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'The Rachel Maddow Show'for Tuesday, January 13

Read the transcript to the Tuesday show

Guests: Barbara Boxer, Barney Frank, Bob Herbert, Dahlia Lithwick, Kent Jones

RACHEL MADDOW, HOST:  Thank you, Keith.



MADDOW:  And thank you for staying with us at home for the next hour.

A new report about law-breaking within the Justice Department, and a bit of a silver lining for the incoming Obama administration, the debate over expanding and escalating the war in Afghanistan gets smarter.  Bob Herbert is here to talk about that.

Barney Frank is here to talk about the bailout fight.  There are lots to come this hour.

But, first, the inauguration of President Barack Obama is now six days and 15 hours away-ish.  And if you like fever-pitch buildup, well, today, witness the biggest, potentially splashiest confirmation hearing of them all.  Secretary of State-nominee Hillary Clinton, the biggest political celebrity in America whose name is not Obama—today, she faced the Senate Foreign Relations Committee.

Hillary Clinton wasn‘t the only nominee to face congressional confirmation today but nobody else drew nearly wall-to-wall news coverage or a scrum of photographers in the hearing room that swarmed around her like ants at a delicious part of the picnic.  There were questions about potential conflicts of interests involving donations accepted by Bill Clinton‘s charitable foundation.  Awkwardly enough, given his own ethics history, the Senator David Vitter of Louisiana did most of the heavy-lifting for the Republicans on that subject.  Former Senator Clinton appeared to be well-armed to respond to those questions.

Ultimately, though, the important thing about Hillary Clinton‘s expected confirmation as secretary of state is what that appointment, that confirmation means for the Department of State itself—for diplomacy, for this thing that has a boring name but is the main tool we‘ve got as Americans for pursuing American interests around the world, through means that are not the military.


HILLARY CLINTON, SECRETARY OF STATE-DESIGNATE:  With smart power, diplomacy will be the vanguard of our foreign policy.  I assure you that if I am confirmed, the State Department will be firing on all cylinders to provide forward-thinking, sustained diplomacy in every part of the world.


MADDOW:  We have known this was coming, but today, it burst onto centerstage—soft power.  The end of the long era in which the capacity of the rest of our government atrophied while the military grew and grew and grew, and got more and more and more jobs assigned to it, to the point where even they, the military, have become desperate to get back to the job of just fighting and winning wars—where even the military brass are calling for a resurgence of the rest of government, a resurgence most of all of diplomacy, so the military don‘t have to handle everything themselves.

That new era started today.  You saw it most immediately in the effect of Hillary Clinton‘s celebrity.  She could not avoid the media glare today.  The front page news stories, the cable news show coverage.  RACHEL MADDOW SHOW, I‘m looking at you.

The outgoing Secretary of State Condoleezza Rice, on the other hand, she gave an exit interview to the “Washington Post” that did not even make the front page of the “Washington Post.”  Look inside, way inside—page A6.  An interview that “The Post” characterized as, quote, “a conversation that stretched to 75 minutes—and which Rice seemed reluctant to end.”

Clinton showed, indeed, today, by drawing a crowd, how her status will naturally draw more attention to the State Department.  And then there‘s Hillary Clinton‘s approach to her perspective new job.  The State Department she will inherit kind of resembles an old dying tree trunk, once mighty, it‘s been hallowing out for years.

In the Bush administration, even really high-level jobs in the State Department were left vacant for months at a time.  One report by a former group of ambassadors and other foreign policy experts said recently that the State Department needs to increase its hiring by 46 percent in order to get fully-staffed for its responsibilities.

Hillary Clinton is reportedly bringing in former Clinton budget director, Jack Lew, to serve as her deputy secretary of state for management and resources.  A long, boring sounding, fancy title, but basically means its his job to increase funding for the diplomatic corps, to rebuild the State Department.  Who served Condoleezza Rice in that capacity?  No one.  Rice never bothered to even fill that job.  It went unfilled during the whole eight years of the Bush administration.

Not filling your top jobs, including the one that‘s supposed to get you your funding and your stuff, leads to—duh—diminished funding and staff, diminished prestige and influence for the whole department.  Hillary Clinton‘s appointment signals a rather different political approach.

But here‘s why this is a political sea change and not just a single important appointment.  It‘s one thing for a department head to say, “My department is important, and under my leadership, we are going to forge a big, important, new mission.”  It is quite another thing for the head of the other departments, rival departments to say, “Yes, actually, give her some of our resources.  Her department is really important.  Her department really needs a higher profile.  She has our support.”

That is exactly the situation that Hillary Clinton and the State Department find themselves in.  For months Defense Secretary Bob Gates has championed the cause of increasing funding for his rival, for a competing department, for the State Department.  He even pointed out that the State Department has fewer diplomats than the Pentagon has lawyers.

And then, there was the chairman of the Joint Chiefs of Staff, Admiral Michael Mullen and his remarkable speech at the Nixon Center in Washington, D.C. last night.  This is the chairman of the Joint Chiefs of Staff talking.

