updated 2/23/2010 9:43:54 AM ET 2010-02-23T14:43:54

Guests: Sam Stein, Howard Dean, Chris Hayes, John Dean, Jonathan Martin.

HOST (voice-over):  Which of these stories will you

be talking about tomorrow?

The White House shows its math—its health care reform, no public

option, the maximum penalty for failing to buy private insurance increased

by 25 percent.

               

(BEGIN VIDEO CLIP)

               

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  It incorporates Democratic and Republican ideas and it‘s a starting point for those discussions.

(END VIDEO CLIP)

OLBERMANN:  Is 22 the ending point for the Senate public option push?  Johnson, Menendez, Stabenow sign.  Feingold endorses reconciliation.  No one else.  Our guest: Howard Dean.

Mixed message from the GOP.  Bond, Brown, Collins, Snowe, Voinovich split with their party on the procedural vote on the jobs bill.

(BEGIN VIDEO CLIP)

SEN. HARRY REID (D-NEV), MAJORITY LEADER:  I hope this is the beginning of a new day here in the Senate.

(END VIDEO CLIP)

OLBERMANN:  But could it be Republican grandstanding day?

Dr. No.  Dr. Coburn of Oklahoma still says, “I love gridlock.  I think we‘re better off when we are gridlocked because we‘re not passing things.”

2002, 2003, what‘s the difference?  The secret CIA memo Cheney always claimed proved torture works doesn‘t.  The memo says, under waterboarding in August, 2002, Abu Zubaydah gave up would-be dirty bomber Jose Padilla and Padilla who was arrested in May 2003 -- except Padilla was actually arrested in May 2002.  John Dean on Cheney‘s proof going up in smoke.

“Worsts”: Republican state legislator in Virginia says special needs kids are God‘s punishment for women who aborted their first conception.  That‘s your cue, Governor.

The governor who got 1/5 of the presidential support at CPAC as—who?

(BEGIN VIDEO CLIP)

ANNOUNCER:  The winner of this year‘s CPAC straw poll is Texas Congressman Ron Paul.

(CHEERING)

(END VIDEO CLIP)

OLBERMANN:  And Lonesome Roads explains the difference between communists and progressives.  Communists want revolution.  Progressives want evolution.

(BEGIN VIDEO CLIP)

GLENN BECK, FOX NEWS HOST:  Well, we don‘t want to involve—evolve.

(END VIDEO CLIP)

OLBERMANN:  Yes.  We could tell.

All the news and commentary—now on COUNTDOWN.

(GROWLING)

(END VIDEOTAPE)

OLBERMANN:  Good evening from New York.

The good news tonight—when unveiling the president‘s new health care plan this morning, White House advisers are saying that if Republicans filibuster the bill, the Democrats will still pass health care reform by reconciliation.  The bad news, the president‘s health care plan does not have the public option in it and it increases the individual mandate penalty, a mandate to buy private insurance with no public option.

Breaking within the last hour, another senator, the 22nd, is signing the letter to the majority leader, calling for the public option by reconciliation.

The 10-year, $1 trillion Obama plan, like the current Democratic bill in the Senate, would bring health insurance to more than 31 million Americans who now lack it by forcing them to buy it.  The penalty for failing to buy private insurance at market rates rise from a maximum of 2 percent of annual income to 2.5 percent—a 25 percent increase.  The entire plan working very similar to the unpopular Senate bill on which it was based.

Other revisions besides the higher mandate penalty with no public option: a so-called “Cadillac Tax” to be imposed on the most expensive health care plans.  The threshold, however, raised to health care plans costing $27,500 a year or more.  Many Democrats are likely to be angry that the tax is there at all.  Some things Democrats are likely to approve: still subsidizing the poorest of those who cannot afford to buy insurance, closing the Medicare prescription drug coverage gap, so-called “Donut Hole,” boosting financing for Medicaid‘s expansion in all states, creating a federal panel that would have the authority to stop insurance companies from excessive rate hikes—think Anthem Blue Cross in California.

Another big loser in the revised plan, Senator Ben Nelson—gone is the so-called “cornhusker kickback,” millions in extra Medicaid funding that the conservative Nebraska Democrat traded for his provisional “yes” vote.

Noncommittal praise from the Democratic leadership on Capitol Hill, Speaker Pelosi is saying the president‘s plan contains positive elements.  Majority Leader Reid praising the bill‘s ability to improve the quality of health care while reducing our deficit by $100 billion over the next decade.

Despite the many Republican elements in the plan, so many that the White House created a Web page specifically to highlight them, the Republican leadership is already against it.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER:  Americans want the administration to scrap its massive government scheme in favor of an incremental approach to health care reform.  Unfortunately, the White House still seems unwilling to do the one thing Americans want most.  It‘s still clinging to a massive bill that Americans have overwhelmingly rejected again and again for months.

(END VIDEO CLIP)

OLBERMANN:  Except in votes and polls.

At the White House, Press Secretary Gibbs declaring that it is up to the Senate to decide what happens ultimately to the public option.

(BEGIN VIDEO CLIP)

GIBBS:  The president has put forward—put forward a proposal that is based on the Senate plan with some—as you all heard of here—some modifications to that.  And as the best way forward into something that can ultimately wind its way through Congress.

UNIDENTIFIED REPORTER:  What do you think of the 20 or so senators who have signed a letter asking for this to be passed through reconciliation?  Is that—

GIBBS:  Well, I think they‘ve asked for the—I think they‘ve asked for a vote on the floor of the Senate and that‘s certainly up to those who manage those amendments and to Leader Reid.

