updated 5/29/2009 3:37:53 PM ET 2009-05-29T19:37:53

Guests: Eugene Robinson, John Dean, Chris Hayes

(BEGIN VIDEOTAPE)

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

Fortunately, the right-wing is not going to remain calm when the situation calls for panic.

Gingrich: “White man racist would be forced to withdraw.  Latina woman racist should also be forced to withdraw.”

Rove: “I know lots of stupid people who went to Ivy League schools.” 

I bet you do.

“And it‘s too guilt to pronounce her name.  And her favorite meal might influence her judicial decisions.”

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RUSH LIMBAUGH, RADIO TALK SHOW HOST:  She‘s a bigot.  She‘s a racist.

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OLBERMANN:  Its rage against progress and diversity unfettered, the right-wing goes nuts.  The center piece—a quote pulled out of context about how a Hispanic woman‘s life experience might make her judgment better than a white man‘s, or how it might not.

Prop 8 bigger than politics: A federal suit now to overturn the California vote.  A suit filed by David Boies and Ted Olson—the opposing lawyers in Bush v. Gore.

Fredo blames the Rosato brothers or maybe Frank Pentangeli.  “Torture? 

I didn‘t authorize torture.  I wasn‘t even at the Justice Department then. 

I was only White House counsel.”

The Mancow aftermath: He field-tests his belief that waterboarding is not torture.  Not only does he admit he was wrong, he passes the message along.

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MANCOW MULLER, RADIO TALK SHOW HOST:  Sean Hannity called me and said, “It‘s still not torture.”  I said, “Sean, he‘s a friend of mine, it is torture.”

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OLBERMANN:  How this debate just changed?  With Rachel Maddow.

And “Congressman Gone Wild”: First, he was talking about Trojan horses, and now it‘s—

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REP. JOHN CULBERSON, ® TEXAS:  If we provide civil rights protection to somebody based on private sexual behavior—well, the Constitution, the 14th Amendment, says we have to provide equal protection.

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OLBERMANN:  Equal protection, Congressman, for private sexual behavior?  What the—

All that and more—now on COUNTDOWN.

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CULBERSON:  I just want to make sure this is on the record.

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OLBERMANN:  Good evening from New York.

“When a case comes before me involving, let‘s say, someone who is an immigrant,” said the nominee for the Supreme Court, “I can‘t help but think of my own ancestors because it wasn‘t that long ago when they were in that position.  I have to say to myself and I do say to myself, you know, this could be your grandfather.  This could be your grandmother.”

“When I get a case about discrimination,” the nominee continued, “I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender and I do take that into account.”

Our fifth story on the COUNTDOWN: The smoking gun, the damming confirmation of reverse racism and reverse sexism from Judge Sonia Sotomayor?  No, those quotes were from then-Supreme Court nominee, conservative judge, Samuel Alito, during his confirmation hearing in January 2006 when he was answering a question from Republican Senator Coburn.

So conservatives predicating their attempt at character-assassination of Judge Sotomayor on those exact points?  You can collect your backsides from the coat check after the show because they‘ve been handed to you.

Karl Rove trying a different tact today, that a woman who graduated second in her class at Princeton and then from Yale Law must be dumb, under the logic that, quote, “I know lots of stupid people who went to Ivy League Schools.”  Ann Coulter.  And this from the guy who just told “The Chicago Tribune” of his former boss, C-minus student at best, President Bush, quote, “The myth was that this guy, who was a Yale history grad and a Harvard MBA, was not smart.”  You don‘t get to have it both ways.

It gets worse.  The former Republican governor of Arkansas, Mike Huckabee, is saying that Judge Sotomayor‘s confirmation, quote, “would be a direct affront of the basic premise of our judicial system.”  “Judge Maria Sotomayor,” he called her.

Wow.  Way to burnish your credibility, “Governor Huckleberry.”

In a Twitter post, Newt Gingrich is calling on Judge Sotomayor to withdraw because she is a Latina woman racist.  Quote, “White man racist nominee would be forced to withdraw.  Latina woman racist should also withdraw.”  As evidence, the former Republican speaker citing out of context a 2001 speech in which he claims the Supreme Court nominee said that her experience as a Latina woman would make her better than a white man.

Judge Sotomayor having said no such thing, the full context of her remarks to the University of California-Berkeley Law School is making clear that what Judge Sotomayor actually said was that a good judge should be fully aware of his or her formative experiences in order to avoid being prejudiced by them.  “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn‘t lived that life.  Each day on the bench, I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion.

I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extend that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.  I can and do aspire to be greater than the sum total of my experiences.”

So, she was saying that being who she was might help her rulings or might hinder them.

Instead of reading that part of her speech, Senate Republicans choosing to focus on the part where the judge talked about the role Puerto Rican cuisine played in her heritage.

“The Hill” newspaper writing today, “This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine such as patitas de cerdo con garbanzo—pigs‘ tongue and ears—would somehow, in some small way influence her verdicts from the bench.”

Speaking of that delicacy, a little bit of what the shrinks call projection from the rapidly declining Limbaugh.