He said, quote, “I believe we should be more willing to break this cycle and say when armed forces may not always be the best choice to take the lead.  It‘s not that the others aren‘t willing to lead, I know for a fact that they are.  But in many cases, they are just not able.  I think those partners should have the resources they need to begin with.”

He went on to say, “Our most effective ambassadors of peace in the future will not be those who wear uniforms, or bear arms.  They will be our civilians.”  So says the nation‘s highest ranking military officer.  The chairman of the Joint Chiefs effectively said that the military has been asked to do too much over the past eight years, that the balance of foreign policy power should shift away from the Pentagon.  It should shift back toward the State Department.

So, today‘s Clinton confirmation hearing was honestly short of fireworks but it could have been the start of a whole new world for how America works in the world.

Joining us now is Senator Barbara Boxer of California.  She questioned Senator Clinton today as a member of the Foreign Relations Committee.

Senator Boxer, thank you so much for coming on the show tonight.

SEN. BARBARA BOXER, (D) CALIFORNIA:  Thank you.  And thank you for this piece you just did, because I think a lot of people don‘t realize the sea change that‘s upon us and it‘s a good one.  And I think you explained it beautifully.  Thank you for that.

MADDOW:  Oh, well, thank you for coming on the show to talk to me about it.

BOXER:  Sure.

MADDOW:  It seems to me, because of Admiral Michael Mullen‘s statements, because of Bob Gates‘ statements .

BOXER:  Yes.

MADDOW:  . because he is staying on from the Bush administration, because Senator Clinton—that former Senator Clinton is going to be at the State Department, it sort of seems to me like there is consensus on these issues.

BOXER:  Yes.

MADDOW:  Is there anybody who‘s arguing against it?

BOXER:  Well, sure, you‘re going to have Mr. Vitter and others, you know, who are out there.  But for the most part, I think the American people understand.  They‘ve looked at two wars for all these years.  They‘ve looked at a lack of diplomacy, and they don‘t like what they see in the world.

And it‘s a wonderful thing to see these two former rivals, Barack Obama and Hillary Clinton, teaming up because he‘s going to be so busy here at home with this economic situation.  Who else could come close to his celebrity?  She comes very close to it, if not all—has all of it.  So, she will be out there and I think it‘s going to be a big success for America.

MADDOW:  Our military is, of course, unparalleled internationally.  Nobody can challenge our armed forces in conventional war.  But in diplomacy, in foreign aid, in development, you can‘t be dominant in the same way that you can be militarily.  What it does look like for us to be really ambitious about our non-military power, about our soft power?

BOXER:  Well, I think it looks good to the world.  They need us.  You know, remember when Barack Obama spoke in Germany and all those people came out and cheered?  It was incredible.  He actually took some political heat for it back home.

The fact is, the world is waiting for us to be that leader, that world leader that stands on morality and common sense, and shows the way that shining country that we‘ve really lost.  And I just think everyone‘s waiting for it, Rachel, and I think they‘re excited about it, except for, of course, the terrorists out there who want to see us just keep on doing what we‘re doing.

We have been playing—not me—I don‘t want to put myself in that category, but the last eight years, we have seen an administration that‘s played into their hands by simply not doing the tough work of diplomacy to win over the hearts and minds of the world.  And that‘s what Barack Obama and Hillary Clinton are going to do and we‘re going to all help them, I hope, all of us.

MADDOW:  During your questioning today, in very dramatic terms, you focused on the specific issue of violence against women.  You used the example of recent acid attacks on a group of Afghan school girls.  Why did you choose to highlight that issue today, and are you happy with way that Senator Clinton responded to your comment?

BOXER:  Well, I was not only happy with the way she responded, but my chairman, Chairman Kerry said he was thinking about appointing a task force headed up by the women on the committee to look at this.  I was very pleased with their response.  But I had spoken to Senator Clinton and Senator Kerry and told them I was going to take this route.

I have read this series of articles—I don‘t whether you have, Rachel, by Nicholas Kristof in the “New York Times” in which he‘s exposing specific incidents of violence against women, women, children, 13, being forced to be prostitutes.  Girls walking to school in Afghanistan with their teachers, acid thrown in their face.  A woman demanded a divorce; she suffered an acid attack by her husband.

So it goes on and on.  And somehow that issue—because we are preoccupied with so much else—doesn‘t get enough attention.

Here‘s the thing, even the most conservative historians have said that if women are given a chance to live up to their potential, the whole world will be a better place, because they‘re the ones who will start the micro-businesses.  They‘ll get out there.  And it‘s going to change the quality of life for the people all over the world.

So, this needs attention and it needs a light on it.  And Hillary Clinton, I thought, was absolutely eloquent in her response.  And I couldn‘t be happier about that.

MADDOW:  Do you see any bumps in the road for her confirmation?  And do you see any bumps in the road for the process of diverting more resources towards the State Department, towards foreign aid?

BOXER:  I think we will have a good vote on diverting those resources.  I think there is, as you say, a consensus developing, even from our military.  And when they speak, everyone in the Senate and the House listens intently (ph).