(END VIDEO CLIP)

OLBERMANN:  Over 20 now.  More support among the Democrats in the Senate tonight for the public option, Senator Johnson of South Dakota, Senator Menendez of New Jersey today, and as we mentioned in the last hour or so, Senator Stabenow of Michigan—all having signed the letter calling for the public option by reconciliation.  Senator Feingold of Wisconsin is telling local reporters in his state over the weekend that he was supporting the public option by reconciliation effort, but as far as we know, he has not signed the letter—at least not yet or to public knowledge.

Time to call in Sam Stein, political reporter with “The Huffington Post,” who we already heard in that question to Secretary Gibbs.

Sam, thanks for your time again tonight.

SAM STEIN, THE HUFFINGTON POST:  Thanks, Keith.

OLBERMANN:  So the White House not putting its full weight behind the public option.  It isn‘t in the president‘s plan, but if the Senate can make it happen by reconciliation, they would not stand in the way—is that the gist of what Gibbs was telling you today?

STEIN:  That basically is the gist.  I think the White House doesn‘t want to get in front of this for some unfounded fear that it would stir up controversy.  The irony, of course, is that the public option may in fact be needed to placate House progressives.

Now, throwing some cold water on this reporting, my colleague, Ryan Grim, talked to Senator Jay Rockefeller tonight about this reconciliation path and the West Virginia Democrat said he was not supportive of actually passing the public option through reconciliation, saying that there already was a good structure to provide insurance to those who wanted it through this nonprofit structure that would be based on what the federal employees get.

So, it‘s not all good news in terms of Senate Democrats going down this route.  That said, Harry Reid, it‘s in his hands.  If he wants it, he‘s got to bring it to a vote and got to get the 51 senators.

OLBERMANN:  Is there some sense people that tare laying back in advance of the bipartisan conference with the White House on Thursday?

STEIN:  Yes, that‘s sort of the sense I get.  You know, the White House took ownership of health care today in a way that actually hasn‘t been seen to this point.  And I think they‘re setting the groundwork for what‘s going to happen after the summit.

And this is a merging of the Senate and the House bill.  A lot of it incorporates the House legislation.  That‘s the basis.  I‘m sorry—the Senate legislation.  There‘s House elements to it.

What we see from the conference in terms of Republican amendments is anyone‘s guess, but I think the White House has come to the conclusion that they‘re not going to get a Republican vote so they‘re starting to talk more specifically about the use of reconciliation.

OLBERMANN:  So, why put out this plan today that is not likely to win GOP votes even though it has a huge number of Republican elements in it right out of the Senate plan?

STEIN:  It‘s a good question.  I think it‘s to take away another Republican talking point.  I mean, you‘ve heard for the last couple months, essentially, that the Republicans say the Democrats aren‘t posting their legislation online with three days‘ worth of debate.

Well, this does that.  Not only that, but they‘re going to have C-SPAN cameras in the summit.  So, those are two Republican talking points that have been critical of the president and his actions.  That effectively takes away those two.

Also, you know, it was about time that the president sort of put his thumb on the scale so to speak, and I think he did that in a very effective way today because this is legislation that fundamentally majorities in both houses have voted on.  So, you know, the president‘s weighing in.  We‘ll see what it means in terms of momentum going forward.

OLBERMANN:  And you mentioned C-SPAN‘s coverage.  We should plug MSNBC‘s coverage.

STEIN:  Oh, I‘m going to—I‘ll watch MSNBC instead of C-SPAN.  Don‘t worry.

OLBERMANN:  No, no.  Watch it, you know, you can watch where you want to live.  But we have a special at 9:00 --

STEIN:  Good.

OLBERMANN:  -- roughly on Thursday night doing as we did after the Obama event with the House representatives.

Back to this, the mandates and the higher penalty now for those who would not comply, there are some subsidies put in for the poorest who can‘t afford them.  But who besides the insurance industry thinks a penalty of 2.5 percent—let alone the original 2 percent was a good idea?

STEIN:  Well, this is a tough one.  I mean, it‘s a poison pill in many respects, because if you don‘t have a public option and you mandate that people buy insurance, then you‘re basically mandating that they buy private insurance which is the point you‘re getting at.

On the flip side, there are a lot of sober-minded economists who insist that you need a mandate if you really want to bring down premiums, because you can‘t have insurance reforms, like eliminating the preexisting condition, without making sure that everyone is essentially buying insurance.  So, you know, it‘s a tough debate.  I understand both sides of it.

But there are honest objections to having a mandate raised in this fashion, albeit they are putting in more affordability elements that would allow people to purchase those—purchase that coverage.

OLBERMANN:  Is the—is the key affordability element and the one also the most difficult to assess its impact, this essentially price control panel?

STEIN:  Yes.  I mean, I think the price control panel is a big thing to pay attention to.  Obviously, this popped up in the last week or so with what was taking place in California.  But we actually broke news a couple months ago about a similar premium hike in Connecticut and there was very little attention paid to that.

I think the White House got a sense that, you know, people are really fed up with these sort of bizarre out-of-nowhere premium hikes and that it actually made good political sense to jump on it.

Now, there is also a provision in there that requires insurers to spend a high percentage of their capital on medical costs.  So, this is—these are two very important elements of the bill that have gone underreported and underlooked, and I would expect them to be sort of prominent features going forward.