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LIMBAUGH:  She‘s got a—she‘s an angry woman.  She‘s got a—she‘s got a—she‘s a bigot.  She‘s a racist.  In her own words, she‘s the antithesis of a judge.  She is the antithesis of justice—in her own words.  She does not deserve to be on the U.S. Supreme Court.

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OLBERMANN:  This guy is just freaking nuts now.

Time now to call in our won Eugene Robinson, associate editor and Pulitzer Prize-winning columnist of “The Washington Post.”

Good evening, Gene.

EUGENE ROBINSON, MSNBC POLITICAL ANALYST:  Good evening, Keith.

OLBERMANN:  Before they launched this attack on her empathy or took the 2001 quote out of context, did anybody in the GOP bother to check to see if a conservative nominee like, you know, Justice Alito, had said exactly the same thing?  I mean, Glenn Greenwald at Salon found that on the Internet, presumably even a Newt Gingrich could tap the keyboard with his cloven hoof to find it, couldn‘t he?

(LAUGHTER)

ROBINSON:  Well, you know, it seems that nobody looked for such a quote.  But my suspicion is that they wouldn‘t have recognized it for what it was if they‘d have come across it.

I mean, it‘s—you know, the point being made by Justice Alito and presumptive-Justice Sotomayor was basically the same—pointing out an obvious fact, we are the sum total of our experiences.  We aspire to be more.  We aspire to transcend that.

But it is ridiculous to think that, you know, my having grown up in South Carolina, or your having going to Cornell, or whatever, wouldn‘t affect who we are.  And who we are affects how we do our jobs.

This is—this is about as axiomatic as it can get.  Except—now, it jumps out at some people when it is a Latina saying that.  But when a white male says it, it‘s—it doesn‘t register.  It‘s, well, of course.  Of course, those are the standards approved experiences to have, I suppose.

OLBERMANN:  But the way she said it is exactly what you want from a judge.  A judge saying, “Look, this is going to influence in my decisions, influences what I‘m going to eat or influences what I‘m going to wear today and I have to check it.”  She said “check it.”  She wants to be more .

ROBINSON:  Exactly.

OLBERMANN:  And that part is left out when they should be standing up and applauding her.

ROBINSON:  Exactly.  They should be standing up and applauding her for a number of the things they‘re criticizing her for—including, for example, the New Haven firefighters decision which—as I read it - is actually a portrait of judicial restraint.  We—I didn‘t think we wanted unelected judges telling the city officials of New Haven what to do, would just calling balls and strikes, and saying whether or not what they did is permitted by law.  And that‘s what she did in that case.  But again, it‘s not seen in that way by her critics even though that‘s what it was.

OLBERMANN:  There is another level of farce to this, I think, Gene.  And I‘d like your perspective on it.  Four years ago, we were being told that Alberto Gonzales had to be confirmed as attorney general for Mr. Bush; and if you questioned what were truly, you know, sketchy credentials, you were an anti-Hispanic racist.

And some of the same buffoons who are now trying to sell a woman who is—is right now a victim of racism—as the racist in the equation, and who themselves, Limbaugh and Beck and Gingrich—and I‘m calling them each a racist right here—they are racists who are now trying to sell themselves as victims of racism.  And yet, they were exactly on the opposite role with you, just as recently as the Alberto Gonzales confirmation hearings, down to the specificity of the ethnicity.

ROBINSON:  I know.  It is incredible, Keith.  This is—this is not some sort of bizarre world that we suddenly landed in.  This is—I mean, go all the way back to the Clarence Thomas nomination hearings and how criticizing his credentials and also his record, and the whole Anita Hill thing.  That was a high-tech lynching and portrayed as racial animus—whereas, this is a woman who has more judicial experience than any nominee for the court in about 100 years, more federal judicial experience.

She is enormously qualified in every way.  And, you know, it‘s just—it boggles the mind that that contradiction isn‘t seen by those who are guilty of it.

OLBERMANN:  And, by the way, I just saw this out of the corner of my eye.  CNN, just at this hour, ran the 2001 quote and pull it out of context.  So, it only reads the first half of the quote.  There‘s no context to it whatsoever, and they‘re doing the news.  And over here, we‘re doing some sort of joke shop.

ROBINSON:  Yes.

OLBERMANN:  If this were a white male who had graduated second in her class at Princeton and then gone on to Yale Law and spent 11 years on the bench of the second circuit, would anybody be questioning her intellect or how she got there?

ROBINSON:  No.  It would be insane to question the intellect from

someone, you know, second in your class at Princeton.  Come on.  This is a

this is obviously an enormously bright woman, as you would expect.

               

But I‘m predicting, confidently, that at some point, someone is going to say that, “Well, you know, she‘s very articulate.”  Even though we have a problem with her, they‘ll call her articulate, as if they‘re shocked that, you know, someone who was from Yale, a federal judge, can form a complete sentence.  But mark my words, it‘s going to come.

OLBERMANN:  Not to be an advertisement for CNN, but they now have Tom Tancredo on there talking about this.  And he has the credibility of a flounder on this subject.

ROBINSON:  Oh.

OLBERMANN:  The Pulitzer Prize-winning “Washington Post” columnist, Gene Robinson, also of MSNBC—as always, when it‘s—also of MSNBC—great thanks, Gene.

ROBINSON:  Great to be here, Keith.

