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'The Rachel Maddow Show' for Wednesday, December 2, 2009

Read the transcript to the Wednesday show

MADDOW

December 2, 2009

THIS IS A RUSH TRANSCRIPT.

THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

Guests: Susan Rice, John Bellinger, Kent Jones

RACHEL MADDOW, HOST: Good evening, Keith. I have to ask you, are you responsible for turning the lights on the tree?

KEITH OLBERMANN, "COUNTDOWN" HOST: Yes. OK. You want me to turn it off now?

MADDOW: Yes.

OLBERMANN: Have you seen enough?

MADDOW: Yes.

OLBERMANN: OK. Hold on-oh, I'm just getting a message. Not worth the price of my what? You cut off the lights, we'll cut off-Tiger Woods is outside waiting-Mrs. Tiger Woods is outside waiting for me. I'm out of shtick. Go ahead.

MADDOW: Thank you, Keith. Keep the lights burning bright.

OLBERMANN: We'll keep light on for you.

(LAUGHTER)

MADDOW: All right. Thanks to you at home for staying with us for the next hour.

You have heard the new plan for the Afghanistan war. Tonight, we will show you that plan, literally. That is just in a moment.

America's U.N. Ambassador Susan Rice will join us to answer lots of questions about Afghanistan and Pakistan and more. She is someone I have been looking forward to talking to for a very long time.

The interview tonight is with a legal adviser to the National Security Council and council to the president during the Bush administration and what he has to say about the civilian trial of Khalid Sheikh Mohammed is not what you would expect.

We have more reporting on some Americans' involvement in the proposed law in another country that would kill people for being gay.

And Senator Mitch McConnell has an inadvertently funny idea for how to pay for the escalation in the Afghanistan war.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL ®, KENTUCKY: Unexpended stimulus funds would be a good place to start.

(END VIDEO CLIP)

MADDOW: But we begin tonight with the older of our two wars. Do you want to see what the plan is for how to make Afghanistan work? The plan for how in year nine of our war in Afghanistan, escalating the war there is going to turn the tide and give us some reason to be glad that we've been there for all these years?

Here-here it is. Here is the plan. You got that? That is the plan. There it is. It's an unclassified slide obtained by NBC News' Richard Engel in Afghanistan.

This is how the Joint Chiefs of Staff is planning to win in Afghanistan. This is the justification for the war being continued into year nine and 10 and 11 and escalated because this is how we'll win.

You got this memorized now? Has it been there long enough? Do you see how the plan works? Do you understand that?

OK. Good. Go do it.

I can even try to explain a little bit based on the plan, if you want. See, this part over here, that part there, this is where it shows that the goal is to make the Afghan government work. So you want to keep people who already support or sympathize with the government supporting the government, you want to get people who are on the fence to start supporting the government, and you want to get people who are insurgents or in sympathy with the insurgents to at least become neutral. That's what the little green train means there.

And to get that, you need to work on security in the country. All these parts of the plan shaded here deal with that. You've got to work on Afghan governance there, how their government works-here's your marching orders for that part of it.

You've got to work on development. Here's how development's going to work. See? Over here, it's like, ability to move people and goods rapidly. And down there in the right-hand corner, it's private sector capital. Oh, so that's how that works.

And then here's how information is supposed to work now-information systems in Afghanistan. Security, governance, development, information systems-it's all going to come together like a symphony through the magic of counterinsurgency.

See how much this makes sense? This is the battle plan. This explains why we are staying in the war, in this war for years 9, 10, 11, whatever, and why we are escalating now, because we're just going to-we're going to just do this.

We made it big so we can follow it here at work.

Richard Engel's filing on this from Afghanistan notes that some people will see this as genius, an effort to get everything that matters in the war considered all at once, all in the same piece of paper, because everything matters all at once in wartime.

To other people, this shows the, I guess you'd say, spaghetti logic that it takes to justify putting more troops and more money into this war now.

In Richard's words, it's what happens when smart people are asked to come up with a solution to the wrong question.

Joining us now is a very smart person, our U.N. ambassador, Susan Rice.

Ambassador Rice, thank you very much for your time tonight.

SUSAN RICE, U.S. AMBASSADOR TO THE U.N.: Did you ask my 7-year-old to make that chart for you?

(LAUGHTER)

MADDOW: It's kind of amazing.

RICE: I've never seen such a chart, having been in every meeting on this topic. So, I'm not sure where that comes from. But it makes for a good opening.