OLBERMANN:  And certainly on Thursday.

Sam Stein of “Huffington Post”—great thanks, Sam.

STEIN:  Thanks, Keith.

OLBERMANN:  For more on the effort to keep the public option alive in the Senate, let‘s turn to Governor Howard Dean, former governor of Vermont, former chairman of DNC, as well as former practicing physician now a consultant to McKenna Long & Aldridge, as well as Democracy for America and a contributor to CNBC.  That‘s a long resume to start with.

Good evening, Governor.

HOWARD DEAN, FORMER DNC CHAIRMAN:  Hi, Keith.  How are you?

OLBERMANN:  The whip count on the public option by reconciliation, we have at 22, up by two today, three since Friday, but many more senators, like Russ Feingold, who support the effort haven‘t signed the letter.  Can we read the tea leaves on this effort yet?  The Senate has only been back in session one day and you got Thursday—

DEAN:  I actually think it‘s a little bit—Keith, I think the news

is a little better than that actually, because I actually think the House -

the House might put it in.  And here‘s why: the real—it‘s going to be very hard within the rules of reconciliation to put what the House passed, the public option in there.  If they want a public option, they‘re probably going to have to use a Medicare expansion.  That‘s a good thing.  It‘s a good compromise.

               

Had it not been for Joe Lieberman‘s negativity, we would have had the Medicare compromise passed in the Senate with 60 votes.  So if they put that—that fits in reconciliation.  It‘s easier for folks to swallow.  I think we can get that out and I think it may be put in in the House.

OLBERMANN:  Do you think the White House is standing behind this as we just termed it “rate commission,” essentially to drive down costs in lieu of the public option?  Is that the sort of bone being thrown out—

DEAN:  Let me say—no, I don‘t think the White House is interested in the public option.  Let me just say two things about this bill.  First of all, I think this is an improvement.  I think we ought to get this thing passed but it really does need some form of public option.  I personally believe that Medicare expansion to people under 65 is better.

Secondly, we‘ve done—we did all of these reforms 16 years ago in Vermont, 16 years ago.  So, we‘ve got 16 years‘ worth of experience.  You do not need an individual mandate, if you have—if you eliminate preexisting conditions—we did—and guaranteed issue.  We did that 16 years ago, the insurance market is just fine here.

And this rate-setting commission probably won‘t work.  It‘s good politics.  A lot of states have it.  It really hasn‘t—it‘s not very effective, but there‘s no harm in doing it.

I‘m looking forward to a good, strong bill.  I‘m delighted, frankly, that the president has reintroduced a bill.  I do think the president ought to get some credit for coming back and not taking “no” from the “party of no” on this one.  I‘m very, very excited and very pleased that he‘s come back.

I don‘t like everything about the bill but I‘m really pleased that he‘s come back and shown these guys that we‘re not going to quit, because the American people don‘t want us to quit.

OLBERMANN:  Do you think this is based to some degree on the realization that every bit of polling done on this, the individual portions of all major reforms for health care do better than the bill as a whole?  In other words, when you explain content to people, their interest in this thing suddenly shoots through the roof?

DEAN:  That‘s right.  And the Republicans have been very effective at basically lying about what‘s in the bill.  All of these stories about how it‘s going to break the budget—you can say it‘s a $900 billion bill, but it‘s paid for and it‘s going to reduce the deficit by $900 billion.  This saves us money because there are increases and a lot of cuts in waste areas, like how much money the insurance companies are getting out of the part D and so forth.  So, you know, in the long—excuse me—Medicare advantage.

So, in the long run: A, I think the White House gets a lot of credit for coming back and not rolling over and playing dead on this.  B, I do have some faith in the House and I think that they will provide, in reconciliation, a form of a public option, which is what we should have had and almost had, and we surely have enough votes for still in the Senate.

OLBERMANN:  Surely you heard Sam Stein‘s report from his colleagues at “Huffington Post” that Senator Rockefeller is not in favor of doing this via reconciliation.  Does that surprise you and do you think that‘s a permanent position?

DEAN:  Well, first of all, I‘m very, very fond of Jay Rockefeller.  I think he‘s a terrific senator and he‘s almost always on the right side of issues.  But, you know, some of these folks, they have very strong feelings about procedural things.  But, you know, if we get 58 or 57 or 56, that‘ll be enough.

OLBERMANN:  Howard Dean, former governor of Vermont, former head of the DNC—as always, great thanks, Governor.

DEAN:  Thank you.

OLBERMANN:  The breaking news tonight that five members of the “party of no” unexpectedly said, “Yes, yes, we can have a vote about jobs.”  Yet two of their fellow Republicans are caught lying.  Dick Cheney, the classified memo he‘s always claimed proved waterboarding worked turns out to have a timeline that doesn‘t work.  And next: John McCain tries to rewrite history to save his Arizona.

(COMMERCIAL BREAK)

OLBERMANN:  And now, tonight‘s first “Quick Comment.”

And as we go from health care reform to five Republicans voting with the Democrats on the first jobs bill procedural vote, this pit stop to visit another Republican senator.

It is clear, in retrospect, that the last day John McCain had an actual chance of becoming president was September 24th, 2008.  That was when he, quote, “suspended” his campaign because of the economic crisis in Washington and canceled as the only guest for the David Letterman show that night in New York and then lied to Letterman about it.

It may soon be just as clear in retrospect that the last day John McCain had a chance of staying senator from Arizona was February 21st, 2010.