OLBERMANN:  Periodically, bipartisanship will still fling off the Limbaughs and the Gingriches and the other racists and the phobics and get back on its feet and say, “This is too damn important for your children.”  The two lawyers who fought on opposite sides of the Supreme Court case Bush v. Gore, joining forces now to fight against California‘s ban on gay marriage.  David Boies, who represented Vice President Gore, and Ted Olson, who represented Governor Bush and would later become a solicitor general, today, announcing their partnership in filing suit in federal court seeking to have Prop 8 overturned.

You will recall that yesterday, the California Supreme Court ruled to uphold the controversial ballot measure that defined marriage as solely between a man and a woman.  The court letting stand however the unions of 18,000 same-sex couples who had married before the measure had been passed.  Boies and Olson are arguing that it is not a question of state law but of federal law.  To quote Mr. Olson, “It‘s not about liberal or conservative, Democrat or Republican, we‘re here in part to symbolize that this case is about equality rights guaranteed to every American under the United States Constitution.”

Let‘s turn now to Nixon White House counsel, John Dean, also, of course, former associate deputy attorney general, now of FindLaw.com columnist and the author of both “Worse than Watergate” and “Broken Government.”

John, good evening.

JOHN DEAN, FMR. NIXON WHITE HOUSE COUNSEL:  Good evening, Keith.

OLBERMANN:  As apathetic as the attacks on Judge Sotomayor might be at the moment, this is heartening stuff here, I would think to you, especially.  That these two active partisans saying, you know, no, some things really do transcend partisanship.

DEAN:  It‘s delightful.  It‘s very pleasant to see two intellectually honest men declare this what it is, which is a civil rights issue.  It shows the outreach of the Republican right on, particularly, the religious right, to make this into a wedge issue, notwithstanding the constitutional implications of it.  So, it‘s delightful to see these men get together on a common cause.

OLBERMANN:  And the status of these two men within the legal community, what does that imply about the constitutionality of Prop 8 and other valid initiatives in theory or in practice that might take a specific right away from a specific group?

DEAN:  Well, it speaks very strongly to it, that if you honestly analyze what‘s going on, that indeed there is discrimination, there is a failure to comply with the equal protection clause of, certainly, the federal Constitution is what they‘re going to argue here.  It certainly applies in many state constitutions as well.  So, I think that you couldn‘t have a stronger team to present this issue, and we‘ve got to applaud them for bringing the case.

OLBERMANN:  Specifically relating to the presentation and the team, John, there‘s a statement out tonight from the ACLU and several LGBT legal organizations pleading to others not to file federal lawsuits about this, fearing that it could set back the cause of same-sex marriage because there‘s a fear that the Supreme Court would not yet be ready to rule in favor of same-sex marriage.

Does that explain why we have not seen federal suits prior to this one?

DEAN:  Well, it certainly might explain why the ACLU and these other groups have not filed federal cases in the past because there is a real danger, there is a risk involved in what Olson and Boies are doing.  It will affect a lot of lives if indeed it doesn‘t go well.  They‘re in a circuit that they should prevail in.  It‘s a case that should ultimately go to the Supreme Court, and so, it raises the issue of whether the court is ready or not.

The ACLU and these other organizations have been going state by state. 

They‘ve been using state legislators.  They‘ve been using the ballot.  They‘ve been gathering information when they litigate, scientific information, to refute some of the absurd arguments that are made in these cases of same-sex marriage and their implications.

So, I think their caution and concern is well-founded and they‘re worried that going directly to the Supreme Court at this time, way before the issue might be ready for an institution that is not a cutting-edge institution, might be premature.

OLBERMANN:  Speaking of the cutting edge qualities to it and what the makeup of this Supreme Court is going to be—is Prop 8 likely to interact with the Sotomayor confirmation process?

DEAN:  I doubt it.  I—you know, she may be asked a question, I think she‘d take the traditional position because it‘s an issue that‘s likely to be litigated before the court.  She‘s not going to address it, although it‘d certainly be thrilling if she would—because, I think, based on her rulings in general as a circuit court judge and district court judge, she‘s very fair.  She believes in the equal rights of all, and she might well give some hint.  But I think that would be a negative for her if she did.

OLBERMANN:  John Dean, author of “Broken Government” and “Worse of Watergate” and a long time friend of our show—great thanks for that and great thanks for your time tonight, sir.

DEAN:  Thank you, Keith.

OLBERMANN:  Funny doggone thing about Alberto Gonzales—once considered a potential Bush nominee to the Supreme Court—that he would suddenly reappear during debate over a Hispanic nominee to the Supreme Court and debate over torture.  George Bush‘s principle legal enabler is now saying he had nothing to do with the authorization of torture because he was at the White House while the terrible old Justice Department did all the torture memo-writing.  Would the last Bush appointee fleeing for the hills, please turn off the lights?

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OLBERMANN:  The way it‘s going, soon, only Dick Cheney will even admit that he served in the Bush administration.  Fredo, Alberto Gonzales, who ordered the Justice Department memos that rationalized torture, actually says he had nothing to do with authorizing torture because he didn‘t work at the Justice Department then.  Genius.  Genius, I told you.

Later, Rachel joins us.

One torture denier changes tune after bitter personal experience. 