MADDOW: It's a Joint Chiefs of Staff document. And obviously, this is not-you know, I don't think they're issuing this to people and telling them to follow it, but it does institute the-it does illustrate the-I don't know-the daunting complexity of what it is we're trying to do.

RICE: It is, indeed, complex.

MADDOW: Do you think it boils down to trying to make the Afghanistan government work?

RICE: Rachel, the key purpose of our strategy and approach is the same as it was when the president articulated it in March-which is to disrupt, dismantle, and eventually defeat al Qaeda and prevent al Qaeda from reestablishing safe haven in Afghanistan and to eliminate the safe haven in Pakistan. That's the simple and direct purpose.

And reaffirming that is essential, because the fact is, whether we find it a pleasant topic or not, the reality is that al Qaeda continues, even as we sit here, to plot and plan to attack us here in the United States, as they did on 9/11.

MADDOW: But they're not in Afghanistan.

RICE: There are some elements in Afghanistan, but the bulk of al Qaeda-it is true-is now been displaced across the border into Pakistan. But what we must do and what this strategy is designed to do is to prevent al Qaeda from coming back and reestablishing safe haven in Afghanistan under Taliban auspices.

And the reason why it is so important to reverse the momentum of the Taliban and prevent the Taliban from taking over authority in Afghanistan is because the Taliban and al Qaeda have been and remain symbiotic, even though they are separate entities, the Taliban is like tissue, conducive tissue in which the cancer of al Qaeda can thrive, because it is utterly supportive.

In Pakistan, where we also are working to reduce and eliminate the safe haven, you have now a government that is actively going after the extremists and actively trying to counter them.

MADDOW: Is-in terms of what we're doing in Afghanistan, and I understand that it's-it's not-"fashionable" sounds derogatory, but it is fashionable to talk about Afghanistan and Pakistan as Af-Pak, as if they are one place. They are separate countries.

RICE: They are.

MADDOW: And our engagement with those two countries is very, very different. In terms of Afghanistan, specifically, if there are only very limited elements of al Qaeda there, if it is to prevent future safe havens for the Taliban and thereby, eventually, for al Qaeda in Afghanistan, is this a Bush doctrine war? Is this a preventative war to stop the threat that doesn't exist today?

RICE: No.

MADDOW: One from emerging in the future?

RICE: Absolutely not because the threat exists. It has manifested itself in the killing of 3,000 people here on 9/11. It's manifesting itself repeatedly in plots that we've recently just disrupted here in the United States. They were hatched in this border area to again.

MADDOW: Border area of Afghanistan?

RICE: Of Afghanistan and Pakistan, along that border. Well, it is a porous border, as you well know, having looked at this. Yes, there are different countries. Yes, we have very different approaches and strategies to them, but there is nothing different about that area. It is completely porous and people and fighters can and do move freely across that border.

And so, as we work to eliminate the safe haven in Pakistan, it's vitally important that the Taliban, which has nurtured and supported al Qaeda in Afghanistan, not gain control and not be able to establish large swaths of authority in the country in which al Qaeda can again have a safe haven.

MADDOW: Is there a war in Pakistan? And are we part of it?

RICE: Is there a war in Pakistan?

MADDOW: Yes.

RICE: The Pakistani military, as you know, is actively going after extremist elements in Swat, in South Waziristan, as we speak. So there is that war, and that's the war that the Pakistanis are fighting for the security of their own people, where they've suffered attacks from these extremists almost every day.

And we view that as an important step that is beneficial to the people of Pakistan, as well as to our national security, because the groups that they're going after are the very groups that are in cahoots often with al Qaeda and those that will attack us.

MADDOW: I know that you can't and won't talk about CIA actions.

RICE: You're right.

MADDOW: Nobody will. But-and I mean this-I mean this-I'm asking this in a way that I really hope there is an answer. Whose job is it to explain and to answer for the CIA's activities in Pakistan? Is-as the nation's top diplomat, isn't there a diplomatic disconnect between what we're doing and what we will admit to publicly?

RICE: Well, again, I'm not going to talk about intelligence matters, but I think-as the president said very clearly last night, we are stepping up our counterterrorism efforts in Afghanistan, in Pakistan, and globally. And that is essential for all the obvious reasons. These are extremists who seek to-to do us direct harm.

And I'm not going to get into all of the means by which we're pursuing that, but it would be negligent for the administration and the United States government not to take opportunities to diminish the capability and ultimately destroy the capability of al Qaeda to attack us here at home.

MADDOW: What I'm concerned about is that the war against al Qaeda is a war in Pakistan. The war in Afghanistan is preventative in the sense that it is trying to block these future.