Yesterday, McCain, desperate to shake off tea party attacks on his vote in favor of the Wall Street bailout said that the campaign suspension, a total political stunt in which nothing at all was actually suspended, happened only after President Bush called him to come in off the campaign trail and help him with the financial crisis.  In point of fact, McCain decided on the suspension then called Bush, asked him to call a summit, then went on television and repeated all of that, including his request that Bush should hold the summit.

Now, he‘s trying to rewrite history to make it look like it was all Bush‘s idea and fault.  He also insisted yesterday that Treasury Secretary Henry Paulson had promised him the bank bailout would focus on the mortgage crisis not on—you know, bailing out the banks.

McCain may be lying his way to defeat again, but apparently, somebody is still pulling for him.  Look carefully at the description today of McCain‘s principal primary opponent J.D. Hayworth.  Congresswoman?

Senator, apparently, FOX still likes you.

(COMMERCIAL BREAK)

OLBERMANN:  More breaking news from Washington tonight.  President Obama actually is able to thank Democrats and Republicans in the Senate for moving a jobs bill forward.  After being told by the GOP that the president should be tending to only that one thing and that the American people cared only about jobs today, five Republican senators out of 41 voted to allow a debate about a jobs bill.  And this, we mark as breaking news.

The new jobs bill needed 60 votes to overcome its first procedural hurdle.  The entire Democratic Caucus voting “aye” except Senator Ben Nelson of Nebraska and with Democratic Senator Frank Lautenberg due to illness, three Republican votes were needed for passage.

The two moderate senators, Collins and Snowe, provided two votes, and the newly elected senator from Massachusetts, Senator Brown, provided a third.  Senator Kit Bond of Missouri, Ohio Republican George Voinovich, both of them retiring in November, two more Republican votes in favor of moving forward to debate at least and a vote.  But the rest of the Republicans voted no.

You may recall that Senate Majority Leader Reid had decided to bring a scaled-down version of the jobs bill to the floor, explaining that additional job creation measures would be forthcoming later, and in so doing, Reid scrapped a jobs bill negotiated by Senator Baucus and Republican Senator Grassley.  Republicans have consistently groused about that since Reid‘s action, but not much point in blaming things on Reid when so much of the GOP is still playing by the rule of no.

Senator Tom Coburn may have been the most forthcoming on behalf of his party—when at a recent town hall meeting he said that, quote, “I love gridlock.  I think we‘re better off when we‘re gridlocked because we‘re not passing things.”

Majority Leader Reid however celebrated his victory today.

(BEGIN VIDEO CLIP)

REID:  I‘m very, very happy that we are able to get this done.  But there are some winners—not any individual senator, not Democrats or Republicans, the winners are small business people throughout this country.  On my trip home this past 10 days, people are excited about the fact they may be able to get to write-off $250,000 for things they badly need—not depreciate, just write it off.  And the other three provisions are wonderful, to extend the highway bill for a year is going to save thousands of jobs in Nevada and a million jobs throughout the country.  So, the small business community throughout this country are winners and also workers—this is going to create jobs.

(END VIDEO CLIP)

OLBERMANN:  And the president is saying in his statement in response to this, quoting, “The American people want to see Washington put aside partisan differences and make progress on jobs, and today, the Senate took one more important step forward in doing that.  I‘m grateful to the Democratic and Republican senators who voted to support these investments in infrastructure and small businesses.  I look forward to working with members from both parties to get legislation signed and the American people back to work.”

Let‘s bring in the Washington editor of “The Nation” magazine, Chris Hayes.

Chris, good evening.

CHRIS HAYES, THE NATION:  Good evening, Keith.

OLBERMANN:  So, is this the dawn of bipartisanship or did five Republicans just take advantage of an easy chance to look bipartisan in advance of the health care summit on Thursday?

HAYES:  Well, I don‘t—I don‘t think it was that.  I mean, I think

in the case of Scott Brown and the senators from Maine, they‘re essentially

you know, voting their state.  I mean, you would think that that would extend more deeply on other issues.

               

I think on the two retiring senators, it‘s sort of hard to know what they thought.  But let‘s keep in mind—I mean, this is a very small bill.  It‘s $15 billion, most of which are tax cuts for small business.

I mean, in some ways, it‘s almost in the success, a broader condemnation of just where we stand with the Senate, which is that if you put together a very small bill, mostly tax cuts for small businesses, you can eke out a slender bipartisan victory.

OLBERMANN:  Five say aye, 36 say nay.

HAYES:  Right.  Yes, exactly.  Exactly.

OLBERMANN:  It‘s bipartisanship.  It‘s the dawn of a new era.  Gold will fall from the skies.

So, what about the bill, itself?  $15 billion and—as you pointed out—nearly all tax cuts for small businesses and puppies.  Any chance it passes?

HAYES:  I think, at this point, the chances look good.  Although, God, you do not want to be manning the phones in Scott Brown‘s office tomorrow morning.  I mean, if you look on the Internet now or on Twitter and the Scott Brown hashtag, I mean, it‘s unbelievable the backlash that‘s going to be pouring in tomorrow.  I mean, there‘s just going to be tremendous denunciations, Rush Limbaugh, Glenn—everyone is going to be going down the line.

I think, you know, it will be hard for him to put back, but at this point, it‘s cleared the biggest procedural hurdle.  It‘s small enough, it‘s going to pass.