Does that change the broader debate?

And what to do with the detainees at Gitmo?  “What else,” says a guy on fixed news, “Kill ‘em.”

Worst Persons is ahead on COUNTDOWN.

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OLBERMANN:  The nation‘s former top law man, Alberto Gonzales, has been asked whether he‘s afraid he could be in legal jeopardy right now.  He wouldn‘t answer—but in our fourth story tonight—as if he does fear he is in legal jeopardy, Mr. Gonzales tried to blame the Justice Department for authorizing torture.  Not when he was in charge that have Justice Department, no, no, before that.

Gonzales was asked whether he was involved in any of the DOJ legal advice authorizing torture while he was still White House counsel, quote, “What I can say is that I worked at the Department of Justice ensuring that legal advice was provided.  But at the end of the day, it‘s the responsibility of the Department of Justice to provide the legal guides on behalf of the executive branch.”

But at the beginning of the day, it was the executive branch, him specifically, who told the DOJ to authorize the torture.

On January 22nd, 2002, Assistant Attorney General Jay Bybee wrote a memo declaring the Geneva Convention null and void.  This was not Bybee‘s idea.  The memo was address to White House counsel Alberto Gonzales.  And it begins, quote, “You have asked for our office‘s views concerning the effect of international treaties and federal laws and the treatment of individuals detained by the U.S.”  Three days later, Mr. Gonzales agreed with that memo in a memo of his own to the president.

And the notorious so-called “first Bybee memo” of August of that year defining torture down was also addressed to White House counsel Alberto Gonzales.  It begins, quote, “You have asked for our office‘s views regarding the standards of conduct under the convention against torture and other cruel, inhuman and degrading treatment or punishment.”

That seminal memo redefining torture was prepared less than a week after Bybee consulted with Alberto Gonzales.  According to Condoleezza Rice, the DOJ‘s legal advice, quote, “was being coordinated by the counsel to the president, Alberto Gonzales.”

And when the CIA tortured Abu Zubaydah even before the DOJ authorized it, according to a report from NPR last week, the CIA got its permission directly from the White House—each time, in almost daily e-mails from Alberto Gonzales.

Let‘s turn now to Chris Hayes, Washington editor for “The Nation” magazine.

Chris, thanks for your time tonight.

CHRIS HAYES, THE NATION:  Thank you, Keith.

OLBERMANN:  What does it say when the question is—whether he fears he is in legal jeopardy and the top notch, burnished legal mind of Alberto Gonzales chooses not to deny it?

HAYES:  Well, I thought it was interesting that he didn‘t go out of his way to deny it.  And I think it shows that—I mean, one of the things that‘s satisfying in some respect about the interview with Gonzales is it shows there is some wariness there.  There is some conception that they aren‘t just going to get off scot-free.

Now, whether that‘s going to—that means they‘re going to be dragged before Congress or there‘s going to be some sort of independent body that‘s commissioned, I think what you‘re seeing from Gonzales—it‘s the first time you‘ve seen this crack in the wall solidarity that has come out of a former Bush official associated with the policy.

OLBERMANN:  But how far do you think that crack goes?  Because, as these various congressional probes go on and more and more documents are released, how much of a chance is there that Gonzales actually does—in the more colloquial use of the term—crack?  I mean, does he start throwing out blame against David Addington, Cheney‘s counsel, or Cheney himself, in an effort to save himself?

HAYES:  Well, you wonder.  I mean, one of the reasons that I think some kind of sustained inquiry is necessary is precisely because, as long as there isn‘t one, we won‘t—we won‘t know what the principles know.

And it‘s totally possible that under those conditions and under oath and when people make their own computations of their own self-interest, and they think, “I don‘t necessarily be—I don‘t want to be the one that sort of be in the ditch for this policy that I was kind of implementing but wasn‘t directing,” that you might see people turn on each other and we might have a full airing of just exactly what went on.  That really is the key thing.

OLBERMANN:  Plus, if the “godfather” is in fact some sort of biblical-like containment of prophecy regarding the Bush administration, it has to be Fratto.  So, anyway .

(LAUGHTER)

HAYES:  That‘s right.

OLBERMANN:  Can—back to reality—describe and explain, if you would, the difference in the tone here between Mr. Gonzales and Mr. Cheney on the subject of defending torture.

HAYES:  Well, that‘s fascinating to me.  I mean, the difference is the difference between Cheney who is clearly one of the architects, if not the principle architect of the policy, and Gonzales who was essentially a henchman, a lackey, someone who was doing what was directed by the office of the vice president, and by David Addington largely.  I mean, if you believe the accounts—most of the accounts that have come out about the interplaying and bureaucratic infighting in the office, that‘s the nature of it.

And what you see is that he‘s not, unlike Cheney who is completely unbowed, completely unapologetic, Gonzales seems far less willing to sort of brag about the role that he played in this whole things.  And I think that is, at least, some small silver lining that the policies that were implemented during that period haven‘t been so thoroughly normalized that he thinks that‘s the kind of thing that he could kind of leap to claim credit for.

