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'The Rachel Maddow Show'for Wednesday, May 13, 2009

Read the transcript to the Wednesday show

Guest: Philip Zelikow, Malcolm Nance, Kent Jones

RACHEL MADDOW, HOST:  And thank you at home for staying with us for the next hour on what could not have been a more dramatic day on Capitol Hill.  Check this out.

(BEGIN VIDEO CLIP)

PHILIP ZELIKOW, FMR. BUSH ADMIN. OFFICIAL:  The U.S. government, over the past seven years, adopted an unprecedented program in American history of coolly calculated dehumanizing abuse and physical torment to extract information.  This was a mistake, perhaps a disastrous one.

(END VIDEO CLIP)

MADDOW:  And he would know.  He was there while it happened and while it unraveled.  That was Philip Zelikow, counselor to Condoleezza Rice when she was secretary of state during the Bush administration.  Dr. Zelikow testified today in Washington as did an FBI interrogator who had to speak behind a screen, hiding his identity.

Dr. Zelikow is going to be our guest live in just a moment.

But before we go to him—just a very quick rundown of what happened today and what it seems like may be about to happen next.  First, the aforementioned FBI interrogator, Ali Soufan, a native Arabic speaker, an experienced undercover operator, a trained FBI interrogator.  Mr. Soufan was the guy you called if you got someone in custody who you felt could be a high-ranking al Qaeda source—someone like Zubaydah, who was captured in February ‘02.

Soufan and an FBI partner flew out to a secret CIA prison to start the interrogation process with Zubaydah as soon as he was captured.  Soufan eventually left after CIA contractors got the OK from Washington to start using harsh interrogation techniques—which Mr. Soufan found to be unreliable, counterproductive and, in his words at that time, “borderline torture.”

Mr. Soufan testified today that so-called enhanced interrogation was ineffective, especially in the case of a, quote, “ticking time bomb scenario.”

(BEGIN VIDEO CLIP)

ALI SOUFAN, FMR. FBI INTERROGATOR:  The technique is also slow.  Waiting 180 hours as part of a sleep deprivation stage is time we cannot afford to waste in a ticking bomb scenario.

(END VIDEO CLIP)

MADDOW:  In a moment, we will talk to a former master instruction from a military‘s SERE school.  It was those SERE school techniques that were reverse-engineered to devise this program.  We will ask that instructor about the collapse of the ticking time bomb scenario in today‘s hearing.

The State Department‘s Philip Zelikow offered a four-part explanation of why we got a torture program in the first place.  First, he says, we were, of course, incredibly scared of another attack after 9/11 -- that created a climate in which this sort of thing could be created.  Then, the CIA invented the torture program.  Then, the CIA argued successfully that the torture program not only would work but that it was the only thing that would work.  And then finally, critically, the Justice Department and the White House counsel said that such a program was legal.

Philip Zelikow says that‘s how the United States ended up with a systematic program of coolly calculated dehumanizing abuse and physical torment.  They ended up with that program even as some members of that government objected and were overruled.

Joining us now is Philip Zelikow, former counselor to then-Secretary of State Condoleezza Rice.  He also served as executive director of the 9/11 Commission.

Mr. Zelikow, thank you for joining us tonight.  I know it‘s been a bit of a red letter day for you.

ZELIKOW:  Glad to be with you, Rachel.

MADDOW:  First of all, as we did the last time we spoke, let me start by giving you the opportunity to correct me if I have mischaracterized anything at all in the introduction.  I talked a lot about what you said today.  Do you feel like it was a fair characterization?

ZELIKOW:  No, you actually read the full statement, which hardly anyone else has done.  So, good on you.  And you summarized it accurately.

MADDOW:  OK.  Thank you.

You described the CIA as having improvised this program of physical torment and describe that as one of the key things that had to happen for us to end up with this program that we ended up.  From what‘s been declassified so far, it seems like they may have started inventing that program even before the end of 2001, even before we had any high-value detainees in custody.

Do have you any sense of why it was that they invented that or if anybody instructed them to invent that program?

ZELIKOW:  I don‘t know.  And that‘s one of the questions that would be very helpful to find out—whether this was a demand poll or supply push or some relationship between them.  I think that‘s a question that really hasn‘t been documented in the record yet.

MADDOW:  As it has been argued, in particular, I‘m thinking about by

the president himself when he gave a speech on this subject in late 2006 --

the explanation for why we needed this program was that regular techniques

regular American interrogation techniques were not sufficient to the task, were not adequate to get what we needed to know.

               

If the program only existed, only came into existence, as you say, because it had been previously improvised, before we‘ve even had those people in custody, wouldn‘t that imply the president‘s explanation for why we needed a torture program isn‘t true?

ZELIKOW:  Well, people can say, “Gosh, isn‘t there any way we can get more intelligence?”  And then an executive agency says, “Well, actually, here are some ways we could get intelligence that have been proven to work by the army, the FBI and so on.”