RICE: You talk about it as if it's a hypothetical. The big difference is-and I know you're making the analogy to Iraq and preventative war-there was not, in Iraq, a proximate threat to the United States when we made the decision to go to war there in 2003. There is and remains a proximate threat to our national security that emanates both from Pakistan and Afghanistan.

Now, the extremists have been displaced largely, not entirely, into Pakistan, but the Taliban, which supports and nurtures them, is gaining strength in Afghanistan. And if they are not restrained and their capacity diminished, the extremists, al Qaeda that have moved to Pakistan because Afghanistan had become less hospitable, will easily flood back across the border. And there in Afghanistan, with the Taliban authority that actively nurtures and supports them, will be even more potent than they are in Pakistan, where you actually have a government that doesn't want them to succeed.

MADDOW: So.

RICE: So, this is not a hypothetical. This is very real, very proximate. And it's not about prevention at this stage. It is about actively countering a clear and present danger.

MADDOW: Is the role of our troops, at least in eastern Afghanistan-is it to backstop what's happening in Pakistan? To prevent a backwash, the way you're describing it, of al Qaeda fighters fleeing that real war in Pakistan that we're not officially fighting, that's the Pakistani government fighting for their own lives, fighting those forces to a greater or lesser degree, depending on happy we are with them at the moment-is it to stop those fighters from getting in to Afghanistan?

RICE: I would put it differently. It is to-as I said earlier, it's to disrupt, dismantle, and defeat al Qaeda, and prevent it from establishing safe haven in Afghanistan again, and to disrupt and eliminate, ultimately, the safe haven in Pakistan.

And since the border is entirely porous, it's hard to distinguish, you know, one place from the other. There's no line on the map which the al Qaeda are observing and refusing to cross. They move from Afghanistan largely into Pakistan and they have infiltrated often subsequently and can move freely across that border.

And if the Taliban gain strength and takes over large swaths of Afghanistan and they have been gaining momentum, then al Qaeda's ability to move freely throughout Afghanistan is radically enhanced. And that is a clear and present threat to our national security.

MADDOW: It could also be said that al Qaeda could take over Somalia, which has ceased to function as a regular state. It could also be said that al Qaeda, which has deep penetration into parts of Yemen, in parts of that country that could be described as very, very challenged in terms of its governance could have a home base and a safe haven.

RICE: Could, but doesn't.

MADDOW: But "could, but doesn't" in Afghanistan right now.

RICE: No, has and will, to the extent that the Taliban is able to take over increasing swaths of that territory. Because the difference is, in Yemen, in Somalia, which has no government, the Taliban is an authority that when it was the government in Afghanistan gave every aid, support and government to al Qaeda and will do so to the extent that they are able, going forward.

MADDOW: Al-Shabab wouldn't qualify in that workout.

RICE: You want to talk about Somalia, I'm happy to talk about Somalia.

MADDOW: Please. I mean, I see a lot of threat out there. Why aren't we-why aren't we invading?

RICE: First of all, we are involved in efforts to counter al Qaeda wherever it exists. But al-Shabab is not governing in Somalia. It is not even the responsible authority in substantial portions of Somalia.

But, yes, we have every reason to be concerned about Somalia, but it is not the hotbed and the focal point of al Qaeda that is in the Pakistan/Afghanistan border area, it has been for over a decade. And it is from that region in South Asia that trainers from all over the world have gone for support, for instruction, and then they have fanned out elsewhere.

So, to leave untended that critical region from which they have an active and operative safe haven, to examine other parts of the world, would be counterproductive. We don't have that luxury.

MADDOW: To be able to make that sort of a definitive geographic case for why it matters to be involved here, in such great numbers, at such great costs, heading into year nine, heading into year 10 in this place, we have to consider that parts of 9/11 were planned in the United States. Great parts of 9/11 were planned in Germany. There doesn't have to be a safe haven in order for al Qaeda to launch terrorist attacks against us.

RICE: That's true. But where there is a safe haven, their ability to train, to plan, and to acquire resources and act on the basis of those resources is substantially enhanced. It is a fact that, you know, you don't-it is not essential to have a safe haven in order to conduct a terrorist attack, but where you do have a safe haven, you have the ability to project much more violence, plan and train for many more operations, and it is a far greater threat than simply an individual cell or an individual plotter.

MADDOW: Ambassador Susan Rice, our U.N. ambassador-A, you're very good at this, B, you're-it's very good of you to give me this time, and I'm hoping you wouldn't mind sticking around for just a couple more questions. Is that OK?