OLBERMANN:  But, on the other hand, with him saying that these were the DOJ‘s responsibility, these opinions, to what extent is he sort of waving a red flag to the former DOJ lawyers or even to John Ashcroft, who was the attorney general who preceded him in that post, essentially daring them to reveal the true role of Alberto Gonzales in those opinions—kind of like we lay it out at the start of the segment here?

HAYES:  Right.  It‘s—I don‘t know how much thought he‘s given it.  I think he‘s trying to throw it back, less on Ashcroft and more on Bybee and John Yoo, who were the two people who were—I mean, it was Yoo who was basically writing the memos and Bybee putting his name on it.  He‘s trying to throw it back in their direction and these are people that everybody has kind of associated with the policies because Bybee‘s name is on the memo and because Yoo had been so outspoken in both internal accounts and since the administration ended.

So, I think, he‘s just trying to direct people back in the direction of blame on these two names that have been floating around in press accounts.

OLBERMANN:  But, if every memo begins with you—and it‘s Y-O-U, not Y-O-O—have asked for our office‘s views, that boomerang is going to hit Mr. Gonzales and not Mr. Bybee, one would think.  In any event .

HAYES:  No, it‘s clear that it was emanating from the White House.

OLBERMANN:  Chris Hayes of “The Nation”—thank you, Chris.

HAYES:  Thanks, Keith.

OLBERMANN:  Remember the story yesterday about the guy in China stuck in a traffic jam because a man was threatening to jump off the bridge?  Here‘s video of how the man decided to resolve the dilemma his own self.

And, the Sotomayor hits just keep on coming.  The crap is coming down so heavily that you feel like you need a hat.  But one guy—one guy has the dumbest reason to oppose this judge‘s nomination and he is tonight‘s Worst Person—ahead.

(COMMERCIAL BREAK)

OLBERMANN:  Bests in a moment.  And what Elvis got from Dr. Nick is now available without a prescription.  Hey, everybody.

First, on this date in 1911 was born the legendary actor Vincent Price.  While he is almost exclusively remembered now for horror roles, he basically played every lead character ever dreamed up by Edgar Alan Poe.  Price was also outstanding as a southern gigolo in the film noire classic “Laura.”  And you ain‘t seen comedy until you‘ve seen him in an otherwise horrible 1950s picture called “Champagne For Caesar.”  In that one, Price plays a soap executive who periodically lapses into trances of creative genius.  Let‘s play oddball.

Speaking of creative genius, back in Guangjou (ph), China, where last night we told you the story of the suicidal man Chen Fu Chow (ph) who was threatening to jump off this bridge and the senior citizen who decided to help him.  Today, in case you thought we were kidding, we have the video.  This is retired Soldier Lian Jiansheng (ph), frustrated with the five hour long ordeal, skirting past security, shimmying up the bridge and appearing to befriend Fu Chow.  Jiansheng then asks to shake the man‘s hand and then pushes him overboard. 

And air cushion.  Fu Chow‘s wrist and back were dinged up.  But he‘s not otherwise injured.  Both men were taken downtown and arrested, where Lian Jiansheng quoted Danny Glover from “Lethal Weapon,” telling police, I‘m getting too old for this. 

To Jacksonville, in Florida, where after torrential rain, the owners of Clark‘s Fish Camp found some flood damage in the restaurant and an alligator hiding behind the commode in the men‘s room, and with a wide stance.  Anyway, it was a young gator, pretty easily wrangled and dragged out, released back into a pond.  Hey, all employees and alligators must wash their hands.  Read the sign, pal. 

Finally, to Prague in the Czech Republic, where angry youths chucked hundreds of eggs at politician Yeri Perubeck (ph), who is chairman of the Social Democrat Party.  Wait.  Social Democrat?  But why didn‘t you say so?  Get him. 

The rally was held in advance of next week‘s European Parliamentary Elections.  According to the “Agence France Press,” Perubeck fell out of favor with young Czechs when, as the country‘s prime minister, he backed police for breaking up a youth‘s techno party in 2005.  Well, why didn‘t you say so? 

To their credit, Perubeck and his crew stayed there and took the incoming eggs until the crowd ran out.  After the speech, they wrung out their shirts and they made omelets. 

We‘ve seen the water boarding.  We‘ve heard the honorable admission from the man that he was wrong.  Will radio‘s Mancow actually now impact the debate over torture?  Rachel joins us. 

And this is not Congressman Culberson of Texas, but it sounds like him in tonight‘s WTF moment. 

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

Number three, best under-informed authority, security at an unidentified American airport.  This from the British medical journal “Annals of Oncology.”  “When the man flew from France to US shores, he was checked in at customs, ID, passport, fingerprints.  What do you mean, no fingerprints?  The passenger had been on a drug called Capacetabine (ph), a follow up treatment for chemotherapy for neck cancer.  It can cause your fingerprints to disappear.  Security did not know that.  They detained the man for hours.  That must have been some phone call to the head office.  No, sir, he has no fingerprints.  No, sir, I‘ve not been drinking. 

Number two, best 911 abuser, Raibin Osman of Hillsborough, Oregon.  He called 911 after a visit to McDonald‘s because the guy at the drive through would not give his little brother his juice box.  Mr. Osman‘s father, blaming all this on an insufficient command of English, said also, you need help from the police, you have to call the 911.  I don‘t have any other number. 

