updated 7/10/2013 10:31:53 AM ET 2013-07-10T14:31:53

THE RACHEL MADDOW SHOW
July 9, 2013
Guests: Nicolle Wallace, Rosa Brooks


RACHEL MADDOW, HOST: Thanks. Cheers.

I feel a little embarrassed but in a nice way. That`s very
flattering.

All right. Thanks to you for joining us this hour. It`s not really a
tan. I`m just blushing.

All right. Chances are, unless you are trying to promote your awesome
band, chances are, you maybe do not visit the site MySpace that much
anymore. Remember MySpace?

This is what MySpace looks like these days. They made it very fancy.

But in 2009, it was a less fancy MySpace page that created a big
problem for a Republican Senate candidate. This is the band Commander, a
publicity shot for Commander, the band.

The handsome lad on the far left there, the one with the shoulder
length hairdo, his name is Chris Hightower. Mr. Hightower sang vocals in
these skulls with bat wings and fangs and lightning, metal band called
Commander!

But while he was fronting his awesome band back in 2009, the lead
singer for Commander also had time to moonlight as campaign spokesman for a
United States Senate candidate. A man named Rand Paul. It was his role in
the Rand Paul Senate campaign that led people curious about Mr. Hightower
to troll through his presence on MySpace.

And there, it was soon this covered in addition to the tough guy band
photos of Commander, Mr. Hightower`s site also included comments like this.
Posted on his MySpace page. "Happy N-word day." That`s in celebration of
Martin Luther King Jr. Day that year. Happy N-word day posted alongside
this photo on the MySpace page of Rand Paul`s Senate campaign spokesperson.

This stuff was reportedly posted there for a couple of years and was
still just there waiting to be discovered once Rand Paul picked this guy to
be the public face of his campaign for U.S. Senate.

Ultimately, once this all was reported out, Mr. Hightower had to
resign as spokesman for the Senate campaign. But that was a campaign Rand
Paul went on to win.

That embarrassment happened back in 2009, and part of the reason I
think that issue stuck more than it might have with anybody else in
politics is because this all happened only about a year after Rand Paul`s
father, Ron Paul, as a 2008 presidential candidate, had to answer for
really overtly racist content in his Ron Paul newsletters in something
called the "Ron Paul Report."

These were things that Congressman Ron Paul had signed his name to and
sent out for years to people who wanted to hear from Ron Paul, the great
libertarian hope. This is one of the newsletters from February 1990.
Quote, "Boy, it sure burns me" -- it`s written in the first person like
that -- "it sure burns me, to have a national holiday for that pro-
communist philanderer, Martin Luther King. I voted against this outrage
time and time again as a congressman. What an infamy that Ronald Reagan
approved it. We can thank him for our annual hate whitey day."

From this Ron Paul report in October 1992, quote, "If you live in
major city you probably learned about the newest threat to your life and
limb and your family. It`s called carjacking. It is the hip hop thing to
do among the urban youth who play unsuspecting whites like pianos.

What can do? More and more Americans are carrying a gun in the car.
An ex-cop I know advises that if you have to use a gun on a youth, you
should leave the scene immediately, disposing of the wiped off gun as soon
as possible. Such a gun cannot, of course, be registered to you, but one
bought privately through the classifieds, for example."

This first person account from the newsletter continues, "I frankly
don`t know what to make of such advice, but in my little town of Lake
Jackson, Texas, I urged everyone in my family to learn to use a gun in
self-defense, for the animals are coming."

When "The New Republic" reported on the content of some of this stuff
bearing Ron Paul`s name when he was a presidential candidate back in 2008,
the response from the then-Republican candidate for president was he had no
idea who was writing these newsletters or what was in them -- these Ron
Paul newsletters that were written in the first person that everybody
though he was writing, himself, and that he signed his name to.

(BEGIN VIDEO CLIP)

FORMER REP. RON REAGAN (R), FORMER PRESIDENTIAL CANDIDATE: I have no
idea. Have you ever heard of a publisher of a magazine not knowing every
single thing? The editor is responsible for the daily activities and
people came and gone, there are people who were hired. I don`t know any of
their names. I do not -- absolutely honestly do not know who wrote those
things.

(END VIDEO CLIP)

MADDOW: The editor there is responsible. Even though Ron Paul said
he had no idea who was writing all this racist stuff in his newsletters,
everybody around him and him there a little bit himself, they seem to know
exactly who was writing this stuff or who should be blamed. Ron Paul`s
chief ghost writer, a guy by name of Lew Rockwell, blame him. He was guy
who was deal with this stuff, not me.

And even though Ron Paul did everything he could do distance himself
from the racist the stuff in the news letters that everyone was saying was
actually written by Lew Rockwell even though it was signed Ron Paul, as
soon as Ron Paul retired from Congress this year, he started up his Ron
Paul Institute, guess who he appointed to the board of his Ron Paul
Institute? Hey, Lew Rockwell, the guy they blamed for all the super
racist, "the animals are coming" newsletters. He gets a sit on the board.