BOXER:  It brings us together.  And that‘s important now.  So I think we‘ll see that.

And I really think, outside of a few people who will yell about Bill Clinton‘s foundation, and it‘s an important issue, she‘s dealt with it, as she pointed out, no other former president has ever opened the books on their foundations.  I think they‘ve gone the extra miles.

I think Hillary Clinton understand it and she‘ll do the right thing. 

So, I think she‘ll be confirmed overwhelmingly.  That would be my guess.

MADDOW:  Senator Barbara Boxer of California, thank you so much for taking time to be with us tonight.

BOXER:  Thanks.

MADDOW:  Senator Clinton may be sort of cruising through her confirmation process, but should we expect a bumpier ride for Treasury Secretary-nominee Timothy Geithner?  The man who‘s been working through the transition to get the economy back on track may not have been paying his own taxes.  Yes, awkward.

Plus, House Republicans now say they‘re going to vote “no” on Obama‘s request for more bank bailout funds.  Congressman Barney Frank will join us to talk about that next.

And later, the politics of the war in Afghanistan gets smart and heated.  “New York Times” columnist Bob Herbert will be joining us.

But, first, just one more thing about diplomacy.  Senator John Kerry today, on his first day chairing the Senate Foreign Relations Committee, made an effort at camaraderie and courtesy towards Senator Clinton and her family.  Senator Clinton‘s husband, the former president, did not attend today‘s hearing in person, he said he didn‘t want to be a distraction.  But the Clintons‘ daughter, Chelsea, did come along.

Senator Kerry, probably, should have just said “Hello” and left it at that.  But he didn‘t.


SEN. JOHN KERRY, (D) MASSACHUSETTS.:  Let me as I introduce you, Senator Schumer, also welcome Chelsea.  We‘re delighted to have you here.  Since your father served as an intern on this committee, maybe we can make you an intern for a day, chairman‘s prerogative.


MADDOW:  Intern—intern - (INAUDIBLE).


MADDOW:  Today, when President Bush met, for the last time, with his cabinet, there was a burst of applause heard from behind the closed door of the meeting room.  Was it because they know they‘re only a step away from the really big bucks?

Citizens for Responsibility and Ethics in Washington has just released a report saying that 17 of the 24 former members of Bush‘s cabinet have taken positions with, at least, 119 companies, including 65 firms that lobby the government and 40 that lobby the agencies they used to run.  Seventeen of the 24 of them are lobbyists.

The Bush administration, if nothing else, is turning out to be a grateful employment program for its own members, for life.  Nice work if you can get it.


MADDOW:  Ah, TARP, the Trouble Asset Relief Program.  An asset relief program?  Supposed to be.  Troubled?  Totally.

And so, President-elect Barack Obama today scooted over to Capitol Hill to join Democratic senators at their weekly closed-door lunch to ask them not to block the release of the remaining $350 billion of TARP bailout funds.  That‘s the second half of the government‘s $700 billion government financial bailout which Congress passed in October.

It is a measure of just how controversial TARP has become that the president-elect would have to make the trip.  He does have a few other things to worry about these days.  But questions about what happened to all of the first half of the TARP money have made this issue rather unpopular, controversial, shall we say—controversial even among some people who were for it the first time around.

Elizabeth Warren of TARP‘s Congressional Oversight Panel, she is not the only one trying to pry answers out of the Bush Treasury Department about where the first half, the first $350 billion, went exactly.  Senator Carl Levin got so frustrated not getting answers from the treasury about where that money went, that he threatened to subpoena the Treasury Department.  That appears finally to have done the trick.

In a statement, Carl Levin said, quote, “The Department of Treasury assured me that there will be no need to serve a subpoena, because they will provide the documents I have requested.  It should not have taken two months and a subpoena threat, but I look forward to receiving the documents this week.”

Now, House Republicans seem determined to oppose the release of the second half of the TARP money.  House Minority Whip Eric Cantor has vowed to persuade members to vote against it and Minority Leader John Boehner now says he opposes giving out the second half of the money, too—even though it was he, weeping, who urged his Republican colleagues to pass the original TARP legislation.

House Financial Services Committee chairman, Barney Frank, said today that releasing the second $350 billion is essential to slow the rise of foreclosures around the country.  Opposition to this is a bit of a political freebie for the Republicans.  President-elect Obama will get that money, regardless of what the Republicans do.  Under the TARP law, the resolution can‘t be amended or filibustered, and it only needs a majority of vote in both chambers to pass.  So, it will pass.

But is the fact that the Republicans see that there‘s political hay to be made in opposing this thing, the fact they are going to stand up against it anyway, even though they know they will lose, isn‘t that a bit of a warning sign for the Congress and the administration in their efforts to fix the economy?  I need to be talked down here.

Joining us now is the chairman of the House Financial Services Committee, Representative Barney Frank.

Chairman Frank, thank you so much for your time today.


MADDOW:  How important is it to release the second half of the TARP money?

FRANK:  Very important.  And what we‘re being told, apparently, is that because George Bush screwed it up, Barack Obama can‘t get to use it.  If you listen to some of these people, and you‘d think the TARP was an animal that had been going around biting people.