But our winner, best memorabilia item, Julians of Los Angeles.  It will be auctioning off mementos of the lives of Marilyn Monroe and Elvis Presley.  In Monroe‘s case, autographed photos, clothing and her coffee table.  In Elvis‘: jewelry, books and prescription bottles from the personal collection of his physician Dr. Nick.  Of course, the prescription bottles are only worth about a dollar a piece because there are four million of them.  Thank you.  Thank you very much. 

(COMMERCIAL BREAK)

OLBERMANN:  It was Senator Pat Moynahan‘s observation that each is entitled to his own interpretations but not his own facts.  Happens anyway, obviously.  But what happens when those facts and those interpretations suddenly align?  Our the third story on the COUNTDOWN, when a man who denied that water boarding is torture suddenly changes his mind, does it change the debate?  Rachel Maddow joins me in a moment. 

The man who had that genuine, first hand experience, WLS radio host Erich “Mancow” Muller, a refresher. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  We‘re going to do it on five, OK? 

ERICH “MANCOW” MULLER, RADIO TALK SHOW HOST:  OK. 

UNIDENTIFIED MALE:  One, two—I lied. 

MULLER:  All right, that‘s it.  That‘s it.  All right. 

Oh, god. 

UNIDENTIFIED MALE:  Mancow is soaked.  Would you consider that torture? 

MULLER:  Look, all that‘s been done to this country and I heard about water being dropped on someone‘s face, and I never considered it torture.  Even when I was laying there, I thought, this is going to be no big deal.  I go swimming; it is going to be like being in the tub.  It is such an odd feeling to have water poured down your nose and your mouth, with your head back. 

It was instantaneous.  I thought I could hold out 30 seconds, 60 seconds.  It was instantaneous.  And I don‘t want to say this.  I do not want to say this.  Absolutely torture.  Absolutely, I mean, that‘s drowning. 

(END VIDEO CLIP)

OLBERMANN:  But on this program last night, Mr. Muller expand on that, saying the experience is far worse than drowning.  Quoting him, “your brain is shut off.”  And later, “I would have said anything to make it stop.”  And he reiterated, without equivocation, the central point: that water boarding is torture, that he was telling even those who did not wish to hear it. 

(BEGIN VIDEO CLIP)

MULLER:  First of all, Sean Hannity called me and said, it‘s still not torture.  I said Sean—he‘s a friend of mine—it is torture. 

(END VIDEO CLIP)

OLBERMANN:  Let‘s turn now to a friend of mine, Rachel Maddow, the host of “THE RACHEL MADDOW SHOW.”  Good evening. 

RACHEL MADDOW, MSNBC ANCHOR:  Hi, Keith.  Nice to see you. 

OLBERMANN:  A simple admission, but a profound one from Mancow, given that the first hand experience changed his mind.  Does it change anything in the bigger picture? 

MADDOW:  I think it does change things to the extent that the debate is honest.  And to the extent that the debate isn‘t honest, it won‘t have an effect on it.  From the very beginning, this has been a debate that involved a lot of fake expertise.  From the very beginning, going all the way back to the Pentagon and the vice president‘s office deciding that they had a better idea about what they wanted to be international intelligence than what the intelligence community was telling them. 

With the CIA hiring contractors who had no interrogation expertise, because they knew better than experienced professional interrogators, like those at the FBI, how to actually get information out of people.  And then carrying on into the national debate about torture that started five years ago now, with all of these people involved in the debate, having no firsthand experience, no professional experience, no direct experience of these things, but yet being willing to substitute their own judgment for those who would actually know the answers to these moral, important, world-changing questions. 

And now Mr. Mancow does have first-hand experience of this.  That should factor into the debate.  If the debate is honest, it will. 

OLBERMANN:  And maybe the best answer on this is the I don‘t know answer.  Because when I asked him if he thought now that he could trust an answer given by someone who had been water boarded, he said, I don‘t know the answer to that.  And obviously that‘s the point.  But how do you get that point across to others who were or are where he was?  You can‘t water board everybody who believe water boarding isn‘t torture.  It totally defeats the purpose of opposing water boarding.  And you can‘t water board even the opinion makers who reinforce that idea.  The Associated Press just moved a story about this whole thing with Mancow and me and what he did. 

Is that enough?  Or how does this thing advance enough where people just question their own presumptions? 

MADDOW:  Well, on the issue of whether or not you can believe anything that anybody says under water boarding, ultimately I think the debate will have fully matured when we stop debating that point altogether.  I mean, what if you can get great answers out of people from water boarding?  What if you can get great answers out of people from dangling them out of helicopters over the open sea?  What if you can get great answers out of people from raping them or killing their children in front of them? 

Honestly, where do you stop?  The point about torture is that it doesn‘t matter if it‘s effective.  We don‘t do it.  The whole debate about effectiveness I think denies the idea that torture is beyond the pale.  The reason there are statutes against torture is not because people never thought it was effective before and we‘re doing it otherwise.  Everybody who has ever tortured did it because they thought it was effective.  Whether to discover whether or not someone was a witch or whether to discover the end of the plot on “24” or whether it was to discover whatever Dick Cheney wanted to discover in Guantanamo or Abu Ghraib. 

