updated 1/16/2009 11:35:01 AM ET 2009-01-16T16:35:01

Guest: Charles Swift, Scott McClellan, Jonathan Turley, E.J. Dionne

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

The prosecution of the would-be 20th hijacker of 9/11 ruined because the Bush administration, with the approval of Secretary of Defense Rumsfeld had tortured Mohammed al-Qahtani.  “Thus, was his confession useless,” says Susan J. Crawford, the Pentagon official in charge of the military commissions.  We tortured Qahtani.  His treatment met the legal definition of torture.

The politics with Richard Wolffe; the ethics and for those who have no qualms, the practicalities that torture can absolve a terrorist, with the Hamdan attorney, Commander Charles Swift.

Mr. Bush‘s farewell tour continues.  Our special guest, Scott McClellan, as dumbfounded as the rest of us by this .

(BEGIN VIDEO CLIP)

PRES. GEORGE W. BUSH, UNITED STATES:  I have been disappointed at times by the silly name-calling that goes on in Washington.  It‘s really not necessary that it happened.  But I‘ve done my best, though, to make sure I didn‘t bring the presidency down to that level.

(END VIDEO CLIP)

OLBERMANN:  So, this, last September, this was a Bush impersonator?

(BEGIN VIDEO CLIP)

BUSH:  Fellow citizens, if the Hanoi Hilton could not break John McCain‘s resolve to do what is best for his country, you can be sure the angry left never will.

(END VIDEO CLIP)

OLBERMANN:  More chaos at justice.  No prosecution of Bradley Schlozman who dismissed a black colleague as writing in Ebonics, who said he wanted to “gerrymander all of those crazy libs,” who then testified to Congress that he never considered politics in his personnel decisions, and his racist colleague, John Tanner, still paid by justice to influence political redistricting a race-conscious Alabama.

Bushed: How bailout money for the collapse triggered by toxic mortgages is today being used to create new toxic mortgages.

And, the president-elect‘s charm offensive.  Dinner with David Brooks, Charles Krauthammer and William Kristol at George Will‘s house.  I hope they talked baseball.

All that and more: Now on COUNTDOWN.

(BEGIN AUDIO CLIP)

UNIDENTIFIED MALE:  Who are you picking in the series?

(END AUDIO CLIP)

OLBERMANN (on camera):  Good evening.  This is Wednesday, January 14th, six days until the inauguration of President-elect Barack Obama.

And virtually everything Mr. Obama must undo starting next Tuesday, President Bush did in the name of 9/11.  We had to shred the Constitution for 9/11, we had to become torturers for 9/11 to prevent another one, to ensure justice for those behind 9/11 itself.

And tonight, in our fifth story: On the eve of Mr. Bush‘s fevered attempt at legacy-rewriting, tonight, we know for sure, not only that Mr.  Bush‘s decision to torture merited that word, we know it now from a Bush official.  We also know that it has denied this nation, the victims of 9/11 and their loved ones the chance to see some justice done for that awful day.

Susan Crawford is the top official in charge of whether detainees at Guantanamo Bay actually go to trial.  Last May, she dropped the charges against Mohammed al-Qahtani, a Saudi accused of being the potential 20th hijacker.  Qahtani tried to get in the U.S. on August 4th, 2001 but was turned back at Orlando International Airport by a suspicious immigration agent after Qahtani refused to say who was meeting him.

The Pentagon says it was supposed to be Mohammed Atta.  That Qahtani was meant to fly onboard United number 93, which instead only had four hijackers, four who failed to overcome the rebellion by the passengers.

Today, Ms. Crawford has explained why she dropped the charges, why she told prosecutors she will never let them prosecute him, quote, “We tortured Qahtani.”  Crawford, a lifelong Republican appointed by Defense Secretary Gates, breaking her silence to the “Washington Post,” quote, “His treatment met the legal definition of torture and that‘s why I did not refer the case.”

In addition to the psychological abuse later authorized for use at Abu Ghraib, Qahtani experienced 18 to 20-hour interrogations for 48 out of 54 consecutive days, was deprived of sleep, was exposed to extreme cold for prolong periods, all which left him in what Crawford called a “life-threatening condition,” techniques Crawford says were authorized by the then-Secretary of Defense Donald Rumsfeld.  At one point, Qahtani‘s heartbeat dropped to 35 beats per minute.  He claims he is innocent.  He has recanted a coerced confession.

And if Qahtani is guilty, the 9/11 widows and families have now been denied, by Mr. Bush, the very justice that he claimed in their name warranted his sprint to abandon centuries of American principle.  Quoting Crawford again speaking of Mr. Bush, “I think he hurt his own effort.  I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it.”

Mr. Bush‘s failure to bring justice to the killers of 9/11, to fulfill his vow that they would hear us soon, brought home just as powerfully today by the man behind 9/11, by a new tape from a voice U.S. officials do not dispute belongs to Osama bin Laden, talking about Gaza.  The dilemmas Mr.  Bush leaves Mr. Obama, senior intelligence officials telling NBC News the tape was timed to, quote, “taunt Bush” at the end of his presidency, on his failed pledge to get bin Laden, quote, “dead or alive.”