The TARP doesn‘t have a heart or mind.  The TARP is a set of tools.  I would assume George Bush misused those tools.  He didn‘t use them the way he should have.  But why that should be an argument for denying to Barack Obama, I do not understand.

Let me give you an analogy.  I thought George Bush had a terrible foreign policy but they‘re not letting Barack Obama have a State Department.  I mean, the question is, will Obama do it better?  We believe he definitely will.

The Obama people believe that the economy is still hurting.  In particular, we agree that foreclosures have got to be reduced.  Both is a matter of some compassion, frankly, for lower income and middle income individuals, but also because the foreclosure crisis was at the heart of this current economic crisis, its reverberations have greatly been the root of the credit crisis, and if you don‘t solve the foreclosure crisis, if you don‘t diminish foreclosures, you don‘t get out of this.

There was a program that came forward from the Bush appointee, Sheila Bair, an excellent regulator at the FDIC.  She said, “I got a way to reduce foreclosures,” the Bush people wouldn‘t allow her any money to do it.  The most important thing about the TARP and the second $350 billion in the hands of Barack Obama is, it is funding and we will mandate this for reducing foreclosures.  That alone makes it very important.

MADDOW:  How assured are you that an Obama treasury will resolve not some of the strategic issues but some of the disclosures issues that have brought up so many of these concerns about how the first half of the money was spent by the Bush treasury?

FRANK:  Well, one, I trust the Obama people.  And they are not barred by these ideological restrictions.  You know, there‘s a difference between Democrats and Republicans.  To some extent, it‘s whether or not you think the free market can be left entirely on its own and will do everything right, or whether you need some intervention.  Now, the Republicans reluctantly agreed that it may need some intervention but their idea of intervention was give the money and don‘t let them—don‘t restrict the way they spend it.

We believe that there should be money with some strings attached, with some direction.  And I believe Obama and his people, Tim Geithner and Larry Summers, understand and believe that and will do it.  But we are not simply leaving it to trust.

The House, I hope, will be passing a bill this week that will set forward some very specific rules about how the TARP should be spent.  And I believe that we will get from President Obama, his commitment, that he will abide by this.  I don‘t believe the Senate is going to pass right away.  But if the House passes it, and President Obama says he‘s going to abide by it, it would then be pending in the Senate, and if there were to be some slippage, then they would go ahead and pass it.

But the fundamental point is—and think that we don‘t have to force Obama to do it, he agrees with us—that doing, diminishing foreclosures and only giving money to banks if they agree, in turn, to use it usefully, like re-lending it and other constructive ways.  He believes that, and we don‘t have to force him to do the right thing.  We tried to force Bush to do the right thing and it doesn‘t work.

MADDOW:  We know that House Republicans are going to vote impotently to not release the rest of the TARP money.  But my question is, whether or not they‘re also going to oppose some of these strings on the spending of the money that you have proposed, that the money be spent on foreclosure relief .

FRANK:  Well .

MADDOW:  . that they need to issue public reports every quarter about what they‘ve done with the money.  Are they going to vote against those things, too?

FRANK:  Well, they (INAUDIBLE).   Look, you need to understand that the House Republicans that—while some people might look at the election returns and said, “Gee, the Republicans are too far to the right and need to moderate a little bit,” the prevailing view among House Republicans is that they weren‘t far enough right.

There‘s a group called the Republican Study Committee, the purist of the pure, the ideologues, they‘ve pretty much taken over the Republican Party in the House.  And many of them believe, that look, if there are going to be foreclosures, that‘s tough.  After all, people shouldn‘t have done that in the first place.

These are the people—the people who control the Republican Party now, who, when we passed the bill in 2007 to prevent bad subprime loans from being made, when we interposed rules, that said, you can‘t lend money to people who manifest they can‘t pay it back, they attached us and said we‘re interfering with the market.  So of them, yes, they are believers that you let the free market run no matter what happens.

MADDOW:  We learned late this afternoon that President-elect Obama‘s pick to be treasury secretary, Tim Geithner, apparently, mistakenly paid thousands of dollars less in taxes than he owed.  In your judgment, should this affect his chances of confirmation, do you think it will?

FRANK:  No, because I understand that he repaid that sometime ago, that he misunderstood the fact that he was self-employed when he was working with the IMF.  I don‘t fully understand that.  But my understanding is that he paid it all back.

MADDOW:  Last question for you on—as we look at House Republicans thinking that they can make some political hay, they can earn themselves some votes by wailing against TARP, do you think, in part, there is a need for a little public relations, a little political leadership .

FRANK:  Well, that‘s what we .

MADDOW:  .to sell it—sell it to the American people?

FRANK:  I think if people understand what‘s at stake, yes.  First of all, we ought to be clear.  This is the final act of disassociation of Republicans from George Bush.  I think if you give them a lie detector test now, they claim to remember his name.

This is a repudiation of George Bush.  And the argument again is: That because George Bush did this badly, we should deny Barack Obama the chance to do it well.