Also on the board of Ron Paul`s institute, a professor name Walter
Block who says, "The real problem with the Civil War is the wrong side won
and Abraham Lincoln was a monster."

And it is become all that has happened already that you might be
forgiven today if today`s flurry of reporting about a Rand Paul Senate
staffer felt a little bit like deja vu. A conservative Web site in
Washington today, deep dived today into the background of a Rand Paul
staffer who looks like this. You might have seen the photo today.

Do we have? Yes. There we go.

He does not wear this mask thing to work anymore, but he used to. And
just in case it`s not totally clear, those are not decorative stars on his
wrestling mask. That is a Confederate flag wrestling mask.

This is a man who likes to be called the southern avenger. His real
name is Jack Hunter. And it`s not like Mr. Hunter has been hiding this
persona under a bushel, right? Here`s his official Web site, branded
prominently with the Southern Avenger logo. His YouTube page has the S.A.,
Southern Avenger logo. That`s his Southern Avenger logo.

His Twitter handle is all Southern Avenger.

And when he goes on FOX Business Network, which he does frequently,
they describe him as someone who co-wrote Rand Paul`s book and is someone
sometimes known as the Southern Avenger. Have to talk to the producer that
had to write that chyron. Did that raise questions for you about why you
booked this guy?

This is the job that Mr. Hunter had before Rand Paul hired him to come
to Washington to be a Senate staffer and to ghost write his book. Mr.
Hunter was a radio commentator and he`d say things like, quote, "The term
diversity has become nothing more than a code word for not white. It`s a
shame just because we have fair skin, we are always denied fair treatment."

Or this, "Modern Americans aren`t wrong to deplore the millions of
Mexicans coming here now. A nonwhite majority America would simply cease
to be America."

Or there`s this one about how John Wilkes Booth`s heart was in the
right place. John Wilkes Booth, of course, who shot Lincoln.

The Southern Avenger does regret that Lincoln`s murder automatically
turned him into a martyr. He says he raises a personal toast every May
10th to celebrate the birthday of John Wilkes Booth, the man who shot
Lincoln.

And that was how he was making his bones in the world. That was his
public persona when Rand Paul hired him to bring him to Washington. This
problem, though, is not a Paul family affliction. I mean, it is obviously
a Paul family affliction, but not them, alone.

The Southern Avenger, same guy, was also hired by Jim DeMint to co-
write his most recent book. Jim DeMint, of course, is no longer a senator.
He quit being a senator to go run the Heritage Foundation, the conservative
think tank. Once he was there he decided the Heritage Foundation should
write a big comprehensive study on why immigration reform is a terrible
idea.

To co-author the study, he hired a guy whose doctoral dissertation had
been about the intellectual inferiority of immigrants in the United States.
Immigrants do not have the same level of cognitive ability as native born
Americans. Quote, "No one knows whether Hispanics will ever reach IQ
parity with whites but the prediction that new Hispanic immigrants will
have low IQ children and grandchildren is difficult to argue against."

By 2010, that same guy was posting on white nationalist Web sites like
"Alternative Right," which is a full-on white power, white supremacist Web
site. Posting there saying that Hispanics are substantially more likely
than whites to commit serious crimes. Quote, "These findings are not due
to age differences or immigration violations or other statistical
artifacts." He called it simply the reality of Hispanic crime.

This guy`s entire background, his whole record of public output, what
he brings to the table as a potential hire, is this idea that you can
qualitatively rank human beings intellectually by race.

(BEGIN VIDEO CLIP)

JASON RICHWINE, AMERICAN ENTEPRISE INSTITUTE: You have Jews with the
highest average IQ, usually followed by East Asians, and then you have non-
Jewish whites, Hispanics, and then blacks.

(END VIDEO CLIP)

MADDOW: That`s, of course, the racial hierarchy of IQ explained out
of American Enterprise Institute forum, while David Frum was out there and
smiled.

This is the guy who Jim DeMint hired to be his senior policy analyst
at the Heritage Foundation, specifically to have that guy crunch the
numbers on whether immigration reform was a good idea.

And lo and behold, using this young man`s formula which assumes
nonwhite immigrants just racially don`t have capacity to contribute
anything to this country -- lo and behold, when you use that formula, the
study concludes that immigration reform is going to be darn expensive since
these people inherently are just parasites.

That Heritage Foundation report which said that immigration reform
would, therefore, cost something like $6 trillion turned out to be kind of
a mathematical laughing stalk before people realized it was written by the
white supremacist guy. But when that factor emerged, the racist, IQ-
ranking, senior policy analyst at Heritage under Jim DeMint was allowed to
quietly resign. Since then, Jim DeMint and the Heritage Foundation continue
to cite his study and using it to try to kill immigration reform.