We‘re joined again now by criminal defense attorney, Charles Swift, as a lieutenant commander in the JAG corps.  He successfully challenged one of Mr. Bush‘s first made up military justice systems in the landmark Supreme Court case, Hamdan v. Rumsfeld.

Welcome back to the program, sir.

LT. CMDR. CHARLES SWIFT (RET.), HAMDAN DEFENSE ATTORNEY:  Thanks for having me back, Keith.  It‘s great to be back.

OLBERMANN:  Your reaction to Crawford‘s interview, especially, in light of the fact that she is still the person in charge of prosecuting and deciding which of these Gitmo cases goes to trial?

SWIFT:  Well, I‘m surprised in that she‘s taken the stand at this point.  I‘m not at all in disagreement with her conclusion.  I think that‘s something—that Qahtani was subject to torture is something that‘s been known by the military for quite some time.  In fact, Stuart Couch who was originally charged with prosecuting Mr. Qahtani quit in 2006 citing the torture in the case.  And I believe that probably the political situation has shifted such that even the administration‘s strongest supporters can no longer claim that he was not tortured.

OLBERMANN:  Besides the fact that somebody is still serving, technically, in this administration has used that term, has said, “We tortured,” perhaps the headline in this or the sub-headline would be that she said that there were no individual technique was used on Qahtani but that the combination and the frequency and the duration and the intensity rose, or if you prefer, sank to the level of torture.  Can you explain that and the meaningfulness of her pointing that out?

SWIFT:  Simple part.  I think what most of us who have had involvement with Guantanamo Bay point out that it‘s the death of a thousand cuts, a famous Chinese torture.  It‘s no one thing.  It‘s everything.  And it‘s the combination with which it‘s done and the period of time with which it‘s done.

It‘s not that you‘ve not slept for 24 hours; it‘s that you haven‘t slept for 30 days.  It‘s not that you are exposed to the cold for 20 minutes, but hours on end, maybe for 10 days, et cetera.  And when all those things come together, they can kill an individual, they can drive an individual mad.  And they are absolutely tortured.

And so, once again, when one looked at the interrogation techniques that were being put together, I think it was always a propaganda part that we could publish all of this and say, “Well, none of this is that bad,” without looking at the absolute overall effects.  But, you know, it is in almost every case that is going on, Keith.

The Jawad case, the young man who—the young Afghani who‘s accused of throwing a grenade.  You know, he was subject to sleep deprivation for 22 days, enough to kill him.  The military judge found that that was torture, yet the administration still appeals it and still is arguing that, no, no.

So, for me, the biggest story today is this is the first administration official in charge of prosecutions ever to admit it; to say flat-out, “Well, that‘s torture.”  But it‘s not like that‘s the only case.

OLBERMANN:  Those who don‘t have ethical or legal qualms with the idea of torture, or if they like to clean up the language and call it “enhanced interrogation.”  Should they have a newer sense tonight with what Crawford said of the—just the practical qualms that—we‘ve already heard that it doesn‘t work, it doesn‘t produce bona fide information, and now, we‘re finding out that it may cripple investigations and let perhaps horrible, heinous criminals free?

SWIFT:  It has (INAUDIBLE) -- of course.  The use of torture jeopardizes your ability to prosecute someone.  It jeopardizes—and the reason it does is not some higher that if we do this then they are absolved.  The reason it does is it produces unreliable information.  It‘s a taint that taints everything.

And as Judge Crawford‘s pointed out, in that same article, this taint

and she is well aware—has grown to the point that it has contaminated everything Guantanamo and everything military commissions.

OLBERMANN:  Lieutenant Commander Charles Swift on an epic night of our understanding of the last few years of this horrible story.  Thank you, as ever, for your time, sir.

SWIFT:  No problem, Keith.

OLBERMANN:  In trying to shape his own legacy, Mr. Bush‘ clings to 9/11, claims it as his defining moment, in that much, at least, he is correct.  As of today, however, 9/11 now bookends the Bush presidency.  What began with failure to heed the warnings of Richard Clarke and Sandy Berger and the failure to respond once the FBI confirmed al-Qaeda‘s responsibility for USS Cole bombing, compounded now by the failure of Bush justice to get justice for even those he caught and even this new bin Laden audio tape discovered today mocking Mr. Bush.

Richard Wolffe is the senior White House correspondent for “Newsweek” as well as one of our own political analysts.

Richard, good evening.

RICHARD WOLFFE, MSNBC POLITICAL ANALYST:  Good evening, Keith.

OLBERMANN:  It‘s hard to imagine anything more ironic, more painfully ironic than this fact that Mr. Bush claimed we had to torture, he doesn‘t want to call it “torture,” we had to do this, let‘s use his term, to make us safe and to secure justice.  If he had another news conference, how do you think Mr. Bush would try to defend today‘s news, today‘s result that Bush justice will now deny us genuine justice perhaps in the Qahtani case?

WOLFFE:  Well, it‘s funny you should raise a question of a news conference because a couple of years ago, I asked him a simple question, I said, “What‘s your definition of torture?”  And his simplistic response was, “Whatever the law says it is.”  Well, now, you have the administration official responsible for what‘s left of the law in this case, saying this was torture.  So, the legalistic defense, the quibbling defense is off the table.