But what happened here is an agency said, “Yes, we can do this.  We can do this using these unorthodox methods which America has never adopted before in all its history.  And we can make it work.  And in fact, we‘ll tell you, Mr. President, that there are no alternatives to using these methods, if you want to get at these hardened terrorists.”

Those are big judgments to be presented.  The agency could say, “Mr.  President, we‘ve looked at this and actually, there‘s not much that we can do legally.  And in fact the capability to conduct these interrogations doesn‘t really reside in our agency.”

MADDOW:  In terms of making that argument that there‘s no alternative, that this program would be uniquely effective in getting information out of prisoners, who were the—who was the CIA able to convince of that?  Who said, “Yes, we‘re convinced by that, go ahead”?

And we know that Secretary of State Rice signed off in some way on some of these techniques on July 17th, 2002.  That would imply that she was one of the people who was convinced by that argument, would it not?

ZELIKOW:  Sure.  The—well, that argument would have had to be put before the whole National Security Council.  The president, the vice president, the national security adviser, the secretary of state, secretary of defense, the director of the CIA—all had to be convinced by that argument.

And indeed, that argument was then presented to congressional leaders of both parties in briefings that began in September 2002, according to the latest chronology that‘s been released.  And I believe, actually, those arguments were presented repeatedly to many members of Congress who can heard them and—who heard them and they can attest to how strongly those arguments were advocated to.

MADDOW:  In terms of internal dissent within the Bush administration when you, among others, were voicing concern or criticism of this approach, was the fact that members of Congress had been briefed, in one way or another, used to trying to rebut your dissent, in order to try to argue further for the program, that it would be OK?

ZELIKOW:  Sure it was.  I mean, we would make the argument that the program is wrong for this or that reason.  And the response would come back, “Well, we‘ve informed members of Congress of both parties.” and they would name names, “repeatedly in various briefings over the years about this, and they‘re OK with it, why are you so troubled by it?”

Now, we would—we were not deterred because—just because members of Congress approved of it, it doesn‘t make it right.  But that was an argument that would be employed on the inside.  And I don‘t know what the members of Congress were told.  I do know there was a record of a great many briefings, but the people who were in those briefings will have to attest about whether they understood what was going on and what they were told about the effectiveness and legality of these methods.

MADDOW:  Dr. Zelikow, the last time that you were here, we talked about the memo that you wrote, objecting to the Justice Department‘s legal approval of these enhanced techniques.  And you revealed today that at least one copy of that memo has been found, even though you were ordered to destroy it, copies of it were ordered to be destroyed.  You said that the memo, surviving copy of the memo, is being evaluated for declassification.

Do you think it‘s going to be declassified?  What do you think the implications of that might be?

ZELIKOW:  Well, I‘m sure—I feel confident it will be declassified, because the memo I wrote doesn‘t have anything in it that goes beyond the OLC memos that have already been declassified in secrets.  It mainly consists of citations of case law to make a legal argument.

I‘ll also add that in my—as part of my statement today, two other papers were attached as annexes that were written in 2005 in which one that I wrote with the deputy secretary of defense and another that I wrote with the State Department legal adviser, Mr. Bellinger, in which we formally at length put forward alternative legal frameworks and make the cases for those.  And those papers are now in the public record.

There is a further paper in February of ‘06 that we wrote going after the Justice Department legal reasoning and arguing that their view of the American Constitution was extreme.  And that‘s the one that now needs to be declassified and added to the record.

MADDOW:  And, of course, that will lend itself to the arguments about whether or not the Justice Department lawyers who were working on these things were doing essentially professional, legal work on the matter, whether they were considering all the relevant case law here.

I have to ask you one last question about, actually, the 9/11 Commission, which, as you know, relied heavily on interrogations of high-valued detainees.  You told NBC News at the beginning of last year that you guessed but you didn‘t know for sure that harsh techniques were used in those interrogations.

And yet the 9/11 Commission not only used information from those interrogations, you actually ordered up more; 9/11 Commission asked CIA to do more interrogations.  And as far as I understand it, that was early 2004, when the full range of these techniques was being used on these prisoners.  If that‘s all true, doesn‘t that in effect mean that you ordered up what might have been torture on some of these prisoners that you wanted further information from?

ZELIKOW:  Well, we don‘t—we don‘t know that and we still don‘t know that.

But, Rachel, think through the problem.  We had—we had to do four things to discharge our obligation.  One, we, on the 9/11 Commission, had to obey the law.  There was a law telling us that we had to do everything, find out everything the government knew about these attacks.

Two, we had to presume that the people giving us this information were themselves complying with the law unless we had evidence that they were breaking it.  So, we had to obey the law, we had to assume, second, that they were obeying the law.

Third, we had to do everything we could to find out how they were getting the information, to try to check that out.  And then fourth, we had to be completely transparent about what we knew, what we didn‘t know, and what we did to try to find out about how they were getting the information.

We were transparent about that in the report, and then we prepared a complete report which has been made public and which I‘ll give to your program that you can post on your Web site, that says everything the 9/11 Commission did in order to find out just how these people were being questioned, so that we could try to see if there was anything wrong there as we discharged our own legal obligation to the American people.