I think and the public understands that this is the only way we are going to have to get foreclosures reduced, and that we are going to see money out of here now going to auto loans, which have been cut and to municipalities, which have had a hard time selling their papers, and to small businesses.  If people understand this and they understand the president-elect‘s view that this is necessary, then I think it will be supported.

And I think the hypocrisy of the Republicans, the Republican leadership, which worked hard to let George Bush have it and then let George Bush misused it, now objecting because we‘re trying to get Barack Obama use it in a good way—I don‘t think that will sell.

MADDOW:  Congressman Barney Frank, chairman of the House Financial Services Committee, thank you for your time tonight, sir.  Appreciate it.

FRANK:  You‘re welcome.

MADDOW:  Just days until Barack Obama finally takes office—does that mean a special prosecutor digging into possible crimes of the Bush administration?  Or does that mean an era of feel-good, post-partisan kumbaya amnesia?  Lame Duck Watch—coming up.


MADDOW:  Next week, new president here in this country, but same old, same old over in Afghanistan.  President-elect Obama is keeping Bush‘s war czar and Bush‘s defense secretary, and surrounding himself with senior folks who voted for the war in Iraq.  But apparently, he‘s got all new ideas for how to move ahead there.  Bob Herbert joins us in just a moment.

First, though, it‘s time for a couple of underreported holy mackerel stories on today‘s news.  We start with an update on one of the all-time great names in the ranks of criminal and misconduct investigations of Bush administration officials.

Bradley Schlozman is the name in question.  The man best known, not only for his name, but for rating, supposedly, a political Justice Department lawyer personnel as to whether they were libs, pinkos, commies or alternatively, RTAs.  RTA standing for “right-thinking Americans.” 

Mr. Schlozman replaced two-thirds of the staff at the Justice Department Civil Rights Division with personnel that he ranked on this nuanced scale.  The Justice Department‘s inspector general has just released its report on Mr. Schlozman‘s tenure at the agency, and the report is not good, to say the least. 

Quote, “We concluded that the Schlozman inappropriately considered political and ideological affiliations in hiring career attorneys and in other personnel actions affecting career attorneys in the civil rights division.”  Quote, “In doing so, he violated federal law and department policy that prohibit discrimination in federal employment based on political and ideological affiliations and that he committed misconduct.” 

And if that‘s not enough, quote, “Moreover, Mr. Schlozman made false statements about whether he considered political and ideological affiliations when he gave sworn testimony to the Senate Judiciary Committee and in his written responses to supplemental questions from the committee.” 

So the guy committed misconduct.  He broke department policies in his hiring decisions.  He broke the law in his hiring decisions, and he broke the law again when he lied to the Senate. 

Schloz, you‘re outdoing yourself here.  You‘re going to the crowbar hotel, aren‘t you?  No, actually.  Remarkably, even though the inspector general handed over Mr. Schlozman‘s case to the U.S. Attorney‘s office, the prosecutor decided not to bring charges. 

Wa, wa, wa, wa, letdown.  One silver lining here, though.  This report was finished in July.  The report not to charge the Schloz was made last week.  But release of the report now comes just a couple days before the confirmation hearings for the man who would be the new attorney general, Eric Holder. 

Kind of a nice reminder, actually a touchstone, if you will, for just how badly that very important department can be run if you‘re not careful about who gets in there.  

A second holy mackerel story today is also courtesy of the Justice Department inspector general.  This guy should be on the payroll here.  He writes all of my stories.  Another report from the same guy says that Joseph Band, a former senior attorney for the U.S. Marshal Service had a gig moonlighting as a part-time statistician for FOX Sports, which is admittedly a little weird. 

Weirder still is the fact that this Senior Marshal Service lawyer had armed on-duty deputies in government vehicles chauffeur him around to sports events while he was moonlighting.  No, I‘m not kidding. 

According to the report, Mr. Band had himself driven to two World Series Games in Boston in 2007 with FOX Sports broadcasters Tim McCarver and Joe Buck.  Last January, Mr. Band had U.S. marshals drive him and escort the limos of FOX broadcasters Troy Aikman and Joe Buck again to the Tampa Airport after an NFL playoff game. 

A month after that, deputy marshals drove Mr. Band and Mr. Aikman and Mr. Buck all around Phoenix back and forth between the airport and their hotels and the stadium on the occasion of the 2008 Super Bowl. 

One deputy marshal who picked up Mr. Band at the airport to bring him to that playoff game in Tampa told the Associated Press today that he didn‘t question whether it was appropriate that the marshals should be serving as a car service for this guy‘s FOX Sports moonlighting gig because, Mr. Band, quote, “was the guy who advises us on ethics.” 

That was the moonlighting sports guy‘s lawyer job at the Marshal Service.  His job was to advise the marshals on matters of ethics and integrity, which means this story is 100 percent perfect.  And I can add nothing further to its poetic full circle irony is dead interpretation.  