RICE: Yes.

MADDOW: All right. Good.

All right. Diplomatic victory.

RICE: How long you've been doing this?

MADDOW: We'll be right back.

(COMMERCIAL BREAK)

MADDOW: Just ahead: More of my conversation with the American ambassador to the United Nations, Susan Rice.

(COMMERCIAL BREAK)

MADDOW: We're back with America's ambassador to the United Nations, Susan Rice.

Thank you very much for staying with us, Ambassador Rice.

RICE: Glad to be with you.

MADDOW: I want to understand a point that you made in the last segment about the overall reason why we're there-why we're there. I asked you, are we there to shore up the Afghan government? And you said, we're there to beat al Qaeda.

If the Afghan government doesn't get shored up, if it stays-and these are my words, not yours-as feckless and corrupt as they seem to be right now, can we leave if we have Osama bin Laden's head on a platter and we've done other damage to al Qaeda? Can we leave with the Afghan government in this bad of shape?

RICE: What we seek in Afghanistan is a capacity to build up its ability to provide security throughout the country, such that the Taliban is unable to take control. And we seek a government that is able to prevent the return of an al Qaeda safe haven to Afghanistan.

MADDOW: Is that a stronger government than Afghanistan's ever had in modern times?

RICE: It's a government that has built up its security forces, to a standard that doesn't yet exist. And that's a large part of the logic for the president's decision to surge 30,000 troops. Those 30,000 will substantially be devoted-not entirely-but substantially be devoted to accelerating with the additional NATO forces that will come in, the training of Afghan national security forces.

And, you know, one of the reasons for the logic of "If we hurry up and get folks in," which we're working to do, additional troops, have them do the training and have them actively partner in the field with the Afghan national security forces, which is something that substantially accelerates their ability to come up to speed, then we will accelerate the time frame in which those forces come online and we will enhance their quality. And that's why the president has said that in 18 months, two years after the first complement of troops that he deployed will have arrived, that we will, in fact, expect to be able to begin to transition some responsibility for security to Afghan forces in those areas of the county that are most secure.

MADDOW: And when will American troops start coming home at that point?

RICE: And at the same time, that will enable us to begin to transition our forces out.

MADDOW: And when-in that transition, there's been some confusion, both last night and today, about whether or not that transition and the bringing home of American troops means just to the extra 30,000 being sent now, does-or does it mean that we drawdown below the 70,000 that we've got there now?

RICE: What the president said was that we will begin to transition to Afghan forces, where they are capable and ready and where security is greatest, such that those forces that we have put in there will, in particular, this additional 30,000, will begin the process of withdrawal. Now, I can't tell you which units, from which parts of the country.

MADDOW: But overall numbers will fall below what they are now.

RICE: It will depend-they will begin to decline. I can't tell you at what point they will get below where they are now and what point they'll get below where they were.

MADDOW: I want to know if we're still going to be there 15 -- in year 15 of the Afghanistan war.

RICE: No. The president has been extremely clear that this is not an open-ended commitment. We will not be there indefinitely. And that a large part of the logic for indicating that we intend to begin this transition process in 18 months is so that the Afghan people and the Afghan government are empowered and motivated to begin to take responsibility for securing and governing their own countries.

It is very important that there'd be no sense on the part of the Afghans that this is an indefinite commitment.

MADDOW: If we are talking about 400,000 Afghan security forces, which is the number that General McChrystal has used, the cost of supporting that many Afghan security forces dwarfs the entire Afghan national budget.

Are we going to be paying the bill for that indefinitely?

RICE: First of all, let me say that we-that the review did not result in a specific target number.

MADDOW: OK.

RICE: . for either the police or the security forces. We are committed to building up the capacity of the Afghan national army as quickly, but with quality, as we possibly can, and that's what this additional increment of NATO and U.S. forces will do to a substantial extent.

MADDOW: OK.

RICE: But the number is not fixed in stone.

MADDOW: "The Washington Post" and "The New York Times" just reported on a prison, allegedly, being run by U.S. Special Forces in Afghanistan. And it was a prison unit that nobody knew about before. It was apparently attached to the Bagram Air Force base and the prison we knew about there. But this particular part, run by the secretive Special Forces, apparently, not making prisoners available to the International Committee of the Red Cross.

Is it the policy of the United States to keep some detainees from being seen by the Red Cross, or was this just a mistake?

RICE: I'm not intimately involved in that policy or its implementation. I would not be in a position to answer that. I do know that we have-always had, in this administration, a general policy and practice and commitment to giving access to the ICRC to prisoners.