MADDOW:  And in the process of making those inquiries, you never were informed, you never found out that things like waterboarding or these other extreme techniques were being used to get that information you asked for?

ZELIKOW:  No, absolutely not.  And in fact, nondisclosure of information to us is currently a topic of investigation by the special federal prosecutor, Mr. Durham.

MADDOW:  Dr. Philip Zelikow, former adviser and deputy to Secretary of State Condoleezza Rice—thank you for testifying to the Senate today, thanks for your time talking with us tonight.  I appreciate it.

ZELIKOW:  You‘re most welcome.

MADDOW:  Coming up: We will be joined by Malcolm Nance, who is an instructor from the SERE school we have all inadvertently learned so much about recently.  Also, further on in the show tonight, Republicans have decided to bring back the tea parties, already.  Except this time, they‘ve added a new twist.  That is coming up.

But first—just One More Thing.  At a debate and dinner featuring his daughter last night, former Vice President Dick Cheney continued dispensing his deeply, deeply, unsolicited wisdom to the Obama administration about how to keep the country safe—this time, from a nuclear-armed Iran.  Cheney said any negotiations with Iran are, quote, “bound do fail unless we are perceived as very credible in the threat that we might go to war with them.”

According to Ben Smith at Politico.com today, Cheney then went on to explain why that whole “working with our allies” idea just doesn‘t apply when it comes to Iran.  Commenting on Europe‘s role in negotiations with Iran, Cheney said that the Europeans just want to restrain the U.S. from taking military action and then he said, quote, “Everybody‘s in a giant conspiracy to achieve a different objective than the one we want to achieve.”

You know, given what the Bush/Cheney foreign policy achieved in terms of our relationship with the rest of the world, a giant conspiracy to achieve a different objective—is actually one sort of honest way of putting it.

(COMMERCIAL BREAK)

MADDOW:  Faced with overwhelming new declassified evidence that the Bush administration sanctioned and maybe ordered the torturer of prisoners, the administration‘s defenders have just about quit denying that torture took place.  And instead, they have taken up defending torture, most recently using ye oldie ticking time bomb scenario.  You know how this goes, if you think there‘s an attack that‘s about to take place and you‘ve got someone in custody who you think might know something about that attack, wouldn‘t you torture them?

You know, but the ticking time bomb has never been the best argument for torture.  It has that slippery slope problem, where you could just as easily accuse someone of not really wanting to stop that attack unless they skinned someone alive or killed that person‘s family in front of them.  I mean, where does it stop?

Still, it has a visceral effect.  It makes you feel scared just to think about that tick, tick, tick, tick, tick.  And we all heard that tick, tick, tick, tick, tick on full display this week as Liz Cheney defended her father‘s position on torture.

(BEGIN VIDEO CLIP, “MORNING JOE”)

LIZ CHENEY, FMR. VICE PRES. CHENEY‘S DAUGHTER:  If you knew that Khalid Sheikh Mohammed had information about an imminent threat on the United States, information that would result in the death of your family members, the death of people that you cared about and loved, and that if he were waterboarded, you would be able to get that information and prevent the attack, you wouldn‘t do it?  You would let him go ahead and launch the attack?

EUGENE ROBINSON, MSNBC POLITICAL ANALYST:  Well, how would I know that?  How would I know that if I .

CHENEY:  Eugene, that‘s exactly the situation these folks were in.

(END VIDEO CLIP)

MADDOW:  In today‘s Senate hearing about torture, the ticking time bomb argument sort of blew up, sort of ended.  As we mentioned earlier, one of the star witnesses today was former FBI interrogator, Ali Soufan.  He testified from behind a screen that he got valuable information from Abu Zubaydah using conventional, legal, proven interrogations methods.  Then, somebody else came in and started using those enhanced interrogation force-based techniques, that‘s when Mr. Zubaydah clammed up.

So, why waste time when the time bomb is ticking doing things that make the prisoner stop talking?  Tick, tick, tick, tick, tick.  Ali Soufan also laid out why the techniques the CIA wanted to use would be useless in a ticking time bomb scenario.  The CIA sleep deprivation plan, for example, intended to keep a prisoner from sleeping for, I don‘t know, 7 ½ days.  The argument that waterboarding works quickly falls apart on the fact that it was used 183 times in one month on one suspect, that‘s slow, that‘s not quick.  Tick, tick, tick, tick, tick.

Still, Republican Senator Lindsey Graham plowed right ahead with the ticking time bomb argument today anyway.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM, ® SOUTH CAROLINA:  Do you know a gentleman named John K-I-R-I-A-K-O-U?

SOUFAN:  Me, myself?

GRAHAM:  Yes.

SOUFAN:  No, I don‘t know him.

GRAHAM:  He said they waterboarded the guy and he broke within 35 seconds.

SOUFAN:  Last week, he retracted that and he said he was misinformed and actually he was not at the Abu Zubaydah location.

GRAHAM:  OK.  So, he just got mixed up.

SOUFAN:  He retracted that.  Yes, sir.