MADDOW:  Get ready for change you can believe in.  There‘s a new guy in charge of coordinating the war effort.  Actually, hang on.  No, I‘m sorry, we‘re keeping the old one.  President-elect Obama has asked President Bush appointee Lieutenant General Douglas E. Lute to stay on in his capacity as war czar, once again raising the question, what‘s a war czar?  Someone who oversees war efforts? 

Don‘t we already sort of have somebody in that job?  What‘s that called again, the commander in - commander in - oh, I forget.  And if memory serves, the commander-in-chief‘s war policy is one of the key reasons that America voted to change leadership. 

Yet, in the new Obama administration, the cast of characters involved in the war effort will not have changed at all very much.  The incoming Secretary of State Hillary Clinton - she voted for the war in Iraq.  The new chairman of the Senate Foreign Relations Committee, John Kerry, voted for the war in Iraq.  Bush‘s Secretary of Defense Robert Gates is staying put.  His aforementioned war czar, General Lute, is staying put.  And the man chairman in charge of Iraq, currently in charge of Iraq and Afghanistan at Cent Com, David Petraeus, is also staying put. 

So continuity we can believe in?  In terms of what happens next in Afghanistan, President-elect Obama is planning to essentially double the number of U.S. troops on the ground there from about 32,000 to about 62,000.  But it is unclear exactly why he‘s doing that and what his long-term intentions are for Afghanistan. 

The “Washington Post” front page has the story today, that says that the troops are a temporary measure.  They are essentially just designed to buy the Obama administration some time to come up with a strategy.  But the paper also reports further into section A on page eight that the Army is building $1.1 billion worth of military bases and other facilities in Afghanistan. 

And so in eight pages of the “Washington Post,” we have a relatively fresh and political foreign policy issue here.  This is an issue.  What to do in Afghanistan?  Contrary to common wisdom here, contrary to what a lot of folks believe, there isn‘t actually a consensus anymore that more troops are going to be the answer. 

A case in point, a new Web site launched this week by a group of progressive writers and activists urging President-elect Obama to “” by rethinking plans for a military escalation. 

I‘m joined now by another thinker who disagrees with the planned troop increase in Afghanistan, “New York Times” columnist Bob Herbert.  Hi, Bob.  Nice to see you.  

BOB HERBERT, “NEW YORK TIMES” COLUMNIST:  Hi, Rachel.  How are you? 

MADDOW:  Great.  You say that the Afghanistan war long ago turned into a quagmire.  What‘s the right way to deal with a quagmire? 

HERBERT:  Get out of it ...


HERBERT:  ... as quickly as you can.  Look, I think this is a terrible idea, doubling the U.S. troops in Afghanistan.  It reminds me very much of Jack Kennedy coming into office in 1961 and we had advisers in Vietnam. 

We should have learned a lesson of the French in Indochina.  We didn‘t.  We should have learned a lesson in this case of the Soviet Union in Afghanistan.  We apparently haven‘t.  So we‘re going to send 20,000 or 30,000 new troops in there without a new plan.  We don‘t know what the goals are. 

How are we going to pay for this?  George W. Bush took us to war and cut taxes at the same time that he took us to war.  And it‘s been an economic catastrophe, besides what‘s gone on, on the ground.  Now, Barack Obama is going to escalate our involvement in Afghanistan and he‘s cutting taxes at the same time. 

So how are we going to pay for this escalation?  Who‘s going to fight this war?  The troops are going to be going into Afghanistan, in many cases, have already served two, three, four or more tours in combat zones in Afghanistan and Iraq.  That‘s not fair.  We need shared sacrifice if we are going to be at war.  This is just a really bad idea.  

MADDOW:  We went into Afghanistan post 9/11 because the Taliban government there gave sanctuary to Osama Bin Laden and al-Qaeda and they used it as a base to plan attacks against us.  That was a very long time ago.  Bin Laden is still on the loose.  What‘s the goal of our efforts in Afghanistan right now?  What are the American interests in Afghanistan? 

HERBERT:  The specific interest is the same.  You don‘t want terrorists having a training ground or a safe haven in Afghanistan where they can plan attacks against the United States.  But we have troops there.  We have an intelligence capacity.  We need to expand our intelligence efforts and we need to focus on not allowing terrorists to develop plans to attack the United States, not on nation-building in Afghanistan, when we‘ve got an economy here at home that is collapsing before our very eyes. 

MADDOW:  What if those were the same things, though?  What if nation-building efforts were focused on trying to stop the rise in extremism in that region that has admittedly in part been caused by the presence of our troops there? 

HERBERT:  If you could show that that worked, if President-elect Obama takes office and can go on television and make the case to the American people that this in fact would work, that it would make the United States safer, that it will be worth the treasure that we‘re going to expend in terms of lives and in terms of the tremendous amount of money, then, fine.  We would have to listen to it.  But that case has not been made and I don‘t believe it can be made.  

MADDOW:  I wonder if the debate on Afghanistan has just become a completely different debate on what to do in Iraq.  I mean, we still have 150,000 - roughly, troops in Iraq, indefinitely in Afghanistan.  The debate seems to me to be moving into an area where is it not do we stay or do we state in a military capacity or do we stay in some sort of development, nation-building capacity that is not all about maintaining a military occupation, if only try to make right the damage that‘s been done there and continuing risks that might happen from extremists? 