OLBERMANN:  The tea party is announcing a new candidate to run against Scott Brown in the next election.  I just made that up.  It‘s just a prediction.

HAYES:  No.  You know, I don‘t think you‘re far off.  I think you‘re counting down.

OLBERMANN:  The majority leader discussed to some degree on that ultraviolet ways of his the huge victory here.  But is it really?  Because one of the reasons that he scrapped Baucus/Grassley on jobs was that it contained these goodies for Republicans that Reid feared might have been used against the Democrats had it passed.

HAYES:  Yes.  I mean, this is an affirmation in the short-term of the short-term tactic, right, of scrapping that, of trying to precipitate a confrontation on something that, you know, it‘s very hard to vote against and it‘s a narrow tactical victory.

But when you look at the scope of the problem we‘re facing in terms of jobs, we have a cover story in “The Nation” this week about how to create 18 million jobs which is around the order of magnitude we‘re going to need if we‘re going to get to full employment by 2012 -- you know, this is so, so paltry, it‘s 1/10 of the House bill.  If this is the best the Senate can produce, even with a fairly deft political maneuver by Harry Reid, we are in big, big trouble.

OLBERMANN:  Well, it comes in the context of what Tom Coburn said.  Now, I would find this hard to believe, I‘ll read it again.  It sounds impossible, let alone from a senator from a state in this country, but also, even just from a doctor, it sounds just—somehow I think it sounds like he‘s violating the Hippocratic Oath.  “I love gridlock.”

HAYES:  Yes.

OLBERMANN:  “I think we‘re better off when we‘re gridlocked because we‘re not passing things.”

Well, you know, what are you doing there?  Bayh at least quit because they weren‘t passing things.  If you‘re not going to pass things, go home, right?

HAYES:  This is—this really gets to a crucial point.  There‘s a crucial asymmetry in the disposition of Republican legislators and Democratic legislators.  Democratic legislators—I‘m generalizing—but on the whole, want to legislate.  They want to pass legislation.  They think that‘s their job.

Republican legislators don‘t really want to legislate so much as they want to sort of funnel resources of the state into the hands of their backers and their clients and they want to obstruct, obstruct, obstruct.  I mean, the old William F. Buckley, Jr. quote is standing athwart history yelling “Stop.”

That‘s why all the things that tie up government, the filibuster, even in short term, it might favor one party or the other.  In the long term, it favors the forces of reaction.  Tom Coburn understands that well.  I wish that all the Republican senators were as a—were as articulate in spelling that out.

OLBERMANN:  Do not recognize the primacy of the Democrats in the last election.  Do not acknowledge the president of the United States is not a Republican.  Do not pass go.  Do not give $200.

Chris Hayes of “The Nation”—except to your favorite contributor—many thanks, Chris.

HAYES:  Thank you, Keith.

OLBERMANN:  Dick Cheney and the memo that proves waterboarding works.  How the waterboarding of August 2002 led to the arrest of a would-be dirty bomber in May 2002.  Wow!  That really did work.  John Dean—next.

(COMMERCIAL BREAK)

OLBERMANN:  The Justice Department ruling on Bush‘s torture lawyers—it was a white wash, but it does reveal that the memo Cheney thinks proves torture works doesn‘t prove torture works.  The crucial date in the memo is off by a full year.  John Dean in a moment, and an update on the former vice president‘s health. 

First, on this date in 1928 was born the great actor Paul Dooley, the second Oscar in the play “The Odd Couple,” flawless in “Curb Your Enthusiasm,” and still flawless as the father in “Breaking Away.”  And on this date in 1918 was born Don Pardo, who was hired as a studio announcer by NBC radio in 1944 and is still on the job today.  If he lasts another ten years, they‘ll let him put up a poster on the wall of his announce booth. 

Still his greatest announcement, “weekend update is brought to you by pussy whip, the first dessert topping for cats.”  Happy birthday.  Let‘s play oddball. 

We begin in the Palermo section of Buenos Aires of Argentina.  Over the past week, heavy rains have caused severe flooding throughout the city.  Businesses had to be closed.  Traffic on highways gridlocked.  But the trains plowed through.  That‘s your regularly scheduled tidal wave.  Pedestrians waiting to cross the tracks got drenched.  But no one was injured. 

To the Internets, where today there was a new record set for most expensive comic book ever.  Someone has paid a cool million for Action Comic‘s number one, “Superman‘s” first comic book, originally available in 1938 for a dime.  This morning, the book was sold on ComicConnect.com to a, quote, well known individual in New York.  Previous record was for a different Action Comic‘s number one.  The drummer for the band “System of a Down” paid 317,000 for one in 2009.  For roughly three times that price, this book is in better condition.  And as a bonus, the new owner also gets a VHS copy of that awful “Superman” movie with Richard Pryor. 

Finally in Washington, year of the Tiger.  All of the snowfall in the nation‘s capital put these celebrations on hold for a while.  Finally, yesterday in Chinatown. there he were able to usher in the Chinese New Year, which according to its calendar is the year of the Tiger, and now also, coincidentally, the year of the Tiger apology.  A lot of fun was had by all, which is more than you can say for the people inside this tiger outfit at a mall somewhere on the Internets. 

A real revelation in the Justice Department; white wash of the Bush torture lawyers.  The arrest Dick Cheney says proves torture works happened before the guys were tortured and gave the other guy up.  Whoops.  John Dean, next.