(END VIDEO CLIP)

MADDOW:  Oh.  Senator Graham apparently unaware that John Kiriakou‘s claims in an ABC News report have been debunked and retracted.

The ticking time bomb argument is over.  When you hear it on TV, hit mute.  When someone presents it to you, pat that person on the shoulder and say, “Sorry, let‘s talk about light rail.”  I mean, be polite it, of course, but you‘re not talking with somebody who‘s having an honest argument about torture.

Joining us now is Malcolm Nance, former master instructor and chief of training at the Navy‘s Survival, Evasion, Resistance and Escape school, better known as the SERE school.  He‘s now a U.S. government consultant on terrorism and counterterrorism.

Mr. Nance, thank you so much for joining us.

MALCOLM NANCE, FORMER “SERE” INSTRUCTOR:  My pleasure, Rachel.

MADDOW:  When you heard Ali Soufan today testify about his interrogation techniques as an FBI experience interrogator versus these force-based techniques that were reverse-engineered from some of the SERE techniques, does that resonate with you in terms of what you understand about the appropriateness of those techniques as interrogation methods?

NANCE:  Well, it resonates with me for a very particular reason.  One, the SERE program was started in the 1950s exactly because these techniques were being used against American servicemen.  The SERE program and all the techniques carried out that we call enhanced interrogation techniques—these were reverse-engineered from communists, from totalitarian states, and the Nazis.

So, of course, everything that he said about that—about bringing the prisoner in, interrogating the prisoner and then him becoming recalcitrant and resistant, that‘s exactly what we want.  And, of course, al Qaeda, of course, won by that, because they defeated the purpose of all the interrogations.

MADDOW:  In terms of the argument that SERE-based techniques, these techniques, reverse-engineered as you say from what was done by totalitarian regimes, reverse-engineered and figured out in the ‘50s—the argument has been made that because we do it to American troops as part of training it can‘t be torture, because then people like you who were an instructor at SERE could be charged with torture.

NANCE:  That‘s ridiculous on its face.  Listen, there‘s a whole class of people who I call now “torture apologists.”  And their full-time job is to go out and find spurious arguments in order to justify exactly why they violated, you know, U.S. legal code.  And, of course, the standing order from General George Washington to treat prisoners with dignity.

And so, it‘s ridiculous.  What we‘re doing is we‘re allowing a service member the opportunity to practice in a controlled environment over a few moments how to behave and how to react in order to act like Abu Zubaydah, in order for them to become resistant and for them to make sure that the techniques that are being applied to them don‘t work.

MADDOW:  On the issue of sleep deprivation, specifically, sleep deprivation is one of those things that I think is at the top of the slippery slope when people start talking about torture.  Well, sure, you don‘t want to get down to things like waterboarding or pulling people‘s fingernails out, but a little sleep deprivation never really hurt anybody.  We‘ve heard testimony that maybe some forms of mild sleep deprivation were used even before there were any new legal justifications ginned up in Washington to explain that.

What do you think about sleep deprivation in terms of its effect on prisoners in custody, whether it should be seen as part of torture?

NANCE:  Well, these are softening techniques.  All they did was they decide to bring the person up, keep him awake, whether they were going to walk him around, whether they‘re going to stand him up, whether they‘re going to give him loud music.  And what you‘re doing is softening that person.

You‘re making that person, putting him into a state where you think he‘s going to be susceptible to answer questions.  In fact, it‘s going to be even more difficult to get him to answer questions.  And that, of course, you hit them with a harsh interrogation technique right after that, whether it‘s slapping or walling or some other physical harm or waterboarding, and you think that‘s going to snap them out of it—when, in fact, that‘s the state we want you in.  That‘s where you‘re going to be least susceptible to answer honestly.  You‘ll answer gibberish.

MADDOW:  That‘s the situation we want you in if you are an American and we want you to .

NANCE:  Absolutely.  So .

MADDOW:  Yes.

Well, in the case, then, so I guess we can sort of get there, we can follow the math problem.  In the case of an actual ticking time bomb scenario, which is a faulting premise because things don‘t work out this way in the real world—would you do SERE techniques on a prisoner in that scenario?

NANCE:  No, of course not.

MADDOW:  Any of them?

NANCE:  No, of course not.  Because one, it defeats the ticking time bomb scenario, in that all the prisoner has to do is not answer the question, or, better yet, the prisoner will lie.

And once the prisoner lies—especially with al Qaeda members, let me tell you something, their ideology, they have a concept within their ideology called Al-wara wal‘bara (ph), and that is absolutely devotion to their god, but absolute disavowal and hatred of anything that‘s not their god.  Therefore, anything that they do to foil you is well within their plan.  And they take great pride in that.  And I‘m sure when he was brought back to his little cage or to his holding cell, he saw every time that he defeated us, every time he didn‘t get an answer out of us or got some gibberish out of us, he saw that as a victory.

MADDOW:  Yes.  So, you got to outwit him.

NANCE:  Well, what we‘ve done is we‘ve created al Qaeda SERE school for them.