Another defense he often uses is about how he has set up the legal processes and institutions for his successor to deal with a war on terror, as he calls it.  And that‘s also collapsed because—let‘s face it, the whole military commission system has collapsed.

So, what‘s left is the fact that America hasn‘t been attacked on home territory and also, that there are undoubtedly some bad people left out in Guantanamo.  And there is the suggestion on the right and certainly my administration, there‘s a link between the two.  But there‘s also without sounding like Donald Rumsfeld, there‘s a link in the rooster‘s mind between his crowing and the rising of the sun.  And it‘s just not clear what the link is.

OLBERMANN:  Judge Crawford worked for Vice President Cheney when Cheney was defense secretary.  And today, Mr. Cheney acknowledged that there was a possible—the word he used was problem—with Qahtani but Cheney blamed the interrogators.  He‘s suggested they misapplied approved techniques.  Is history going to buy this “the bad apple defense” or is it going to conclude that Cheney and Gonzales and Addington and all the rest, specifically authorized techniques that in combination got them closer and closer to legalized torture?

WOLFFE:  Well, the vice president has also blamed the left-wing of the Democratic Party for suggesting that there was any torture going on.  So, I‘m not sure his claims have much weight when it comes to the historical record here and the record is very weighty when it comes to the chain of command on what they call these “enhanced interrogations techniques.”  The Senate Armed Services Committee just found that Donald Rumsfeld himself authorized these techniques and, of course, Crawford, too, pointed the finger at Donald Rumsfeld.

So, I don‘t know that the historians are going to spend much time on saying who is to blame.  There was collective responsibility here.  The question isn‘t “What happened” but “Why it happened.”  Why did they abandon core American values and judicial principles at this moment in time?  And that‘s what historians are going to debate.

OLBERMANN:  But ultimately here, there‘s an irony that, I think, will be translated into history.  That after 9/11, there was one thing Mr. Bush had to do and instead he wound up giving bin Laden everything bin Laden wanted.  He got the wrong war, he got a fearful country here, a tanking economy and he gave bin Laden a safe haven in Pakistan.

Mr. Bush literally stood on the remains of the dead of New York and vowed to get him and obviously, if he had, America would have rightly or maybe wrongly, forgive virtually everything else that happened.  This—is that going to stick out as if—as if this president, knowingly or unknowingly, chose every possible wrong path in the aftermath of what happened on 9/11?

WOLFFE:  Well, again, the critical question is: Why he stopped halfway?  I mean, they obviously believed in the demonstration effect of taking the fight to the Middle East, that the Middle East and Afghanistan are two very different places.  And the demonstration effect of standing up with the head of bin Laden and saying—this is what happens to people who attack this country, would have been incredibly powerful, much more powerful than reaching into the lower ranks of al Qaeda and burying their torture and interrogation for years in secrecy.

So, the question is, what the response should have been, and it clearly wasn‘t sufficient.

OLBERMANN:  Richard Wolffe of “Newsweek” and MSNBC—great thanks, as always, Richard.

WOLFFE:  Thank you, Keith.

OLBERMANN:  President Bush‘s farewell tour continues.  It is apparently a farewell tour through the things he has convinced himself happened, not the ones that really did.  The same man, who last September compared the angry left of America to the Vietcong, now says he did his best to not bring the presidency down to the level of silly name-calling.  Next: Our special guest who, like the rest of us, can‘t believe what he‘s hearing from Mr. Bush, Scott McClellan.

(COMMERCIAL BREAK)

OLBERMANN:  Former White House Press Secretary Scott McClellan on the president‘s farewell tour and his farewell speech tomorrow, and whether they will have similar levels of disconnection from reality.

Later: No justice at the Department of Justice as one racist politicizer will not be prosecuted, and another one has been reassigned to redistricting in Alabama.

In Bushed: How the bank bailout money is winding up in new toxic mortgages when the bailout became necessary because of toxic mortgages.

All ahead on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  In his news conference the day before yesterday, the one where he at least copped to the word “mistakes” and having made some of them, President Bush again claimed even joking that he has been misunderestimated.

In our fourth story on the COUNTDOWN: No joke, unfortunately, earlier this evening when his vice president, Dick Cheney, insisted that the Bush White House has not made any mistakes, only underestimated things—no “mis”, well, except for the entire premise.

The Bush legacy whitewash tour with two participants in today‘s edition.  In an exit interview airing tonight on PBS, Vice President Cheney telling Jim Lehrer, quote, “The argument that this is a failed presidency is just dead wrong.”  Adding that, “Some things, just a few things have been merely underestimated.”

(BEGIN VIDEO CLIP, PBS/ THE NEWSHOURWITH JIM LEHRER)

JIM LEHRER, PBS:  The president has also said that mistakes—he made some mistakes in the last eight years.  Did you make any?

VICE PRESIDENT RICHARD CHENEY, UNITED STATES:  Well, make mistakes.  I can think of places where there were—where I underestimated things.