(COMMERCIAL BREAK)

OLBERMANN:  A classified CIA memo that Dick Cheney has insisted would prove he and President Bush were right to torture turns out to instead prove that the arrest of a terror suspect Cheney said was given up during torture actually took place before the torture and not after the torture.  As the newly released Justice Department white wash of the Bush torture attorneys notes, Mr. Cheney‘s argument hangs on, quote, “plainly inaccurate information.” 

Michael Isikoff of “Newsweek” reports the previously classified memo, quote, “significantly misstated the timing of the capture of one al Qaeda suspect in order to make a claim that seems to be patently false.” 

The memo, cited by Dick Cheney, stated that the water-boarding of al Qaeda operative Abu Zubaydah led to the arrest of suspected dirty bomb plotter Jose Padilla in May, 2003.  But, as Isikoff also reports, the review points out that the memo was wrong.  Padilla was arrested not in May, 2003, but May, 2002.  The administration did not authorize enhanced interrogation techniques until August, 2002.  Zubaydah was not interrogated until August of 2002.  Therefore, he could not have led them to the capture of a man who had been arrested three months earlier. 

The report goes further, stating that the head of the Office of Legal Counsel, Steven Bradbury, relied upon this plainly inaccurate information in two department memos, citing the CIA memo on Zubaydah‘s interrogation. 

Meanwhile, “Newsweek” also reporting that the primary author of the torture memos, John Yoo, told Justice Department investigators, quote, “the president‘s war making authority was so broad that he had the Constitutional power to order a village to be massacred.” 

According to the OPR report, Yoo was examined on presidential war time powers and an investigator questioning, “what about ordering a village of resistance to be massacred, is that a power the president could legally?”  And Yoo answered, “yeah, although let me say this—so certainly that would fall within the commander-in-chief‘s power over tactical decisions.”  “To order a village of citizens to be exterminated,” the investigator asked?  Yoo replied, “sure.” 

Joining me now is columnist for FindLaw.com, the author of “Blind Ambition, the End of the Story” and former White House counsel, John Dean.  Thanks for your time tonight, sir. 

JOHN DEAN, FINDLAW.COM:  Thank you, Keith. 

OLBERMANN:  This is an extraordinary development.  How could Cheney have thought that memo would prove the case, when it would have required the information to travel backwards in time? 

DEAN:  Very difficult.  Under the circumstances, I don‘t want to say when I‘ve heard he‘s not in good shape right now, that he‘s dead wrong, but that is clearly what happened.  And I hope him well so he can come out and explain this.  It‘s not likely.  He is not the kind of man who recognizes shame, mistake, humility.  So I‘d be very curious to hear what he does have to say, because they‘ve caught him just relying on something that is totally bogus.  A lie has been put to him. 

OLBERMANN:  Former Secretary of State Powell dismissed Mr. Cheney‘s claims that the country was less safe under the current president.  He said Cheney‘s attacks—the quote was “are not borne out by the facts.”  What happens to the former vice president‘s credibility in this topic now?  I mean, the memo literally proves that he put the cart before the horse.  I mean, it‘s as easy a—either mistake or lie to fix and adjust accordingly as you could imagine. 

DEAN:  That that cart had no wheels on it, even when we got it in front.  So I think his credibility is in deep trouble, with Powell undercutting him, with General Petraeus doing the same thing, as for these tactics.  And I‘m not sure how broad his credibility really has been.  He lost it in the last administration, in the second term.  He wasn‘t selling these kinds of ideas then.  And beyond the reach of his family, I‘m not sure how many followers he really has at this point, Keith. 

OLBERMANN:  I‘ll get back to Mr. Cheney‘s health in a moment.  But let me broaden this out.  Senator Leahy said he‘s going to have a hearing this week on this OPR report, which basically let the lawyers who were involved in this, Yoo Bybee and Bradbury, off with not even a slap on the wrist, sort of like a pretend slap on the wrist.  If the Justice Department is not going to do anything to these guys, will legally—legally, can the Congress do anything?  And do you suspect politically it will? 

DEAN:  They really have no sanction they can impose.  What they can do is what they can do often very effectively, is put that pitiless spotlight of publicity on these issues, and that in turn can provoke actions.  You know, the fact that they have ruled that this isn‘t something they‘re going to refer to a state bar for disciplinary proceedings actually doesn‘t mean that these guys still couldn‘t be prosecuted.  And if more evidence is brought out by these hearings by Leahy or others on the Congress, they‘re not home free by a long shot. 

So that could change the attitudes of a lot of people about if they were educated, understood the implications, what this has done to the country, how negatively it affected us.  These guys are just not—as I say, they‘re not at home base yet, by any stretch of the imagination. 

OLBERMANN:  And going even further, the finding about what John Yoo said about ordering the massacre of a village—I guess this goes to the War Powers Act.  It goes to declarations of war, what the Senate‘s role was supposed to be in that, how we haven‘t really observed that for nearly half a century now.  How does that fit into that whole horizon of who is in charge, and what a president can order happening in what might be a declared or undeclared war? 

DEAN:  Well, he seems to find no real boundaries on the president‘s war powers, under the Office of Commander in Chief, a very vague term that has been increasingly filled in.  But this statement is very consistent with his pattern.  In 2005, for example, I remember when he had that debate in Chicago with a Notre Dame law professor, and he literally refused to reject the fact that you could actually have a child—a male child have his testicles crushed as a tactic to force somebody to speak.  It was outrageous. 