The point of effectiveness ultimately will be left behind when the debate returns to its rational foundation. 

OLBERMANN:  Is this ever going to happen, though?  First off, we have two or three generations raised on Rambo movies and torture scenarios.  And also there is—we have to I think acknowledge this, there‘s going to be a segment of every population in every country in the history of the world to this point, and presumably going forward this will continue, at least in some measure, people who just don‘t really get the moral argument, and think that as long as it isn‘t happening to them, it‘s OK. 

Isn‘t the most impactful argument being the one that this doesn‘t do anybody any good?  It doesn‘t even achieve what your purpose is, even if you don‘t have any morals? 

MADDOW:  I don‘t think so. 

OLBERMANN:  No? 

MADDOW:  I think ultimately the United States ends up taking a role in moral leadership on this issue once again, and decides that the moral argument is the right argument and decides that the reason there are statutes against torture, again, is not because of effectiveness, but because it‘s just plain wrong. 

There‘s a reason that politicians no longer get away with the assertion that something is legal because the president says it‘s legal.  There‘s a reason that American politicians are laughed at, even by the general public, when they say that now.  And that‘s because of the way Watergate ended, because of the fact that the only reason Richard Nixon was able to avoid impeachment is because he resigned, and the only reason he was able to avoid conviction is because he was pardoned. 

There needs to be accountability on this so that we do win the moral argument and that‘s where it is settled.  That is why accountability is so important on this issue. 

OLBERMANN:  Yes.  But you know that only happened because Woodward and Bernstein tortured Deepthroat.  You do know that, right?  Rachel Maddow, the host of “THE RACHEL MADDOW SHOW.”  They sever say I never have anyone on the show I disagree with.  Rachel and I just disagreed on the central point about torture. 

MADDOW:  Ta-da.

OLBERMANN:  Thanks, Rachel. 

MADDOW:  Thanks, Keith.

OLBERMANN:  When next you see her, is the GOP committing suicide going after Sotomayor in this way?  Her special guest will be Mark McKinnon, former Bush media adviser.  That‘s on “THE RACHEL MADDOW SHOW” at the top of the hour.

Also, he‘s a Republican Congressman from Texas and he‘s now invoked, A, the Trojan Horse, B, private sexual behavior, and C, federally provided protection.  Tonight‘s WTF moments. 

And in the spasm of embarrassing arguments against Judge Sotomayor, this is the worst.  Her name is too difficult to pronounce.  She should change the pronunciation of her name.  Worst persons ahead on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  What the Congressman meant to say was something that did not include the phrase “private sexual behavior” and protection in the same sentence.  Tonight‘s WTF moment. 

That‘s next, but first time for COUNTDOWN‘s number two story, tonight‘s worst persons in the world. 

The bronze to Colonel Ralph Peters, retired and crazy, from Fixed News, offering Neil Cavuto a solution to the problem of relocating detainees at Gitmo, possible future detainees too.  “Once you commit an act of terror, in my book, you‘re outside.  You‘re anathema.  You should be killed.  We‘re dealing with people who aren‘t human anymore.  They‘re monsters.  Just like in the movies, monsters deserve to die.  And we agonize over this.  There will be miscarriages of justice in a brutal war like this, but I don‘t think too many.  We‘re pretty good at figuring out who‘s right and wrong.” 

Actually, we‘re not.  That is almost besides the point.  Colonel Peters, you do realize that if some authority in this country or another country just decided that you were a terrorist, without proof or trial or even like a warrant, you do realize that, according to your solution, they would be right simply to kill you? 

Our runners up, Bill Hemmer and Fixed News, during one of the comedy channel‘s 930 segments hysterically branding Judge Sotomayor a racist, socialist, strange food eating, empathetic, argumentative, hot tempered woman.  They threw up a graphic that noted in her yearbook at Princeton she quoted that evil socialist, the candidate for president in the ‘30s and ‘40s, Norman Thomas.  Never referred to it, never mentioned the quote.  The quote was, “I am not a champion of lost causes, but of causes not yet won.” 

Yes, wow, almost Karl Marx.  Must be code for I love me some Che Guevara.  Idiot. 

And our winner, a Mark Krikorian of a Center For Immigration Studies, writing at the “National Review” online that it is unfair to the rest of us to have to pronounce Sotomayor‘s name correctly.  “Deferring to people‘s own pronunciation of their names should obviously by our first inclination.  But there ought to be limits.  Putting the emphasis on the final syllable of Sotomayor is unnatural in English.  There are basically two options: the newcomer adapts to us or we adapt to him.” 

I don‘t know when your ancestors arrived in this country, Mr.  Krikorian, but there was a time in which immigrants with tough-to-pronounce names were encouraged to change them, or sometimes had them changed for them at Ellis Island and elsewhere.  Unless Sitting Bull is one of your ancestors, they either got here afterwards, or, like mine, they resisted this racist wall papering pap that you are now spouting.  If they hadn‘t, today, your name, by your own logic, would be Mark Krik. 

Mark, when it‘s my name, it‘s my right, when it‘s Sotomayor‘s name, she should change it, Krikorian, today‘s worst person in the world!