MADDOW: OK. One question that I know was in your remit, although that you're not going to be anymore comfortable answering it. Former American officials, including General Jay Garner, Zalmay Khalilzad, Peter Galbraith, are among those who have made news recently for making or being poised to make a lot of the money in Iraq now as investors or consultants.

When former officials or former Foreign Service officers do business deals that plainly trade on the work they did as American officials, doesn't that undermine every American official working around the world now in these sensitive environments? Doesn't that hurt us?

RICE: You know, Rachel, I don't think it undermines every one of the dedicated men and women who serve in our Foreign Service or who serve in our armed forces. We have plenty of people, whether diplomats or former military officers, former government officials, who choose to lobby or choose to make money based on their prior relationships. That's not an uncommon phenomenon.

I think, in the case-in at least one of the cases you've described, I found particularly concerning the report about former Ambassador Galbraith, given his, really, massive potential interest in Iraq and particularly in Kurdistan, and the fact that it hadn't been disclosed, as he did his consulting and his op-eds in places like "The New York Times," but those are personal choices. There is nothing, it seems, illegal about what he's said to have done or alleged to have done and others. People make their own choices.

And I insist that it doesn't, in any way, undermine the quality or the virtue of the good, hard work that our diplomats do every day around the world.

MADDOW: One last question for you. How is it being U.N. ambassador?

Are you-are you enjoying the job?

RICE: You know, I am enjoying the job. It's a-it's a really good time to represent the United States globally and the United Nations is really the tip of our engagement with the rest of the world. I'm there with 191 other countries every day and the leadership that President Obama has provided, the profound change in our policies, in our approach to the rest of the world is felt and reflected and manifested the United Nations.

So, it's actually a conducive environment to advance our interests, get done important things that matter to our national security, and to stake out positions that are reflective of our values and our principles. And I am enjoying it.

MADDOW: Boy, that's a very different perspective than former Ambassador John Bolton.

RICE: You think?

MADDOW: Yes, it's night and day. It's really nice to have you here.

RICE: Thank you.

MADDOW: Thank you very much, Ambassador.

RICE: Take care. Thank you.

MADDOW: U.S. ambassador of the United Nations, Susan Rice.

We'll be right back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA: And as commander-in-chief, I have determined that it is in our vital national interest to send an additional 30,000 U.S. troops to Afghanistan. To abandon this area now and to rely only on efforts against al-Qaeda from a distance would significantly hamper our ability to keep the pressure on al-Qaeda and create an unacceptable risk of additional attacks on our homeland and our allies.

(END VIDEO CLIP)

MADDOW: President Obama's speech on Afghanistan last night was not the type of speech to which there's an official opposition party response. In fact, Mr. Obama's decision on Afghanistan is one that the opposition party has been sort of positive on. More troops, you say? How high?

But in one corner of the Republican Party, Mr. Obama's big prime-time, wall-to-wall coverage speech was an occasion to attack.

Former Vice President Dick Cheney continued his role as the self-appointed shadow vice president when he pre-butted the president's speech last night in an interview with "Politico.com," in which he not only denied any Bush administration responsibility for creating the current mess in Afghanistan.

He also attacked Mr. Obama for his deliberative process. He attacked Mr. Obama for bowing, like other presidents have done when he visited Japan recently. And he once again attacked President Obama and the administration for its decision to bring alleged 9/11 mastermind Khalid Sheikh Muhammad to New York City to face trial.

(BEGIN AUDIO CLIP)

DICK CHENEY, FORMER UNITED STATES VICE PRESIDENT: Our al-Qaeda adversaries out there are going to think that this is a great set of developments for their cause. Because one of their top people will be given the opportunity, courtesy of the United States government and the Obama administration, to have a platform from which they can espouse this hateful ideology that they adhere to.

(END AUDIO CLIP)

MADDOW: This is going to be a great set of developments for al-Qaeda, he said. Mr. Cheney went on to say that he thinks the decision provides, quote, "aid and comfort to the enemy."

Remember the years when Dick Cheney wouldn't talk to the press about anything? Now that the former vice president has decided to be unavoidable for comment while in exile, his party, the Republican Party, is confronted with what to do about that.

Is Dick Cheney the voice of opposition to President Obama? Does he speak for the Republican Party? Does he speak for everyone in the Bush administration? Or does he just speak for himself?

In trying to answer those last questions, consider that tonight, in the interview, at least one high-ranking former Bush administration official is now coming out in opposition to Mr. Cheney.