(END VIDEO CLIP)

OLBERMANN:  As for those underestimations, Mr. Cheney is not assuming responsibility for any of them, the economy‘s precipitous collapse, the fault of the rest of the entire world; the 9/11 attacks, the fault of previous presidents; no WMD in Iraq, the result of faulty intelligence; the reconstruction since: Saddam Hussein‘s fault for having beaten down the Iraqi people to the extent that they could not bounce up quickly.  So, really, their fault as well.

Oh, and that alleged link between Saddam Hussein, al Qaeda and the 9/11 attacks, the vice president is still trying to muddy those waters.

(BEGIN VIDEO CLIP)

CHENEY:  He killed hundreds of thousands of his own people and he did have a relationship with al Qaeda.  That‘s not to say that Saddam was responsible for 9/11, it is to say, as George Tenet, CIA director, testified in open session in the Senate, that there is a relationship there that went back 10 years.

(END VIDEO CLIP)

OLBERMANN:  President Bush, meanwhile, followed up his last Q&A session with the press with an interview with Larry King, in which Mr. Bush knocked Washington for its tone, especially any criticism of him during the 2008 campaign by Barack Obama and others.

(BEGIN VIDEO CLIP, CNN/”LARRY KING LIVE”)

BUSH:  When you make big decisions and tough calls, you are going to get criticized.  And, yes, I—during the course of this presidency, of course, I‘ve been disappointed at times by the silly name-calling that goes on in Washington.  It‘s really not necessary that it happened.  But I‘ve done my best, though, to make sure I didn‘t bring the presidency down to that level.

(END VIDEO CLIP)

OLBERMANN:  Former White House Press Secretary Scott McClellan joins us now, author of “What Happened: Inside the Bush White House and the Washington Culture of Deception.”

Good evening, Scott.  Welcome back.

SCOTT MCCLELLAN, FORMER WHITE HOUSE PRESS SECRETARY:  Good evening, Keith.  Glad to be back.

OLBERMANN:  Two of the recurring themes in your book, that the White House used propaganda to sell the war and that it took a permanent campaign approach to governing.  Are we seeing both of these things in this sort of exit tour of interviews?

MCCLELLAN:  Well, I think, absolutely.  Nothing has really changed. 

What‘s really missing in this whole legacy tour or legacy project is candor

candor about substance and policy mistakes that the president is not acknowledging.  And there‘s a disconnect there between the public‘s view of his presidency and his own view and the vice president‘s view of this presidency.

And the only way you begin to close that disconnect is to openly and candidly acknowledge the substantive mistakes that were made or the policy mistakes that were made.  But all we are seeing now is, really, a calculated effort to engage in a political marketing campaign to try to shape the legacy for the better.  But you can‘t do that because—unless you candidly acknowledge those mistakes, you are not going to get people to listen to some of the more notable policy achievements that are a good story to tell.

OLBERMANN:  Which is likelier from your vantage point and your experience with these men, do the president and vice president actually think that they didn‘t make any significant mistakes, or as it is with the pre-war intelligence—are they cherry-picking the informs and sort of selling only what they want us to remember of this administration?

MCCLELLAN:  Well, there‘s probably a little bit of both.  I think, and to some extent, they are trapped in a state of denial about their own shortcomings and how this administration went off course.  I mean, you heard the vice president talked about how this isn‘t a failed presidency, that things didn‘t go off course, where the vast majority of the public would disagree with that assessment.  And I think, the facts bear out that, well, things did go off course.

One of the things I wrote about was how the threat of Iraq was overstated and oversold to the American people.  And it was later confirmed by the Senate Intelligence Committee.  And if they would go out there and acknowledge some of those mistakes, then I think they could go back and talk about some of the successes when it comes to giving more money to Africa for AIDS relief or education reform or other things like Medicare prescription drug benefit and get people to pay attention.

But right now, people are just tuning things out.  And the only thing they are doing at this point is really deceiving themselves.

OLBERMANN:  And what about Iraq specifically, Scott.  I mean, the vice president was also asked by Jim Lehrer if the war has been worth more than 4,200 American lives and he responded, “I think so.”  Is that answer he‘s going to wish he could take back or, as you know, part of the deal about being Dick Cheney means never having to say you‘re sorry?

MCCLELLAN:  Yes, I think that with the vice president, there is no reflecting, there‘s no second guessing, there‘s no looking back.  That‘s one of things with the president, too.  He‘s not one that‘s inclined to engage in self-examination or any genuine reflection about things.  They viewed this legacy project as just another way to try to spin things for the better.

And that‘s not the way to look at it.  You know, it‘s been the mistake with this administration all along that you could go out and politically market the war to the American people and that was the way to go about governing, instead of honestly addressing these issues and talking about the real risk that we faced and the real consequences of the decisions that would be made.

OLBERMANN:  I imagine there‘s not going be any last second awakening here in tomorrow night‘s address from the president?

MCCLELLAN:  Do not expect that.  You know, I would like—I would that that would happen someday, that maybe someday, he can engage in some honest reflection and self-examination, and come to grips with the reality of where things went wrong and what the real mistakes were in his presidency and accept responsibility for that.  Right now, every mistake that he admits or acknowledges is just part of the tactic for selling his legacy and a way to just continue to try to spin that legacy for the better, instead of acknowledging the real mistakes.