MADDOW:  Malcolm Nance, former master instructor and chief of training at Navy SERE schools, talked to you a few times over the years about this, and every time, I‘m very grateful to have the chance to ask you these questions.  So thank you.

NANCE:  My pleasure.

MADDOW:  Just weeks after promising to make public prisoner abuse photos in the name of transparency, today, President Obama expressed new, great concern about releasing those photos.  If transparency leads to accountability, what does this lead to?  Constitutional lawyer Jonathan Turley will join us in just a moment.

(COMMERCIAL BREAK)

MADDOW:  So, President Obama has still apparently not accomplished enough in his life to warrant receiving an honorary degree from Arizona State University.  But he is nevertheless giving the commencement speech there tonight.  We will have live coverage of that commencement address here on MSNBC at 11:00 p.m. Eastern.

Plus, ahead in this hour, it is tea party 2.0 for the Republicans. 

That‘s coming up in just a moment.

But first, it‘s time for a couple of holy mackerel stories in today‘s news.

In our continuing coverage of the debate over “don‘t ask, don‘t tell,”

we brought you the story of Lieutenant Dan Choi, who publicly announced on

this show that he was gay.  Following that announcement, Lieutenant Choi

was notified that he was getting kicked out of the military.  That is the

bad news this week about gay people‘s right to serve in the military.  The

good news is from -

UNIDENTIFIED MALE:  Uruguay -

MADDOW:  Uruguay - the nation of Uruguay -

UNIDENTIFIED MALE:  Uruguay -

MADDOW:  Which is something I enjoy saying very much. 

UNIDENTIFIED MALE:  Uruguay -

MADDOW:  ... today, lifted its ban on gay people serving in the armed forces.  The ban was first imposed by a military dictatorship 30 years ago.  For what it‘s worth ...

UNIDENTIFIED MALE:  Uruguay -

MADDOW:  ... was also the first country in Latin America to legalize same-sex civil unions, which they did in 2007.  And you know what they say, as goes ...

UNIDENTIFIED MALE:  Uruguay -

MADDOW:  ... so goes the United States.  Actually, no one‘s ever said that ever, but I might start especially because that sentence starts with the word ...

UNIDENTIFIED MALE:  Uruguay -

MADDOW:  Uruguay.  And finally, Texas has an ant problem.  Biting fire ants in Texas caused the state about $1 billion a year because they messed up circuit breakers and other electrical equipment.  They also threatened some livestock.

To combat the fire ants, researchers at Texas A and M are studying are studying the prospects of releasing one of the fire ants‘ natural predator, the tiny phorid fly, in the hopes the phorid fly can control the fire ant population. 

Here‘s the totally disgusting part.  Are you ready?  The phorid fly lays eggs on the body of the fire ant.  The eggs hatch into phorid fly maggots.  The phorid fly maggots burrow inside the ant‘s head and eat its brain. 

Wait, it gets worse.  So the maggots eat the brain out of the ant, but for some reason that does not kill the ant immediately.  The ant doesn‘t have a brain anymore, it just has a head-ful of maggots, but the brain apparently isn‘t what controls the ant‘s ability to walk around. 

So even though it‘s brain dead, the ant keeps perambulating.  It keeps walking around endlessly.  It is a brainless, wandering zombie ant for about a month. 

The zombie ant‘s month of brain dead wanderings comes to an end finally when the maggots develop into full-blown flies whereupon the ant‘s head falls off and the fly crawls out and starts looking for a new ant to turn into a zombie with a falling off head.  So that‘s the study. 

Texas A and M is thinking that it might be a good idea to let those flies out in Texas to take care of the ant problem.  What could possibly go wrong?

(COMMERCIAL BREAK)

MADDOW:  Last month, the Pentagon announced that it would release dozens of never-before-seen prisoner abuse photos from Iraq and Afghanistan, photos that had been the subject of a lawsuit by the ACLU.  The president signed off on that decision to release the photos.  The release date was set for May 28.  And then today, boomerang. 

(COMMERCIAL BREAK)

BARACK OBAMA, UNITED STATES PRESIDENT:  The publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals.  In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger.  

(END VIDEO CLIP)

MADDOW:  That sounds familiar, doesn‘t it?  If you squint and don‘t really look at the screen very carefully, sort of sounds like - yes.  Is the fact that the abuse happened that‘s really the problem in terms of any potential problems for our troops overseas?  Or is the fact that the abuse was photographed that is the problem? 

An unnamed Pentagon source tells “The New York Times” today that the photos being held back now are not as, quote, “provocative” as the pictures of prisoner abuse that we‘ve already seen from Abu Ghraib.  Apparently, according to the source, they just document additional cases of the sort of abuse of prisoners we have already seen. 

That has led to speculation today about what new additional controversy or uproar these images could cause that hasn‘t already been caused by the release of the Abu Ghraib photos. 

Unless, of course, the new controversy or uproar would be not about the specific things done to specific prisoners in these images, but rather about the fact that there are hundreds of more images of the same kind of abuse, which would lend credence to the idea that this wasn‘t just a small number of individuals carrying out freelance rogue abuse. 