Then he went before the House Judiciary Committee in 2008, and when Chairman Conyers started pressing him, could the president have the power to bury somebody alive to force them?  Well, again, he refused to reject that.  So this is—you know, his bad judgment that was called out in the Office of Professional Responsibility report has been rather consistent, in that he will push things to their outer limit consistently. 

OLBERMANN:  And now he‘s a columnist and a visiting professor somewhere.  John Dean, White House counsel to Richard Nixon, author of “Blind Ambition, the End of the Story,” the new version of his great book now.  As always, great thanks for your time. 

DEAN:  Thank you, Keith. 

OLBERMANN:  As John mentioned, the breaking news at this hour that the former vice president is resting comfortably tonight in a DC hospital after experiencing chest pains.  Mr. Cheney undergoing an angiogram earlier today at George Washington University Hospital.  Doctors telling NBC news that Mr. Cheney is stable, but may receive additional treatment tomorrow. 

The former vice president, of course, has had a long history of heart ailments.  He suffered four heart attacks, his first when he was just 37 years old.  There is no gauge yet on how serious these incidents today have been. 

So the conservative conference picked Ron Paul for president with nearly five times as much support as Sarah Palin, and five times as much of a connection to the John Birch Society? 

Worsts, a proud new slogan for that conservative movement from its self-described rodeo clown.  We don‘t want to evolve. 

And when Rachel joins you at the top of the hour, our long national nightmare is over.  She will reveal the new exciting sexy new name for the filibuster that will get the whole nation dancing again to the beat of filibuster reform.  Only it‘s called the filibuster anymore.  Now it‘s going to be called the—

(COMMERCIAL BREAK)

OLBERMANN:  Now the second of tonight‘s quick comments.  And a mind may be a terrible thing to waste, but if you waste 15 million of them, apparently you get Texas.  If a University of Texas poll is correct, that is how many Texans, 60 percent of the population, either believe humans and dinosaurs lived at the same time or are not sure. 

Oh, this gets much worse.  Evolution does OK in Texas; 68 percent believe in it, with or without the, quote, guiding hand from god.  Human evolution?  Not so much; 50 percent with or without. 

I‘d like to be able to pin this on political affiliation, but it‘s almost a tie; 51 percent of Democrats said they either never go to church or only go once or twice a year; 45 percent of Republicans said they either never go to church or only go once or twice a year. 

When pollsters asked Texans if they disagreed or agreed with the statement, “God created human beings pretty much in their present form about 10,000 years ago,” 38 percent of Texans agreed.  OK, the joke that goes with that statistic is so obvious, I‘ll just skip it. 

Conclusion, ultimately, Texas may not have to secede from the union. 

It may just collectively drop off like a vestigial tail.

(COMMERCIAL BREAK)

OLBERMANN:  The big fired up conservative CPAC, Sarah Palin, Rush Limbaugh, Dick Cheney crowd chooses its favorite for the presidential nomination—Ron Paul?  That‘s next, but first tonight‘s worst persons in the world. 

The bronze to the city leaders of Omsk in Russia.  With President Dmitri Medvedev headed to town, they hastily sprinkled fresh snow over the older dirty snow on the city‘s main drag, and urgently pulled down advertising posters for a children‘s play which read “we await you, Merry Gnome.”

President Medvedev is reportedly five feet, four inches tall, or possibly five-three.  Yet, merry he is not. 

Our runner up, Bob Marshall, Virginia state delegate, representing Manassas.  At a news conference opposing state funding for Planned Parenthood, Mr. Marshall announced, quote, “the number of children who were born subsequent to a first abortion with handicaps has increased dramatically.  Why?  Because when you abort the first born of any, nature takes its vengeance on the subsequent children.  In the Old Testament, the first born of every being, animal and man, was dedicated to the lord.  There‘s a special punishment Christians would suggest.” 

Well, maybe.  But what you‘re suggesting is that challenged children are God‘s punishment, which doesn‘t even hold together, because it doesn‘t explain why God is punishing women who had abortions with special needs kids.  Marshall‘s statement is trouble for two politicians: Virginia Governor Bob McDonnell, who like Marshall wants to cut off funding for Planned Parenthood in the state, and little Ms. Umbrage herself, Sarah Palin, who Marshall apparently thinks is being punished for something.  I mean, he seems to imply maybe she had an abortion.  Your move, Mrs. Palin. 

But our winner, Lonesome Roads himself, good old corrupt Glenn Beck.  There were a lot of knee snap slappers in his speech to the conservative CPAC orgy over the weekend, but one stands out.  He was explaining the difference from the conservative point of view between communists and progressives; “revolution or evolution, that‘s the difference.  Revolution or evolution.  I am really a progressive.  I‘m for progress.  I just want to evolve into a nicer place.  Well, we don‘t want to evolve.” 

Well, we conservatives don‘t want to evolve.  Conservatism, so easy a cave man could do it.  Lonesome Roads Beck, today‘s Worst Person—I‘d miss him if he was gone—in the World.

(COMMERCIAL BREAK) 

OLBERMANN:  The big old conservative get together thing, known as CPAC, is finally over.  Though it may not have become Tea-PAC quite yet, a great, big identity crisis is apparent, because the winner of CPAC‘s presidential straw poll was not former half Governor Sarah Palin, and not former Governor and kind of conservative Mitt Romney, and not even just got the religion Tim “Nine Iron” Pawlenty. 