HERBERT:  See, I think the extremist stuff and the potential threat to the United States is priority number one when you‘re looking at Afghanistan.  But I think the other things, it‘s going to be difficult to make the case, one, that they work and, two, that they are affordable.  Where is the money going to come from in this country for that? 

MADDOW:  Sure.  

HERBERT:  We need investments here at home.  And I just don‘t think that, that case has been made.  The other thing is at some point, we have to get over this idea of these foreign military adventures.  We have to wind it down in Iraq.  No matter what happens, there‘s still going to be a substantial American troop presence in Iraq. 

We need to wind it down in Afghanistan.  And again, no matter what happens, we‘re going to have a lot of troops in Afghanistan.  And we have these - you know, you mentioned the “Washington Post” story about the $1.2 billion in bases and other infrastructure that we are building there.  We have got to bring it down and then have a discussion on how we‘re going to go forward, not ratchet it up and then decide what we‘re going to do.  

MADDOW:  Buying time backwards maybe.  

HERBERT:  Backwards.  

MADDOW:  Bob Herbert from the “New York Times,” thank you so much for coming in. 

HERBERT:  Thank you, Rachel.  

MADDOW:  Ideally, crimes should lead to investigations, which should lead to prosecutions.  But for the new Obama administration, what will the alleged crimes of the Bush administration lead to?  Will there be a pursuit of justice?  Or will there just be post-partisan outrage fatigue?  “Lame Duck Watch” is next.


MADDOW:  As you may have heard, there is less than a week left in the eight-year run of President Bush.  Polling indicates that he‘s highly unpopular.  The News indicates why.  Barack Obama has indicated some of the ways he that plans to remedy the various dire situations that he inherits. 

But indications are ambiguous on one critical point.  Will the Obama administration investigate, and if need be, prosecute criminal constitutional abuses by the Bush administration? 

It‘s time for THE RACHEL MADDOW SHOW “Lame Duck Watch,” because we need clarity on these indications. 


MADDOW:  Under Bush and Cheney, the U.S. Government waterboarded prisoners, which is torture.  And the U.S. Government continues to hold prisoners without charging them with crimes.  And the U.S. Government tapped the phones of Americans without obtaining required warrants. 

What will the Obama administration do to explain, answer, you know, remedy those things?  Well, that is among the leading questions that the Obama transition‘s Web site, “”  There are responses from both Vice President-elect Biden and President-elect Obama posted on the Web site. 

But response plus response doesn‘t add up to answer.  Said the VP-elect on “,” quote, “The questions of whether or not a criminal act has been committed or a very, very, very bad judgment has been engaged in is something that the Justice Department decides.  President-elect Obama and I are not sitting thinking about the past.  We‘re focusing on the future.  I‘m not ruling prosecution in and I‘m not ruling it out.” 

So much for Mr. Biden.  Mr.  President-elect? 


BARACK OBAMA, UNITED STATES PRESIDENT-ELECT:  Obviously, we‘re going to be looking at past practices and I don‘t believe that anybody is above the law.  On the other hand, I also have a belief that we need to look forward as opposed to looking backwards.  


MADDOW:  So, yes but no, we will investigate but we won‘t?  Confused.  And then there‘s Dawn Johnson, the new administration‘s chief of the Office of the Legal Counsel.   She wrote this earlier this year, quote, “We must avoid any temptation simply to move on.  We must instead be honest with ourselves and the world as we condemn our nation‘s past transgressions and reject Bush‘s corruption of our American ideals.  Our constitutional democracy cannot survive with the government shrouded in secrecy, nor can our nation‘s honor be restored without full disclosure.”

Well, according to the Justice Department Web site, Dawn Johnson‘s job will be to quote, “provide legal advice to the president.”  Does that mean that she will have the president‘s ear when it comes to holding the Bush administration accountable for its actions?  These are mighty inconclusive tea leaves we have to read here. 

Joining us now to help us read them is Dahlia Lithwick, senior editor at “”  She just wrote about the question of whether to investigate our soon-to-be former president for the “New York Times.”  Dahlia, a pleasure to have you back on the show.  

DAHLIA LITHWICK, SENIOR EDITOR, “SLATE.COM”:  Thank you for having me, Rachel. 

MADDOW:  Among all these other mixed messages, who do you think in the administration we should look to for clarity on this question about what we‘re going to do.  Should it be the attorney general pick, Eric Holder, the Office of Legal Counsel head, Dawn Johnson, the president himself?  What do you think? 

LITHWICK:  Well, certainly, we‘ll know a lot more after Thursday‘s confirmation hearings for Holder.  I mean, one of things that I hope happens and I hope it happens the first second of the confirmation hearing is I want Holder to be asked the question that Attorney General Michael Mukasey refused to answer, which is, “Is waterboarding torture?” 