(BEGIN VIDEO CLIP)

OBAMA:  Our understanding of what was carried out in the past by a

small number of individuals -

(END VIDEO CLIP)

MADDOW:  By a small number of individuals.  The uproar or controversy that could be created by hundreds of more Abu Ghraib-style images is, of course, if they showed by sheer magnitude that this wasn‘t a small number of individuals.  That, of course, would create a clamor to investigate, to trace the abuses to their official origins.  Is that what the Obama administration is trying to avoid? 

Joining us now is Jonathan Turley, professor of Constitutional Law at George Washington University Law School.  Professor Turley, thank you for joining us tonight.  

JONATHAN TURLEY, PROFESSOR OF CONSTITUTIONAL LAW, GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL:  Hi, Rachel.  

MADDOW:  I am speculating here, as you just heard about what might be the thing that they are worried about.  What do you think explains the 180-degree turn from April 23rd when the Pentagon said, “Well, we‘ll release these things,” to today when we find out there‘s all these concerns and we want them.

TURLEY:  Well, it‘s perfectly Orwellian, you know,  because we have, once again, the Obama administration, Obama himself, making statements and then doing the diametrically opposite thing in policy. 

It‘s like saying no one is above the law but blocking any special prosecutor or investigation of torture.  You know, on the freedom of information act in January, he said, “We will not allow material to be withheld just because it would be embarrassing to the country.” 

And yet he just did that today.  In his list of justifications today, they virtually came directly out of the second circuit‘s opinion.  The second circuit rejected all these arguments. 

What President Obama is saying today is diametrically against the federal law.  And if he succeeds, instead of having a transparent government, he would create this opaque government where you could virtually see nothing, because the government could simply say, “Well, this is going to be embarrassing.  Whatever is embarrassing to us injuries national security.” 

It is a perfectly horrible argument to make in court, which is why many lawyers told the court that they would stop, that they would yield to federal law.  So it‘s an incredibly dark moment for civil libertarians.  It‘s just more evidence that this administration is becoming the greatest bait and switch in history.  Then, you know, he‘s morphing into his predecessor.  

MADDOW:  When I talked to Gen. Ricardo Sanchez just a week or so ago, about prisoner abuse in Iraq, and of course, he was the commanding general in Iraq when the Abu Ghraib incident happened, that we‘ve seen all the photos from. 

Gen. Sanchez explicitly linked the “dump the Geneva Conventions” decision, the “take the gloves off interrogation” instructions, the torture techniques that were developed apparently in Washington.  He explicitly linked those things to what happened to prisoners in Abu Ghraib. 

He says those official decisions set the stage for what we saw Lynndie England and Charles Graner and all those people do.  Is that what they don‘t want to investigate?  Because if that‘s the case, if it‘s a bigger pattern, it has to have some official origin and therefore has to be investigated? 

TURLEY:  Rachel, I think that you‘re asking the exact questions that need to be asked, in that the problem with having a lot more pictures is it completely disassembles our earlier argument about Abu Ghraib.  We portrayed a small group of people as basically hicks with sticks and we all knew they weren‘t. 

We all knew that this type of culture doesn‘t just spontaneously occur in some small cell block.  It has to be nurtured.  It has to be encouraged.  And what these other photographs indicate is that those people that we tried so long ago and made the scapegoats here, and they legitimately should be sent to jail.

But the idea that they were rogue operators is obviously wrong, if there are hundreds of other photos where they weren‘t involved in those photos, or involved other prisoners.  

MADDOW:  The ACLU today said that when these photos see the light of day, they said, quote, “The outrage will focus not only on the commission of torture by the Bush administration but on the Obama administration‘s complicity in covering them up.” 

Is the ACLU right to expect that these photos will come out eventually?  You‘re saying that Obama‘s arguments essentially diametrically oppose what the second circuit has argued here.  Do you think these photos will eventually come out? 

TURLEY:  I do believe they will come up because I believe Obama is dead wrong on the law.  I think the Justice Department has been wrong all along, that you can‘t have our system of transparency, of the Freedom of Information Act, and allow the government to withhold as a matter of national security stuff simply because it embarrasses us. 

And I think if you really want to shut down our enemies, it‘s not withholding a few more pictures to add to the library of existing pictures.  If you want to shut them down, you need to show we‘re not hypocrites, that we‘re not hiding our past sins and we‘re not hiding from responsibility. 

Instead, what Obama did today is he reaffirmed what al-Qaeda‘s been saying, that we are a nation of hypocrites and we only adopt principle when we apply it to other people.  And so I think the terrible thing is that Obama has really allied himself in this with the worst possible policy, the worst possible approach to government. 

And I think that the ACLU will ultimately prevail, and maybe that‘s what the Obama administration wants politically - is to be forced to release these photos as a political measure.  But by doing this, by putting this fight, by reversing its earlier statement to the court, it makes a mockery of the system.  It makes a mockery of this country. 