Instead, it was 70-year-old thorn in the Republican side Congressman Ron Paul.  CPAC organizers were evidently embarrassed by Paul‘s upset victory.  A spokesman alerting reporters to the booing that accompanied the result.  Yes, but also there were cheers. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  The winner of this year‘s C-PAC straw poll is—the winner of this year‘s CPAC straw poll is Texas Congressman Ron Paul.

(END VIDEO CLIP)

OLBERMANN:  Thirty one percent of the vote, Romney 22.  Badly trailing at seven percent, Palin, who didn‘t even go to CPAC.  Other single digit wonders, like former Arkansas Governor Mike Huckabee, although sounding like a sore loser, may have hit upon some truth, saying the Tea Parties have effectively, quote, “taken all the oxygen out of the room.”  Huckabee also blasted CPAC as, quote, “almost pay for play” in the way it sets up sponsorships.

And giving a whole new meaning to pay for play, Glenn Beck, who gave the keynote speech there, chalk board and all, railing against progressivism as the American disease, called it cancerous.  And if that sounds vaguely familiar, it‘s because everything we‘ve heard about Beck‘s upcoming book, as well as the rallies built around the book, have a markedly similar message.  And as “Politico” reported, tickets to those rallies cost 130 bucks. 

Corrupt much?  Finally, speaking of corrupt, “Politico” correcting a detail in a story we reported here as well.  When James O‘Keefe attended CPAC, he did so with the consent of his pretrial officer, not a parole officer.  A parole officer would be later. 

Let‘s turn now to the senior political reporter for “Politico,” Jonathan Martin.  Thanks for your time tonight, sir. 

JONATHAN MARTIN, “POLITICO”:  Hi, Keith. 

OLBERMANN:  You were there.  Put the Ron Paul straw poll into some sort of context for us. 

MARTIN:  Sure.  Ron Paul still retains a strong following, especially, Keith, among college kids.  Over half of the folks that voted in that straw poll were self-IDed students.  So this is something of a holdover from the ‘08 race.  He is probably not going to be the nominee of his party in 2012.  But his success at the straw poll does reflect I think the fact that this sort of libertarian perspective still does carry some cache in the conservative grassroots. 

OLBERMANN:  But with all that as preface, do you see some sort of overlap between the Paul libertarians and the Tea Partiers?  And would that be to the chagrin of the conservatives or is that something else in play? 

MARTIN:  Oh, well, Keith, I think you‘re absolutely right.  There is certainly some overlap between those two parties.  The question for Republicans is, can they harness it for their good this fall?  Can they get that sort of passion and energy, you know, behind some of their nominees?  The challenge is going to be if some of those Tea Party candidates run third party independent bids.  That could cause problems for the GOP. 

So far, candidates like McDonnell in Virginia and Brown in Massachusetts have done a good job actually harnessing it for their own good. 

OLBERMANN:  Does it not, at some point, have to become clear to voters where conservatives are?  I mean, most Republicans would never acknowledge that there is any risk of that fracture or even some of the candidates would be in trouble as Hoffman was in the New York 23rd, because of a third party movement, if it‘s Tea Party or something else?  But wasn‘t this weekend sort of evidence of that?  Because the whole weekend looks like an MC Escher drawing of politics.  Cheney is more of the future than Palin.  And Romney is the past tense, but he got more votes than Palin.  And they love Beck, and Beck hates Ron Paul.  And Ron Paul is the winner. 

MARTIN:  And don‘t forget Marco Rubio, the Florida candidate for the Senate down there, who also spoke.  So there‘s a lot of personalities, Keith, some past, some present, some future, who were on display there.  The question for conservatives is, can they bring those folks together, sing off the same sheet of music to try and, you know, harness the energy going into this fall?  And I think that remains to be an opening question. 

Look at places like Kentucky, for example, where you‘ve got Ron Paul‘s son Rand running against an establishment candidate in a Republican primary.  And so far, Paul is faring strongly down there.  so it just remains to be seen as to what‘s going to happen in some of these primaries this spring and summer. 

OLBERMANN:  And they share three letters, but that‘s about it.  Paul and Palin; where in the heck was the former governor over the weekend?  Was it a mistake not attending? 

MARTIN:  I think, Keith, she would have done better in the straw poll had she showed up.  But I think her finish does underscore something that we at times perhaps miss in the media.  She‘s popular among conservatives.  There‘s no question about it.  But that‘s different, I think, than those folks wanting to make her president.  I think that‘s an important distinction to make.  I think it was illustrated by her showing. 

Yes, she can draw crowds.  Yes, she can raise money for both sides, by the way.  But that doesn‘t necessarily mean she‘s her party‘s front runner for the presidency, even among hardcore conservative activists, of the sort to show up at an event like this. 

OLBERMANN:  Is all of this going to shake out in some order, at some point?  Or is there going to be confusion on the conservative side of the equation for a while? 

MARTIN:  There is no question that right now there is no clear conservative leader.  That was, you know, on vivid display, given all those voices that you mentioned previously, that MC Escher sort of frame that you mentioned.  Look, once we get into 2011, you get past the midterms, and this primary for the presidency starts happening, you‘ll see a more clear figure emerge. 

OLBERMANN:  Jonathan Martin of Politico.com, great thanks for your time.

MARTIN:  Thanks, Keith.

OLBERMANN:  That‘s COUNTDOWN for this, the 2,489th day since the previous president declared mission accomplished in Iraq.  I‘m Keith Olbermann, good night and good night. 

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

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