OLBERMANN:  Scott McClellan, author of “What Happened,” former White House press secretary—once again, great thanks for joining us.

MCCLELLAN:  Thank you, Keith.

OLBERMANN:  Mr. McClellan will be among our guests tomorrow night for analysis of the president‘s address to the nation.  COUNTDOWN will have live coverage of Mr. Bush‘s farewell remarks.  The speech is scheduled to begin shortly after 8:00 p.m. Eastern, the president‘s parting gift to you the COUNTDOWN viewer.

Another example of “we on dog violence.”  The dog is actually OK after a near-death experience.  A phrase that could also be used to describe listening to Glen Beck.  In 10 days, he‘s gone from calling Democrats communists, to demanding that nobody call anybody communists, to now calling Obama a Marxist.

Worst Persons is ahead.  You are watching COUNTDOWN on MSNBC.

(COMMERCIAL BREAK)

OLBERMANN:  Bests in a moment, and bank error in your favor.

First, forgive me for skipping the traditional anniversary or birthday, but I have to take care of something personal here, my niece Eve and my nephew Jacob have watched this show every night, well, most nights; occasionally, they switch over to Nancy Grace.  But Eve is not quite 3 years old.

And, Eve, I know you don‘t really get the television thing and every night before you go to bed, just about now, you say good night to me and then you‘re really surprised that I don‘t say good night back to you.  So, Eve, you say good night to me right now.  Good night, Eve.  And, Jake, you can stay up until 10:00 provided you can explain to Eve why I can‘t hear her every night.  What great kids they are.

OK.  That‘s over.  Let‘s play Oddball.

And, Jake, put your earmuffs on.  We‘re beginning in Marquette, Michigan, where the White family was tickled when Santa left a Nintendo Wii underneath their Christmas tree.  Everybody was happy except Ozzie, the White‘s 5-month-old Sheltie, who decided the shift in attention from dog to video game was too much to bear.

(BEGIN VIDEO CLIP)

KATHY WHITE, OZZIE‘S OWNER:  Alexis and I were bowling, practicing bowling, and Ozzie was standing by me.  And I went to bowl and Ozzie jumped up and I hit him in the temple and killed him instantly. 

(END VIDEO CLIP)

OLBERMANN:  That came out of nowhere.  As you can see, there is good news everybody.  Ozzie is back from the great beyond.  A neighbor came over and resuscitated the puppy, just in time to see his owner pick up the seven-ten split. 

To Heathrow Airport in London, where that yellow van is towing a woman in her broken down BMW into a parking lot.  The van gets through the gates without a problem.  The BMW not so much.  Those are what the Brits call a hydrolic Bollards (ph), lifting the car‘s boot and the lady inside six feet in the air.  Ain‘t that a kick in the Bollards? 

The woman was fine.  The car still didn‘t work, but it wasn‘t damaged any further at least. 

(END VIDEO CLIP)

OLBERMANN:  Unlike, say, the Justice Department.  The racism and political purges of Bradley Schlozman.  What faces Attorney General designate Eric Holder.  And the president elect visits a coven of conservatives columnists at George Will‘s house.  I hope before Obama left he made sure he still had his wallet. 

These stories ahead, but first time for COUNTDOWN‘s top three best person in the world. 

Number three, best save, the Pittsburgh Steelers are playing the Baltimore Ravens Sunday for a berth in the Super Bowl, which I will help bring you from Tampa on NBC on February 1st.  The Steelers/Ravens match up is a bit of a problem for Pittsburgh‘s mayor, Luke Ravenstahl.  Mayor Ravenstahl says between now and the end of the game his name will be, instead, Luke Steelerstahl, which is funny by itself, because Stahl is the German word for steel, meaning the mayor‘s temporary name means Steeler Steel. 

Number two, best lost soul, “American Idol” host Ryan Seacrest.  So impressed was he at the performance contestant Scott McIntyre, a pianist, that he tried to high five the guy, not remembering that Mr. McIntyre was blind. 

Number one, best imitation of the game monopoly.  Randy and Melissa Pratt deposited 1,770 dollars to their account in Western PA, then discovered the proverbial bank error in your favor.  It was credited as a 177,000 dollar deposit.  So they withdrew the money.  They quit their jobs and they moved to Florida.  They were buying a house in Orlando when they were arrested.  The bad news is they face charges of theft.  The good news is they are probably now eligible to apply for a bank bailout. 

(COMMERCIAL BREAK)

OLBERMANN:  Under the Bush White House, it has become corrupt in a way not seen since the attorney general brain-stormed with Richard Nixon on how not to prosecute Watergate.  With dozens of conservative ideologues placed in career positions, jobs that will out-live the current administration, the sender of a racist e-mail, we learned tonight, not only still in the employee of the department, but now assigned to another racially sensitive post. 

Our third story in the COUNTDOWN, what does President-Elect Obama do about the Department of Justice?  His pick for attorney general, Eric Holder, goes to the Hill tomorrow for his confirmation hearing, where he is expected to be grilled by the ranking Republican, Arlen Specter, about his record under the Clinton White House, before anybody moves on to the real challenges ahead at Justice. 