MADDOW:  Jonathan Turley, Constitutional Law professor at George Washington University Law School, I think that last strategic point is spot on and it will be interesting to see how this plays out.  Thanks for your time tonight, Jon.  

TURLEY:  Thanks, Rachel.  

MADDOW:  The Republican Party is staging another tea party, and they are perfecting the idea, ensuring that this time, they will be even more effective than they were last time.  Because this time, the tea party is going to be on the phone.  Feel the burn, Democratic Socialist Party.  More with Chris Hayes, coming up.

(COMMERCIAL BREAK)

MADDOW:  As the Republican Party continues to search for meaning in the political minority, Louisiana Senator David Vitter has finally abandoned his attention-seeking, one-man fundraising blockade of President Obama‘s nominee to head FEMA. 

The Senate has confirmed Craig Fugate now to be the new head of the Federal Emergency Management Agency.  Fugate led Florida‘s hurricane response for the last eight years.  He was appointed by Republican Governor Jeb Bush.  He‘s widely respected by Democrats and Republicans alike as a seasoned emergency management pro. 

And now, just two weeks before hurricane season, thanks to David Vitter, Mr. Fugate will finally be able to get to work.  And David Vitter, of course, will still have to run for re-election against an adult film star, whose profession reminds everyone that he was a family values demagogue by day and client of the D.C. madam by night. 

And an opponent, whose name, Stormy Daniels, reminds everyone that Vitter is the reason we didn‘t get a new FEMA director this year until two weeks before hurricane season.  Stormy.  Her name is stormy.  You really should have thought this through, Senator.

(COMMERCIAL BREAK)

MADDOW:  We have breaking GOP intra-party warfare news tonight, a new development in the ongoing battle over whether the Republican Party should moderate and broaden its appeal, or go with the base it on the base, super pure right-wing, shrill, name-calling thing. 

Latest news indicates that they‘re sticking with the name-calling thing.  “Politico.com” is reporting that a resolution to re-brand the Democratic Party as the, quote, “Democrat Socialist Party,” is expected to be approved at an emergency meeting of the Republican national committee next week. 

RNC chairman Michael Steele has objected to both the meeting and the “Democrat Socialist” re-branding resolution.  In a memo last month, Steele said that while he agreed that the Democrats are, quote, “marching America toward European-style socialism,” he said, “the resolution would give the media and our opponents the opportunity to mischaracterize Republicans.” 

Yes, there is a danger that Republicans will be mischaracterized as name-calling, when they official call for the Democratic Party to change its name.  But on this point, Michael Steele has apparently been overruled. 

That said, the party has also reportedly dropped plans for a resolution that would have criticized Republican Senators Snowe and Collins and former Republican Senator Specter for supporting the stimulus package.  So congratulations, moderate Republicans who are still remaining.  Your party has stopped just short of publicly dumping on you. 

Meanwhile, deep on the conservative end of the GOP‘s metaphorical battlefield, Governors Mark Sanford of South Carolina and Rick Perry of Texas are hauling out their own secret weapon tomorrow, the Tax Day tea party.  Except this time, it‘s not on tax day.  Although, you know, tomorrow is C.C. DeVille‘s birthday.  He was the guitarist for Poison, and he liked to party. 

Also this time, it is a phone call instead of an actual gathering.  The Republicans Governors‘ Association is calling this the fight for freedom call.  They say the expect thousands of people to dial into Tea Party 2.0 tomorrow night. 

Of course, the real tea parties weren‘t a rousing success for either governor.  Gov. Perry was moved to suggest that Texas should secede from the Union.  And Gov. Sanford is still fighting with even the Republicans in his own state legislature who would rather not turn down badly, badly, badly needed stimulus money. 

So given that sort of failure, why not do it again?  Except this time, let‘s do it over the phone on a completely arbitrary date.  Why not? 

Joining us is Chris Hayes, Washington editor of “The Nation” magazine.  Chris, thank you so much for coming on the show.  Nice to see you. 

CHRIS HAYES, WASHINGTON EDITOR, “THE NATION” MAGAZINE:  Nice to see you.  I‘m grateful for the Poison trivia. 

MADDOW:  C.C. DeVille, man.  That‘s got to be the hook.  I mean, there is no obvious date hook other than C.C. DeVille‘s birthday.  So why are they calling it a tea party?  Is tea party becoming the new brand name for conservative politics? 

HAYES:  Yes.  The sense I get when I talk to conservatives and if you read conservative blogs from the kind of activist class is that they think the tea parties were a tremendous success.  They rallied the base.  They got a lot of attention.  Fox News was onboard.  Everyone was talking about it.

And this was a sort of high point, maybe the opening chapter of the kind of book that the right is rising which is going to be this kind of resurgent movement of American conservatism.  I think they really want to embrace it.  They want to sort of carry it forward.  I don‘t think they quite realize that it hasn‘t been resonating particularly well politically for them. 

MADDOW:  Well, the other issue about the tea party thing is that, it sort of feels like they need the visuals.  I mean, can a Tea Party 2.0 really resonate without actual tea bag props and the “Obama is a socialist” signs and “Chairman Mao-bama” t-shirts and all those things? 