I want to hear him answer those kind of questions.  These are very unambiguous legal questions that have been really muddied over the past eight years.  And so I think one of the things we‘re going to get at least some guidance on is where Holder draws his line, whether the goalpost has moved irrevocably, post-Mukasey, post-Alberto Gonzales, or if the goalpost are going to back to where they used to be in the era of Geneva conventions, torture statutes and so forth.  

MADDOW:  So many of the arguments against prosecutions are political and stylistic in nature, this idea that you should not prosecute because that‘s looking backwards.  You have other political goals that might interfere with.  But let me ask you about the legal case, not the political case, but the legal answer to the question, “Why prosecute?” 

LITHWICK:  Well, one of things that‘s so intriguing to me about this whole conversation we‘re having and as you point out, we had it on in the New York Times on the op-ed page, as though this is an open legal question.  Crimes happen.  Should we prosecute or not? 

You know, this is a really thorny one.  And one of things that I think is really interesting about this conversation is that as you say, this isn‘t a legal conversation.  If we were talking about a bank robbery and the arguments against prosecuting we‘re, “Oh, well, these people were really stressed out.  It was a crisis.  They didn‘t think they were breaking the law.  Let bygones be bygones.  Let‘s just turn the page.” 

You‘d laugh at me.  This is not a legal conversation.  This is a pragmatic conversation, a political conversation and that‘s fine.  As a legal matter I don‘t think there‘s no question and I cited to it in my “Time” piece this week.  Laws have been broken.  There are war crimes that have been committed.  It seems that, as you say, at least three people were waterboarded.  The ACLU has collected over 100,000 pages of documents linking the White House to torture policy.  It‘s on their Web site.  It‘s has now come out in a book. 

Michael Ratner at the Center for Constitutional Rights has written a book laying out the case against Donald Rumsfeld.  And one of things that I think is so interesting, Rachel is we talk about this as though it‘s a game of clue.  Colonel Mustard, lead pipe, conservatory - as though these are very, very airy, fairy very, very complicated, unprovable legal presumptions. 

There‘s hundreds and thousands of pages of documents.  Let‘s roll them out, see what they say, and then if it warrants prosecution, let‘s prosecute.  The notion that we don‘t want to investigate, much less prosecute, is what‘s really astonishing to me.  

MADDOW:  And it would make further great defense strategy for the next person who ostentatiously does something like this in the future to be able to look back legally and say, “You shouldn‘t even be prosecuting me.  Look how you let these guys get away when you had all this documentation about what they did.” 

Dahlia Lithwick, senior editor at “”  Thank you so much for coming on the show tonight.  

LITHWICK:  My pleasure.  

MADDOW:  Coming up on “COUNTDOWN”, Keith Olbermann takes umbrage with Vice President Dick Cheney‘s latest defense of Guantanamo, that‘s it‘s a, quote, “fine facility.”  

And next on this show, I get just enough pop culture from my friend, Kent Jones.  Dick Cheney wants to write a book.  Suggestion for the title?  How about “Fear Itself?”


MADDOW:  Now, it‘s time for “Just Enough” with my friend Kent Jones. 

Hello, Kent.  What have you got? 

KENT JONES, POP CULTURIST:  Good evening, Rachel.  Lame duck Dick Cheney whose encounters with the English language range from long periods of stony silence to the use of colorful Anglo Saxon terms, says he seriously considering writing a book.  Cheney told Fox News, quote, “My family has been bugging me about it.  I‘ve got 40 years since I came to town to stay just 12 months.  I‘ve got a lot of stories to tell and a few scores to settle.” 

Think about that.  There are scores Dick Cheney has not settled. 

Oprah‘s Book Club, consider yourselves warned. 

Next up, clearly still bummed out about the Longhorns being shut out of the BCS title game, Texas Republican Representative Joe Barton introduced HR 390 in the house, quote, “A bill to prohibit as an unfair and deceptive act of practice, the promotion marketing and advertising of any post-season NCAA division one ball game as a national championship game unless such game is the culmination of a fair and equitable playoff system.” 

OK.  One, let Obama handle this.  Two, don‘t you have anything else on your plate, like, “I don‘t know everything”?  And three, beat Texas Tech next time, OK?  You win, you‘re in.  End of story.  Unless you‘re Utah, then you‘re screwed. 

Finally, winter blahs.  Need an excuse to party?  Well, Mardi Gras carnival season kicked off yesterday in New Orleans.  Mayor Ray Nagin dug in to some king cake at a 12-day celebration to launch the 2009 festivities.  And despite the financial downturn nationally and a rocky tourism economy, hotel bookings for Mardi Gras are ahead of last year‘s pace, said a spokesman for the greater New Orleans Hotel and Lodging Association. 

You know, it‘s a proven fact that recessions are powerless in the face of brass bands, Louis XIV costumes and enormous peach Daiquiris.  You know, Paul Krugman says this like once a week. 

MADDOW:  That‘s exactly right.

JONES:  Powerless.

MADDOW:  Thank you, Kent.  And thank you for watching tonight.  We‘ll see you here tomorrow night.  “COUNTDOWN” with Keith Olbermann starts right now.  Good night.  



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