Part of the legacy he confronts comes courtesy of former DOJ appointee Bradley Schlozman, who managed to influence hiring in the Civil Rights Division to such an extent that out of 65 new hires for supposedly non-political posts, 63 of them had Republican or conservative ideological leanings.  Those employees get to keep their jobs long after Bush loses his. 

Despite the fact that the Justice Department‘s own internal investigation found Schlozman lied to Congress about his hiring practices, the office of the D.C. U.S. Attorney has declined to prosecute him.  Democratic Senator Chuck Schumer today calling that decision, quote, confounding.  He is now asking the DOJ to appoint a new prosecutor, preferably Nora Dennehy (ph), who led the investigation into the political firings of those nine US attorneys, to now investigate charges against Schlozman. 

We are joined now by Jonathan Turley, constitutional law professor at George Washington University.  Good evening, John. 

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY:  Hi, Keith. 

OLBERMANN:  Sixty three people hired for partisan bias now occupying posts at the Justice Department, career posts.  What should and what could Attorney General nominee Holder do about them without reenacting the politicizing that put them there in the first place? 

TURLEY:  That is the problem, Keith.  There is no way to drain this swamp.  Sort of like water pollution; you have to rely on the receiving capacity of a large agency to be able to absorb these types of appointments. 

The most important thing he could do is not worry about these minions, but the mission.  The reason we got into these problems was because the Justice Department has had three attorney generals, including the current one, that adopt clear legal relativity when they look at problems.  The important thing for Eric Holder tomorrow is to show that the legal relativism is over, and that he is going to make tough choices and follow the rule of law, even when he doesn‘t want to. 

The most obvious example of that is to say he will investigate any torture, and if torture is found, it will be prosecuted, because it is the law not just of this country, but the law of the world.  It is a war crime.  And by simply saying that, he would tell attorneys in that department that we are back in the business of doing justice after an eight-year hiatus. 

OLBERMANN:  Do you need an internal version of that as well?  Do you need the prosecution of Schlozman or any of the other people who ran into that sort of trouble of Congress, by not telling Congress what they had actually done?  Is that the same sort of symbolic importance as prosecuting torture? 

TURLEY:  Well, he could.  This is not necessarily a binding decision on him.  There is a reason why the U.S. attorney in D.C. rushed this decision to get it in just under the wire.  There is a policy at the Department of Justice not to go back and review these types of decisions.  But it is not an absolute rule.  I doubt he is going to do that. 

What we have now in, by the way, Mukasey is that he has now refused to prosecute criminal contempt of Congress in what seems a perfectly clear case of it.  He has refused to investigate torture.  He has refused to investigate unlawful surveillance.  And he has refused now to investigate false statements.  That is quite a legacy. 

OLBERMANN:  Does the claim from Senator Schumer or the goal from Senator Schumer about trying to get a second prosecutor, let alone a charge against this man, does it have any actual hopes?  Or is there anything that the Senate can do? 

TURLEY:  Well, there‘s not much they can do with Mukasey in this position and the U.S. attorney in D.C.  It is up to them.  Eric Holder obviously can ask for a full investigation.  But I doubt that he will.  We‘re desperately trying to get the Obama administration just to agree that they are going to investigate clear war crimes.  It seems even less likely that they are going to go back and look at some of these individuals. 

At the end of the day, the attorney general in the Obama administration has the job of cleaning up a horrific mess left by George Bush, who has done more damage to that agency than any president in history.  It is going to take a lot of heavy lifting.  It is also going to take a lot of principled decisions.  If he plays politics tomorrow, the way his successors did, I‘m afraid we can have little hope for the redemption of that department. 

OLBERMANN:  Do you think the redemption of the DOJ is something that will be facilitated by people in it?  Is the will there within the staff and the rank-and-file to clean it up for the attorney general, with the attorney general‘s lead? 

TURLEY:  I know many people in the Department of Justice, very talented lawyers, very apolitical, and they have been waiting desperately for this president to leave office.  Some of them have hung on because they love that department.  It is a grand department, with a wonderful legacy and history.  They want to rebuild it.  They‘ve waited a long time. 

This guy Schlozman, by the way, chased away careerists, who just couldn‘t stand working beneath him.  I tell you, if Eric Holder wants to be a true attorney general, more attorney than general, unlike his predecessors, he‘ll have lots of people to help him. 

OLBERMANN:  Jonathan Turley of George Washington University, thank you for helping us, as always, sir. 

TURLEY:  Thank you, Keith.

OLBERMANN:  We have a correction to make in connection to this.  While talking about the former voting rights section chief of the Department of Justice, John Tanner, last night, we ran this video in the early editions.  It‘s actually footage of John Tanner, Democratic Congressman of Tennessee, who was also mistaken for the other Tanner over the summer by none other than then Senator Obama.  Our apologizes to the Congressman, whose office took this in great nature.  We appreciate that.   

In one night, the president-elect spends more time with conservative journalists than President Bush has spent with liberal journalists in eight years. 

A conservative senator gets caught not doing his homework and inadvertently winds up agreeing with Carol Browner about the Fairness Doctrine. 

When Rachel Maddow joins you at the top of the hour, her special guest, the openly gay Anglican bishop who is to give the invocation at Obama‘s big inaugural celebration at the Lincoln Memorial on Sunday. 