Joining us now is John Bellinger, in the first Bush term, Mr. Bellinger was senior assistant counsel to President George W. Bush and legal adviser to Bush's National Security Council. In the second Bush term, he was legal adviser at the State Department under Condoleezza Rice. He's currently a senior fellow at the Council on Foreign Relations. Mr.

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

JOHN BELLINGER, SENIOR FELLOW, COUNCIL ON FOREIGN RELATIONS: Thanks, Rachel. Nice to be here.

MADDOW: Your former colleague, former vice president, and other former Bush officials have criticized the decision to try Khalid Sheikh Muhammad and other 9/11 conspirators in a federal court. What do you think is the appropriate venue for trying KSM?

BELLINGER: Well, I can understand that this brings out ideological responses on both sides. There are some who feel that absolutely everybody needs to be tried in federal court, that military commissions are inherently unfair and there are others who feel that we are in a war and that everyone ought to be tried in military commissions.

I think this is a close call, but I think that the attorney general has made a reasonable decision to try these five masterminds of 9/11 in federal court. Not everybody should be tried in federal court. Others are more appropriately tried in military commissions.

But I think for this group, one, they actually have committed federal crimes. And not many of the others in Guantanamo have committed federal crimes, but these have.

In addition, it's critically important. I think everyone can agree, that it appeared that these trials are fair. And unfortunately, try as both the Bush administration and the Obama administration has to demonstrate that the military commissions would be fair, and I believe they would be fair.

But the perception is that they're just not, that it's important to do these in a federal court where there can then be no criticism of them if they're convicted and sentenced to death.

So on balance, this is not an easy decision. There's a lot of political and legal and even security risks to doing it. But I think it's a reasonable decision in this case to try these five in federal court in New York.

MADDOW: On that issue of the appearance of fairness, was there concern and debate in the Bush administration at the time that the initial decisions were being made about detainee issues?

Whether America - was there concern and debate about whether America was going to look to the rest of the world like America, whether we would be perceived as acting fairly after 9/11, for example, with these military commissions? I know what was decided, but I'm curious whether that factored into the decision process.

BELLINGER: Well, certainly, later on, over the eight years, there got to be a lot of debate about the military commissions. And they were ultimately struck down by the Supreme Court. When I was at the State Department, I had to spend a good deal of my time defending the military commissions around the world.

Initially, though, there was not as much debate about them. I think those at the Justice Department, at the Defense Department who crafted the military mission commissions originally believed that it would be a swift and fair way to dispense justice to those who had attacked us.

They were basing it on the model from World War II and it wasn't, in fact, their sense that there would be fairness. Unfortunately, it didn't work out that way over time. And the military commissions were condemned, even as they were changed, after the Supreme Court's decision in 2006.

MADDOW: You were a legal adviser to President Bush at the time that Khalid Sheikh Muhammad was picked up in 2003. At that time, and when he and other high-value terrorist suspects were being picked up, was there overt discussion and consideration then about how they would ultimately be prosecuted? Or was it not thought of in terms of a justice process?

BELLINGER: Well, we certainly knew in 2001, as we went into Afghanistan, that we would capture some people and hope that the people that we captured would be some of those responsible for 9/11 and that some people would need to be tried.

And that's why the military commissions were set up originally in 2001. When Khalid Sheikh Muhammad and others were captured, the focus was less on prosecuting them initially than on finding what information they had that might prevent further attacks.

We tend to forget at the time how fearful the nation really was in 2002, 2003, that more attacks were coming. But the focus at the time was not on trying them quickly, but making sure that we could find the information that they had that might prevent further attacks.

One of the things in the second term that Sec. Rice was very emphatic about was that when that intelligence collection was finished, that we do bring them to trial. And that was one reason that she had wanted to bring them in from their sites of detention where they'd been held by CIA, so that they could in fact be tried.

MADDOW: One of the reasons I was really eager for the chance to talk to you about this, because I feel like it is this important hole in the record in terms of the idea - the way that the long-term fight against terrorism was conceived, as manifest by the complaints from people who took over when the Obama administration started, saying, essentially, the files on so many of these suspects, particularly the high-volume suspects, were a mess, that there wasn't good evidence there that either wasn't tainted by allegations of torture, wasn't tainted by other prosecutorial problems, and also that just wasn't well organized, that there hadn't seemed to be a well-organized effort to get these people into a position where they could be prosecuted.

And it seems like that's key for an ongoing long-term fight against terrorism. I think everybody's curious as to why not.

BELLINGER: Well, it is key. And part of the reason was, that for much of the period, from the time that these people were captured, these planners of 9/11. The focus was not on building a case to prosecute them, but on finding out whether they had information that could prevent further attacks.

