maybe with an absolute time limit and a physician entitled to stop it, maybe if your administration had ever bothered to set any rules or guidelines. 

Then when your people realized that even that was too dangerous, Daniel Levin was branded too independent and someone who couldn‘t be counted on.  In other words, Mr. Bush, one you couldn‘t count on to lie for you.  So Levin was fired, because if it ever got out what he concluded and the lengths to which he went to validate that conclusion, anybody who had sanctioned water boarding and who knows what else, anybody, you yourself, sir, you would have been screwed. 

And screwed you are.  It can‘t be coincidence that the story of Daniel Levin should emerge from the black hole of this secret society of the presidency just at the conclusion of the unhappy saga of the newest attorney general nominee.  Another patriot somewhere listened as Judge Mukasey mumbled like he had never heard of water boarding and refused to answer in words that which Daniel Levin answered on a water board somewhere in Maryland or Virginia three years ago. 

And this someone also heard George Bush say, the United States does not torture.  And he realized either Mr. Bush was lying or this wasn‘t the United States of America anymore.  And either way, he needed to do something about it.  Not in the way Levin needed to do something about it, but in a brave way nonetheless.  We have United States senators who need to do something about it, too. 

Chairman Leahy of the Judiciary Committee has seen this for what it is and said enough.  Senator Schumer has seen it reportedly as some kind of puzzle piece in the New York political patronage system, and unfortunately, he has failed.  What Senator Feinstein has seen to justify joining Schumer in rubber stamping Mukasey, I cannot guess.  It is obvious both these senators should look to the meaning of the story of Daniel Levin and recant their support for Mukasey‘s confirmation. 

And they should look into their own committee‘s history, and recall that in 1973, their predecessors were able to wring even from Richard Nixon a guarantee of a special prosecutor, ultimately a special prosecutor of Richard Nixon, in exchange for their approval of his new attorney general, Elliott Richardson.  If they could get that out of Nixon, you, before you confirm the president‘s latest human echo tomorrow, you better be able to get a yes or a no out of Michael Mukasey. 

Ideally, you should lock this government down financially until a special prosecutor is appointed or 50 of them.  I‘m not holding my breath.  The yes or the no on water boarding would have to suffice.  Because remember, if you can‘t get it or you won‘t, if the time between tonight and the next presidential election is likely to be the longest year of our lives.  You are leaving this country and all of us to the water boards, symbolic and otherwise, of George W. Bush. 

Ultimately, Mr. Bush, the real question isn‘t who approved the water boarding of this fiend Khalid Sheikh Mohammed and two others.  It is why were they water boarded?  Study after study for generation after generation, sir, has confirmed that torture gets people to talk; torture gets people to plead; torture gets people to break.  But torture does not get them to tell the truth. 

Of course, Mr. Bush, this isn‘t a problem, is it, if you don‘t care if the terrorist plots they tell you about are the truth, or just something to stop the tormentors from drowning them.  If, say, a president simply needed a constant supply of terrorist threats to keep the country scared, if, say, he needed phony plots to play hero during and to boast about interrupting and to use to distract people from the threat he did not interrupt, if, say, he realized that even terrorized people still need good ghost stories before they‘ll let a president pillage the constitution; well, heck, Mr. Bush, who better to dream them up for you than an actual terrorist? 

He‘ll tell you everything he ever fantasized doing in his most horrific of day dreams, his equivalent of the day you flew on to the deck of the Lincoln to explain you had won in Iraq.  Now, if that is what this is all about, you tortured not because you‘re stupid and you think that torture produces confession, but you tortured because you‘re smart enough to know it produces really authentic sounding fiction.  Well then you‘re going to need all the lawyers you can find, because that crime wouldn‘t just mean impeachment.  Would it, sir?  That crime would mean George W. Bush is going to prison. 

Thus, the master tumblers turn and the lock yields and the hidden explanations can all be perceived in their exact proportions and in their exact progressions.  Daniel Levin‘s eminently practical, eminently logical, and eminently patriotic way of testing the legality of water boarding had to vanish and him with it.  Thus Alberto Gonzales has to use that brain that sounds like an old car trying to start on a freezing morning to undo eight centuries of the forward march of law and government. 

Thus Dick Cheney has to ridiculously assert that confirming we do or do not use any particular interrogation technique would somehow help the terrorists.  Thus Michael Mukasey, on the eve of the vote that would make him the high priest of the law of this land, cannot and must not answer a question, nor even hint that he‘s thought about a question which merely concerns the theoretical definition of water boarding as torture.  Because, Mr. Bush, in the seven years of your nightmare presidency, this whole string of events has been transformed from its beginning as the most neglectful protection ever of the lives and the safety of the American people, into the most efficient and cynical exploitation of tragedy for political gain in this country‘s history. 

And then to the giddying prospect that maybe you could do what the military fanatics did in Japan in the 1930s, and remake a nation into a fascist state so efficient and so self-sustaining that the fascism itself would be nearly invisible.  But, at last, this frightful plan is ending with an unexpected crash.  The shocking reality that no matter how thoroughly you might try to extinguish them, Mr. Bush, how thoroughly you might try to brand disagreement as disloyalty, Mr. Bush, there are still people like Daniel Levin who believe in the United States of America as true freedom, where we are better not because of schemes and wars, but because of dreams and morals. 

And ultimately sir, these men, these patriots will defeat you.  And they will return this country to its righteous standards and to its rightful owners, the people.  Good night and good luck.

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

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