But first, because they are not going away soon enough, the headlines breaking in the administration‘s 50 running scandals, Bushed!

Number three, Tanner-Gate.  You will remember that as part of yesterday‘s revelations Justice, a racist e-mail was revealed by Voting Rights Division Chief John Tanner.  Speaking of a prominent and well respected African-American chair of the US Commission on Civil Rights, Tanner had written that he liked his coffee “Mary Francis Berry Style, black and bitter.” 

The Associated Press now reports that the racist Tanner, who dedicated his career at Justice to putting up road blocks to any voting complaints on behalf of African-Americans, left the Justice Department to work on election related issues at the Alabama Law Institute.  Tanner‘s salary and benefits there are being paid for by a federally funded program out of the Justice Department.  He has been assigned to work on redrawing political districts, in Alabama, where they still sometimes would like to redraw districts to make it tougher for blacks to vote.  The Bush administration is still employing this racist guy so he can be racist. 

Number two, how to spend your waning days-gate.  Comedian Rush Limbaugh was off the air Monday.  Thank you.  It turns out he was in Washington for a birthday lunch with President Bush.  A week left in the administration and this is how Bush is wasting the time we‘re paying for, on this parrot.  Said comedian, “with ten minutes left in the lunch, the door opens and the stewards walk in.  Three stewards walk in with a little chocolate birthday cake.  And there is a little chocolate microphone on the plate with the chocolate birthday cake.  My mouth just falls open and I‘m just in stunned disbelief.” 

Since Limbaugh brought it up, Mr. President, I‘m hoping that when his mouth fell open, you kept your hands well away from it. 

Number one, bailout-gate.  Not only do we not know where the money has gone, not only does the Treasury Department not know where the money has gone, not only did the government not put any safeguards on the first 350 billion dollars to make sure the banks did not use to dish out bonuses, raise salaries or buy up smaller banks; but some of the money is now going to the very people who precipitated the crisis, the predatory lenders. 

The assistant inspector general of the Department of Housing and Urban Development has told Congress that several lenders who had been shut down for FHA loans years ago just started up handing out toxic mortgages again to more borrowers who will lose their shirts.  Not only that, but a staggering number of the loan appraisers approved by the government are also corrupt; 199 of them having been disciplined by individual states, and 3,480 more of them having expired licenses. 

So how in the hell is this happening?  How is the cure for predatory lending resulting in more predatory lending?  Because of all the ways we are spending our 350 billion dollars, one way we are not spending it is by increasing the staff at the FHA, so the FHA could check on whether lenders are credible or loan sharks. 

One more time, today, we call it a bailout.  Tomorrow, we will be calling it why daddy went to jail. 

(COMMERCIAL BREAK)

OLBERMANN:  The author of “The Art of War,” Sun Tzu, updated for President-Elect Obama‘s purposes, keep your friends close, your enemies closer, and anybody with a newspaper column closest.  Dinner at the house of George Will.  That‘s next, but first time for COUNTDOWN‘s number two story, tonight‘s worst persons in the world.

The bronze to Glenn Beck.  First he called Obama, Clinton, Edwards, all Democrats, communists or socialists.  Then in a promo for his new comedy who demanded that people stop calling politicians they didn‘t like communist or socialists.  Now, quote, “I do believe that Barack Obama is a socialist.”  Beck added, “he may be a full-fledged Marxist.  He has surrounded himself by Marxists his whole life.”  As Mr. Beck has been surrounded his whole by all of his own multiple faces and personalities. 

Runner-up, conservative writer Larry Schweikart, contending that Obama is trying to assume the legacy of Abraham Lincoln.  Says the only comparison is that they presumably will have both spent a lot of money as president.  Then adding, quote, “Lincoln had a war to deal with.  Obama doesn‘t.” 

An interesting observation from a conservative; Obama does not have a war to deal with.  Iraq, Afghanistan, not wars.  And the biggest slip, the war on terror isn‘t a war.  Watch out, Mr. Schweikart, they will throw you out of the paranoia club with talk like that. 

But our winner, climate change denier Senator James Inhofe of Oklahoma, desperate to capsize the incoming energy and climate adviser, Carol Browner, branding her a secret socialist.  Sounds like a Christmas thing, secret socialist.  And saying, “there is another organization that a lot of people don‘t realize.  It‘s called the Center for American Progress.  This report that came out, this is the group that is trying for the Fairness Doctrine, trying to, I think, dramatically upend the First amendment.  She, Carol Browner, was a member of that group.” 

As he fulminated, Senator Inhofe even held up a copy of a Center for American Progress report called “the Structural Imbalance of Political Talk Radio.”  Only one problem, in that report, the Center for American Progress specifically concludes, quote, “there is no need to return to the fairness doctrine.  Increasing ownership diversity will lead to more diverse programming.”

Senator, thanks for pointing out that Carol Browner belongs to a group that specifically opposes reinstating the Fairness Doctrine you‘re so scared of.  Senator James “maybe next time I‘ll remember to read the damns thing first” Inhofe, today‘s worst person in the world!