But this actually gets to one of the points why, in fact, in this case, federal trials may be better than military commissions is that, really, our federal prosecutors have got more experience in assembling and prosecuting these massive cases.

We have a terrific military justice system. And I think, frankly, that critics in the human rights community and around the world have been unfair in condemning the military justice system and suggesting that they're gong to be kangaroo courts.

MADDOW: I'm sorry to interrupt you.

BELLINGER: Yes.

MADDOW: But I feel like I need to interject that I think most of the criticism has been about the commissions being set up rather than criticisms of, say, courts used to handling court-martials and uniform code of military justice problems.

I think the idea is the new courts is being invented just for this purpose. Those are the ones people are worried about.

BELLINGER: Fair enough. And I had some concerns about them myself. They were not set up in a very good process. In fact, that cut out a number of people in the federal government when they were being set up.

But the people who will actually be administering the military commissions, and there will be mission commission trials, are the same military judges and prosecutors and defense council who work in court-martials.

So the criticisms are basically criticisms of pieces of paper, whereas the commissions themselves will be run by flesh and blood military justices, prosecutors, and defense counsel.

But one reason why, at least for the biggest cases of KSM and the other 9/11 planners is, it's not the sort of thing that the military does every day. Yes, they do military trials every day, but it's usually of one or two people.

And over the last couple of years, in fact, we were slowly federalizing the military commission investigations by lending more federal prosecutors to that effort. In this case, and this is one reason why I think it makes sense to try them in federal court, is that it's a massive conspiracy trial where our federal prosecutors are going to have more experience in bringing this kind of a case.

MADDOW: John Bellinger, former Bush administration legal adviser at the National Security Council and the State Department, thank you very much for helping us put some flesh on this record and understand this better. I know we wanted to keep this really focused to the terrorism trials issue tonight. I would love the opportunity to talk to you in the future more about your time with the Bush administration. I hope we could do that.

BELLINGER: Well, Rachel, nice to be with you tonight. And we'll see if I can be back. Thanks a lot.

MADDOW: All right. I appreciate it. Thank you. Senate minority leader Mitchell McConnell has a plan to pay for the Afghanistan war. Be sure you're not drinking anything when I tell you what it is, because that thing where the drink comes out your nose and it really hurts is entirely possible. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Senate minority leader Mitch McConnell has a plan. Now, bear with me. I know people have accused Republicans of being the party of no, voting against everything the Democrats propose while crowing about the need for bipartisanship.

But here is an honest-to-goodness plan, a policy idea from the top Republican in the Senate. Are you ready? It's funny. OK. Mitch McConnell's big Republican idea for funding the troop increase in Afghanistan, which he so passionately supports is - can we do that drumroll thing?

(DRUM ROLL)

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY), SENATE MINORITY LEADER: We know the stimulus failed. We're looking for a way to fund several years of the war. I would suggest unexpended stimulus funds would be good place to start.

(END VIDEO CLIP)

MADDOW: Tada. Since the stimulus failed, we should use that to fund the war. (UNINTELLIGIBLE) was senator stuff, but it could be the folks in the Congressional Budget Office.

Mr. McConnell's big idea about de-funding that failed stimulus came just a day after the nonpartisan CBO said, actually, the stimulus saved or created between 600,000 and 1.6 million jobs.

Mitch McConnell would to cashier that, please, as a giant failure. Sen. Mitch McConnell, everyone. He'll be here all week and the week after that. Tip your waitress. Please try the veal. Thank you. Thank you.

(COMMERCIAL BREAK)

MADDOW: Bill number 18, the Anti-Homosexuality Bill of 2009, Section 2, Subsection 2, "A person who commits the offense of homosexuality shall be liable on conviction to imprisonment for life." Section 3, Subsection 2, "A person who commits the offense of aggravated homosexuality shall be liable on conviction to suffer death."

Section 4, Subsection 1, "A person who attempts to commit the offense of homosexuality commits a felony and is liable on conviction to imprisonment for seven years." If you attempt to commit aggravated homosexuality, that's life imprisonment.

And then section 13, Subsection 1-B, "A person who funds or sponsors homosexuality is liable on conviction to a minimum of five years and a maximum of seven years imprisonment."

And then Section 14, where if you know of someone who's gay, you can get three years in prison for not reporting that person to the authorities. And then there's Section 16, where they will extradite their citizens from anywhere in the world back to this country for prosecution if that citizen commits any of these crimes of homosexuality somewhere else on God's green earth.