HAYES:  Well, it will certainly be less fun, I think.  I think that the real think is that they‘re trying to - what you see right now is the right trying to create this kind of ersatz grassroots movement that is in some way based on what happened among the center left and progressive activists during the long Bush years when there was a lot of, you know, activity in the blogosphere and Move On and groups like that kind of came together. 

But it is being done inside the confines of a movement that is very much leader-focused, very much kind of has a sort of authoritarian streak.  And so, there is always this kind of awkward combination between this kind of top-down sort of, you know - sort of events like, you know, governors are going to talk to you on the phone.  And this impulse is sort to create some kind of grassroots resistance. 

MADDOW:  Chris, when the story first broke a resolution to re-brand the Democratic Party as the “Democrat Socialist Party” - it‘s got rat in it.  I mean, it sounds like it‘s the kind of thing that I would make up about the Republicans and then apologize for.  But now, it‘s actually going to pass.  I just have to ask your assessment about how that‘s possible. 

HAYES:  You know, it makes you wonder who is voting at the RNC.  I mean, I think when you - what happened is that, you know, the coalition has shrunk enough that the people that essentially dominate right now are really, really, really hardcore right-wingers. 

And I think they really do believe Barack Obama is a socialist.  The Democrats are marching us on the road to serfdom.  I mean, I think that they think that.  And in some ways, I‘m always grudgingly respectful of how absolutely tone deaf they seem to the political ramifications, how tone deaf they are to the unpopularity of the views they are espousing, that this is what they think - this is the best foot they think they should put forward. 

You know, it‘s the real deal, like you have a real extremist calling the shots inside the Republican Party right now.  And I don‘t see that, you know, redounding to their benefit politically. 

MADDOW:  No.  But it is nice to have it pretty unvarnished and un-apologized for. 

HAYES:  Yes.

MADDOW:  It‘s very clarifying, at least.  Chris Hayes Washington editor of “The Nation” magazine.  Thank you so much for joining us tonight, Chris.  Good to see you. 

HAYES:  Thank you, Rachel. 

MADDOW:  Coming up on “COUNTDOWN,” Keith Olbermann talks to the chairman of today‘s big dramatic torture hearing in Washington.  Sen.  Sheldon Whitehouse will be joining Keith. 

Next on this show, my friend, Kent Jones, gives us the lowdown on Sarah Palin, author. 

(COMMERCIAL BREAK)

MADDOW:  We turn now to our Alaska governor literary ambition correspondent Kent Jones.  Hi, Kent.

KENT JONES, POP CULTURIST:  Hi, Rachel.  Well, Sarah Palin did sign a

deal for a memoir about her life.  And while that will be interesting, I

wish she would turn her expertise to so many other topics like for instance

-

(BEGIN VIDEO CLIP)

(voice-over):  How about sports?

GOV. SARAH PALIN (R-AK):  This race is part of the Gillingham‘s Beaver roundup.

JONES:  Cartography -

PALIN:  You can actually see Russia from land here in Alaska -

JONES:  Communications. 

PALIN:  I‘ve read most of them again with a great appreciation for the

press, for the media -

KATIE COURIC, CBS CORRESPONDENT:  Like what specifically?  I‘m curious

-

PALIN:  All of them, any of them that have been in front of me over all these years. 

JONES:  Gender studies -

PALIN:  You know the difference between a hockey mom and a pit bull - lipstick. 

JONES:  Jurisprudence. 

COURIC:  What other Supreme Court decisions do you disagree with? 

PALIN:  Well, let‘s see -

JONES:  Animal husbandry -

PALIN:  Certainly, we‘ll probably invite criticism for even doing, too.  But at least, this was fun. 

JONES:  Or even, composition and theory. 

(MUSIC)

Get busy, Sarah.  We‘ll clear some room for you on the shelf. 

(END VIDEO CLIP)

MADDOW:  Oh, I had forgotten about the flautist -

JONES:  Oh, it‘s lovely.

MADDOW:  The flautist nature of Gov. Palin.  Thank you, Kent.  I have a cocktail moment for you that is a baseball cocktail moment. 

JONES:  Oh, excellent. 

MADDOW:  You know, as if things were not tough enough for the Dodgers right now with the Manny problem happening, last night in their game against the Phillies.  This one guy, Jason Worth(ph) of the Phillies stole four bases in one game, three of them in one inning. 

JONES:  Whoa.

MADDOW:  Yes.  Here he is going from first to second.  There he goes. 

JONES:  And he‘s in. 

MADDOW:  Oh, he‘s in.  A few pitches later, he goes -

JONES:  Goes for third -

MADDOW:  Head first to the third.  Then when the pitcher and catcher least suspect it, he makes a run for home plate.  Jason Worth - sorry, Dodgers. 

JONES:  Go for it. 

MADDOW:  Thank you, Kent. 

JONES:  Sure.

MADDOW:  Thank you at home for watching.  “COUNTDOWN” with Keith Olbermann starts right now. 

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

END   

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