(COMMERCIAL BREAK)

OLBERMANN:  Talking with, not at, the loyal opposition is one thing.  And President-Elect Obama has already met with Republican and Democratic law makers, dwarfing President Bush‘s actual acts, not his self-proclaimed status as a uniter.  But now, in our number one story in the COUNTDOWN, there is this, a move that might be described as preemptively charming.  The president-elect literally walking into a den of conservative pundits, who have often framed him as the enemy.  They may call themselves pundits. 

The setting, the Chevy Chase, Maryland home of conservative columnist George Will, hosting a dinner party last night, confirmed by the Obama transition office, with no details about the meeting itself.  The president-elect accompanied by aides Marvin Nicholson and Tommy Beader (ph). 

The guests included William Kristol of the “Weekly Standard,” who also writes a kind of how many mistakes can you spot in this picture column for the “New York Times,” Times‘ full-timer David Brooks and Charles Krauthammer of the “Washington Post,” as well as Paul Gigot, the editorial page editor of the “Wall Street Journal,” which has often gone well beyond even the Republican National Committee in attacking Obama, and one of that publications columnists Peggy Noonan, also reportedly Michael Barone and Larry Kudlow of CNBC. 

The president-elect arrived about 6:30 p.m., left shortly after 9:00.  The pool reporter, Kenneth Bazinet, of the “New York Times,” writing “this is for real, folks.  The bloggers are going to love this one.”

As expected, Obama met today with a different group of columnists, commentators and others on the liberal to moderate side, including “Washington Post” columnist and Brookings Institution senior fellow who joins us now, E.J. Dionne.  Good evening, E.J. 

E.J. DIONNE, “THE WASHINGTON POST”:  Keith, good to be with you. 

OLBERMANN:  I will try to be—avoid being universally cynical about last night.  What was the point of that? 

DIONNE:  Well, you know, I think some people are looking at this as the surrender pact at George Will‘s house or rewarding his enemies.  Maybe it‘s Howard Dean‘s 50 state strategy extended to columnists.  It is worth remembering that Barack Obama got elected president of the Harvard Law Review because conservatives on the law review voted for him because he was one liberal who would talk to them. 

Secondly, I think it is harder for people to write nasty stuff about someone they spend time with and decide is intelligent and has—thinks things through.  And I think Obama always conveys that.  Some of these folks are my friends.  I‘ve been trying to change their minds for years.  I hope Obama has better luck than I have. 

OLBERMANN:  Does this also have the quality of letting him say later, if necessary, I tried? 

DIONNE:  Yes.  No, I think that I tried thing is very important.  As you said, it is not just with conservative columnists.  It‘s with Republicans in Congress.  When he was elected, he was elected with a base of very strong partisan Democrats and liberals.  But he also kept promising to end the partisanship in Washington.  He held Bush responsible for that. 

There is a whole other group that really likes all this reaching out.  There will always be some tension between those two strategies, hold on to the base, appeal to the folks who don‘t like partisanship.  I think he needs that second group if he‘s going to keep a majority. 

OLBERMANN:  In retrospect, it is amazing, isn‘t it, that Mr. Bush never really tried this.  I don‘t mean last month or even in 2004, but what about 2001, before or after? 

DIONNE:  Yes, I agree.  I interviewed Bush back in the late ‘90s.  I never somehow got invited to the White House.  But he has a certain charm to him.  It seemed that there was, almost to their media strategy, the same kind of Bush/Karl Rove appeal only to the base.  It‘s a little like their media strategy was like their hiring strategy in the Justice Department. 

OLBERMANN:  And I know we are sort of restricted to some degree by the fact that it was off the record.  But this meeting that you attended today, what can you tell us about that?  Any hard feelings that, unlike the thing at George Will‘s house, there was no food? 

DIONNE:  The way I looked at it is the conservatives had to give him food.  And he came to us and we didn‘t have to give him any food.  I‘m cooler in my own house hold, because I got to sit next to Rachel Maddow. 

This guy is very good at this.  He‘s calm.  He is smart.  He engages well with people.  It was a little like being at Professor Obama‘s seminar on how you deal with a whole bunch of big crises at the same time.  It was fun to watch him think as he was talking. 

OLBERMANN:  It‘s now 100 percent of everybody I have ever seen who has ever talked to him in any context.  They‘ve all used a word, either this word or one that is a perfect synonym for it: calm.  This is a very important thing to consider, is it not? 

DIONNE:  Oh, he is—no matter what you throw at him, he stays calm.  When you think about the campaign, no matter what was going on, he held on to that.  I think, for now, that is really key to his popularity.  When the country is in this much trouble, people like somebody who conveys a certain self-confidence.  I think in this respect, his model is going be FDR, who conveyed optimism and self-confidence in the middle of, at least on the economic side, an even greater mess than we are in now. 

OLBERMANN:  And occasionally goes where the food is.  E.J. Dionne of the “Washington Post” and the Brookings Institution, as always, great thanks, my friend. 

DIONNE:  Great to be with you. 

OLBERMANN:  That is COUNTDOWN for this, the 2,076th day since the declaration of mission accomplished in Iraq.  Up next from Washington, where she went for some sort of secret meeting with some guy about to get a new job with a big ceremony that she can‘t really talk about, “THE RACHEL MADDOW SHOW.”  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.

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