This is Uganda's Anti-Homosexuality Bill of 2009. It was introduced this fall after three American Evangelical activists, who proclaimed that homosexuality can be cured, traveled to Uganda this spring to lead an anti-homosexuality inspirational seminar.

The more we investigate, the more Americans we turned up with links to this. So I will warn you that you can expect some continuing coverage from us on this issue. But tonight, we've obtained some reactions from the three anti-gay American activists whose travel to Uganda credited with inspiring the kill-the-gays legislation.

They are Don Schmierer of the group Exodus International, a group that claims that Christianity can cure you of being gay. Also Kayla Lee Brundage(ph) of the group, the International Healing Foundation, which also says that it tries to change gay people into straight people. And there's Scott Lively, president of a group called Defend the Family and author of a book called "The Pink Swastika."

Yes, these are the three American anti-gay, gay-people-can-be-cured speakers who traveled to Uganda earlier this year and who are credited with having inspired the kill-the-gays bill that is being considered in that country now.

Mr. Schmierer has said that he's opposed to the kill-the-gays legislation and he says that he signed onto a letter to Uganda's president against it. The group with which Mr. Brundage is associated first denied knowing anything about the bill's existence and asked us for a copy of it.

After we E-mailed them the legislation, they issued a statement that, quote, "We condemn any harsh and extreme punishment of persons who identify as homosexual or engage in homosexual behavior. Instead, we advocate education and counseling for those who experience unwanted same-sex attraction."

Education and counseling to cure you of the gay. And then, there's the last one - Mr. Scott Lively, "The Pink Swastika" guy. He told "LifeSiteNews.com" that the law is too harsh but, quoting, "Dr. Lively explained that the impetus for the bill was a lot of external interference from European and American gay activists attempting to do in Uganda what they've done around the world, homosexualize that society."

One of their main concerns, explains Mr. Lively, are the many male homosexuals coming into the country and abusing boys who are on the streets. So I mean can you really blame them?

Well, of course, Uganda wants to execute people for being gay. Maybe a little harsh but it's a normal reaction to all this pressure they've been getting. Can you blame them?

We thank Mr. Lively and Mr. Schmierer and Mr. Brundage for giving us their reactions to the bill that they reportedly inspired to the extent they responded to our calls for comments.

If American anti-gay activists inspired this bill, are there other Americans who have the clout to stop it from passing? You bet there are. And it turns out a lot of them are household names.

And so far, as far as we can tell, they have done nothing. We continue to investigate this. Our next segment on the kill-the-gays bill tomorrow will familiarize you with some of the Americans who probably could stop this, who apparently don't want to. That's tomorrow.

(COMMERCIAL BREAK)

KENT JONES, POP CULTURIST: Hi, Rachel.

MADDOW: Hi, Kent.

JONES: Sen. Al Franken is in hot water with his Republican colleagues. I know, difficult to believe. But check out why.

MADDOW: OK.

(BEGIN VIDEOTAPE)

JONES: Now, you'd think Republicans would welcome a Democratic comedian who unseated one of their colleagues and wrote "Rush Limbaugh is a big, fat idiot." But the junior senator from Minnesota had the effrontery to propose legislation strengthening the rights of sexual assault victims.

Where does he get off? Moved by the story KBR employee Jamie Lee Jones, who alleges she was drugged, beaten and gang-raped at age 19 when she was stationed in Baghdad, Sen. Franken proposed an amendment that would cut federal contracts to companies who forced their employees to take sexual assault claims to in-house arbitration rather than a court of law like everyone else.

Vote for it and Republicans could be seen as pro-Franken. Vote against it, as 30 of them did, and they could be seen as pro-rape. Code red. Paradox. Franken. You can imagine the outrage.

Sen. John Cornyn of Texas said, quote, "Trying to tap into the national sympathy that we have for this victim of this rape and use that as a justification to frankly misrepresent and embarrass his colleagues - I don't think it's a very constructive thing."

Sen. John Thune added, "I don't know what his motivation was for taking us on, but I would hope we won't see a lot of 'Daily Kos'-inspired amendments in the future coming from him. I think hopefully he'll settle down and do the kind of serious work of legislating that is important to Minnesota."

Yes, that will be enough of your principled, asking people to vote against rape, funnyman.

(END VIDEOTAPE)

MADDOW: Yes, man.

JONES: Yes.

MADDOW: Settle down! Thank you, Kent. Appreciate it. Thank you for watching tonight. "COUNTDOWN" with Keith Olbermann starts now.

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

END

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