(COMMERCIAL BREAK)

OLBERMANN:  Finally tonight, some Congressmen are born incoherent, some achieve incoherence, and some have incoherence thrust upon them.  Our number one story, as promised, our WTF moment. 

If on the subject of your opposition to same-sex marriage, you come across as less generous than David Brooks, less nuanced than Pat Buchanan, and less informed than Carrie Prejean, you may still get yourself elected to Congress and reelected, and re-reelected, five times in fact.  But when asked about this opposition to same-sex marriage, if your answer makes David Brooks and Pat Buchanan and Carrie Prejean all say, WTF, you, sir, have transcended the born, achieved, thrust upon them equation, and moved directly to all above. 

Meet Congressman John Culberson of the Seventh District of Texas.  We have heard him before say goofy stuff, but nothing that would make him a first teamer.  He is the guy who announced that the stimulus package was, quote, “a Trojan Horse that liberals are using to ultimately turn America into France.” 

But that‘s nothing like the work of the true all stars, Steve King of Iowa, or Mr. Shimkus of Illinois, the one who occasionally has ecstatic religious visions in the middle of his hearings, or, of course, legendary team captain Michelle Bachmann. 

But now, Mr. Culberson has elevated his game.  He went on C-Span, which always seems like a good idea, until you find yourself in the terminal stages of an answer so labyrinthine, so filled with double entendres that you can‘t remember a time when you were not on C-Span lost in your own sentenced. 

Mr. Culberson was asked a pretty straightforward question.  One assumes he thought he was giving a pretty straightforward answer. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  You said a lot about how the federal government shouldn‘t be in our house.  My question is about gay marriage.  So do you really think the federal government should be in our house or the government shouldn‘t?  I know gay marriage is—it‘s the state government that controls that.  So what do you think on that? 

REP. JOHN CULBERSON ®, TEXAS:  Well, under the Tenth Amendment, the state has a first responsibility for providing for public safety, public health, public morality, all issues that just affect the people within that state.  It‘s up to the states.  And you either follow the Constitution or you don‘t. 

(END VIDEO CLIP)

OLBERMANN:  OK.  We haven‘t gotten to the crazy yet.  I just wanted to interject that the Tenth Amendment reads as follows: “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” 

That‘s it.  That is the whole can of Cheese Whiz.  It doesn‘t say a damn thing in there, Mr. Culberson, that the states have a first responsibility for morality in public.  Maybe he was thinking of that when he went off like this. 

(BEGIN VIDEO CLIP)

CULBERSON:  Now, personally, I think that—it‘s just I think also self-evident that you‘ve got to have a marriage between a man and a woman or society‘s not going to make it.  You‘re not going to have a fruitful, productive, growing civilization unless marriage is between a man and a woman. 

That‘s just history.  History will show you that.  But it is a person‘s private business.  Their private life is their private business.  I‘m fundamentally libertarian at heart.  And I do believe in the Tenth Amendment.  I don‘t want to hear about somebody‘s private behavior. 

(END VIDEO CLIP)

OLBERMANN:  Then I don‘t want to hear you keep referencing parts of the Tenth Amendment that you and only you can see. 

(END VIDEO CLIP)

CULBERSON:  Think about this, you cannot—if we provide civil rights protection to somebody based on private sexual behavior, well the Constitution, the 14th Amendment says we have to provide equal protection. 

(END VIDEO CLIP)

OLBERMANN:  Congressman, hello, you‘re talking about private sexual behavior and providing protection.  Hello. 

(BEGIN VIDEO CLIP)

CULBERSON:  Federal law cannot permit—if one state, Vermont, wants to do that, you can‘t let that cross state lines.  You‘ve got to let, frankly—frankly, a lot of these issues have to be up to the states.  But the federal government cannot permit—the federal government has a legitimate role in interstate commerce. 

(END VIDEO CLIP)

OLBERMANN:  Interstate commerce?  Where the hell did interstate commerce come from, Congressman?  Oh, yes, we have to ship all that protection for the private sexual behavior. 

(BEGIN VIDEO CLIP)

CULBERSON:  And that‘s where the federal government‘s role comes in.  I think the federal government shouldn‘t recognize it.  It‘s just a—it‘s just a—it‘s just a bad idea.  And—but fundamentally the right of privacy is fundamental. 

(END VIDEO CLIP)

OLBERMANN:  Well, there you have it.  “Fundamentally, the right of privacy is fundamental.”  If Congressman Culberson sounds at all familiar to you, I suspect this is why. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Hell, I was born here and I was raised here, and, dag gone it, I‘m going to die here.  Ain‘t no side winding, bush whacking, horn swaggling cricker-croker (ph) is going to run away with Cotter.

UNIDENTIFIED MALE:  Now, who can argue with that? 

(END VIDEO CLIP)

OLBERMANN:  Congressman John Culberson, Seventh District of Texas, where the answer to every question is either the Tenth Amendment, or fundamentally, the right of privacy is fundamental, or the government has to provide protection for private sexual behavior. 

Possibly, to hearken back to the congressman‘s remark about the stimulus plan, possibly protection involving a Trojan Horse.  WTF? 

That‘s COUNTDOWN for this the 2,218th day since the previous president declared mission accomplished in Iraq.  I‘m Keith Olbermann, good night and good luck.

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

END   

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