So, the question, not just today, but persistently for the modern
Republican Party is, is this embarrassing? I mean, sometimes it`s
embarrassing to them, right, and sometimes it`s not. The guy with the
MySpace page and happy N-word day and the lynching photo, apparently that
was embarrassing, more embarrassing than commander was, and he had to be
fired.

When the Republican Senate majority leader in 2002 said the country
would not have had all these problems over the years if he just elected a
segregationist president when we had the chance with Strom Thurmond, that
apparently was embarrassing and he had to lose his job.

But in 2007 when Ron Paul was running for president, in addition to
everything else, the newsletters and all the rest of it, he got donations
from the Klan leader who founded Storm Front, the Nazi white nationalist
web forum, that apparently wasn`t embarrassing. Ron Paul did not return
those donations and quite avowedly did not feel bad about keeping them.

In terms of today`s Rand Paul news, Dave Weigel reports today the
Confederate flag mask-wearing Southern Avenger guy, that guy, that
reporting on him as a Rand Paul staffer is not likely to affect his
standing or his job in Rand Paul world.

The staffer in question told the "Free Beacon" today he does not stand
by some of the most inflammatory things he said but he believes -- he said
he believed in the past but avowedly stood by them back at the time Rand
Paul was hiring him in the first place and having him write his book.

So, at the micro level, there`s this unresolved question in Republican
politics about whether overt Confederate white supremacist stuff is
embarrassing. Whether people should be able to hold those views and also
be active in mainstream conservative politics and mainstream Republican
Party politics.

At the macro level, though, beyond those kind of staffing decisions,
there`s also the larger strategic question of what the Republican Party
wants to be. Could the -- should the Republican Party be just the party of
aggrieved white people? Even to the extent that it may stray occasionally
into Confederate territory, in order to do that, do you want that in order
to maximize every possible white vote you can get out of an electorate that
is less and less white all the time? Does the party want that?

Or does the party want to try to have any multiracial appeal at all?
And that overall strategic question looms every day over everyday decisions
that Republican politicians have to make right now.

When the immigration reform bill got to the Senate floor, 14
Republicans in senate voted for it. There was all this pressure to have a
big bipartisan bill on that vote, so not only would it pass the Senate but
enough Republicans would find their way to support it passing that it would
look like both Democrats an Republicans, at least some Republicans, could
be unified around the idea that immigration policies should be driven by
something at other than anti-immigrant animus.

All the Democrats are onboard, but only if some of the Republicans
could say yes enough to make it pass, maybe that would soften the party`s
image? That is how it got through the Senate. But now with each passing
day, it is looking less and less likely like it is is going to get through
the house because of Republican opposition there.

Conservative media is now essentially unified in telling Republicans
in the House they should not worry about trying to appeal to Hispanic
voters or anybody else other than base voters back home in their districts.

According to the "National Review" today, House Republicans should put
a stake through the heart of immigration reform. Stop apologizing for who
you are. Let your freak flag fly.

Which side wins this argument? Joining us now is my poor beleaguered
friend, Nicolle Wallace, former director for the George W. Bush
administration, former senior adviser for the McCain/Palin campaign.

Nicolle, I apologize, but it`s all true.

NICOLLE WALLACE, FORMER ADVISER, MCCAIN/PALIN CAMPAIGN: It`s so
awesome to come on ask mask guy, commando freak. Next time if you could
have a monkey on, it could just be better than all that.

So, you and I have talked a lot about George W. Bush and my service to
George W. Bush and all the times we`ve come on. And I will always be proud
to have worked for George W. Bush, to have worked for the entire Bush
family. There is no issue on which he was more right than comprehensive
immigration reform, and most recently, there was no statement that he
uttered that was more wise, and I think a more important warning to the
Republican Party than to do comprehensive immigration reform because it is
the right thing to do, not for political purpose.

And when you head down the path, when you even leave the impression
that, perhaps, your motive is political, this is what happens. You empower
pundits and conservative talk show hosts who are powerful, like it or not,
they are powerful in our world. But if your entire motive is political,
then you hand them the power to influence the outcome. If your motive is
to fix a problem -- let me just be clear. There is no more important
political purpose for Republicans than to show that we are competent and we
can govern. So forget about what group benefits. We must show that we
have competence because above all else, we`re supposed to be the party that
can fix things, that can do government better by making it smaller and
smarter, more efficient.

So, this is an opportunity for Republicans. This is an opportunity to
show we can get the policy right. This is an opportunity to show we are
ruled by not just by political motive but by a desire to do the right
thing. I re-read his 2006 address to the nation where George W. Bush made
a call on the Congress, but it was really a call to his own party to stand
with him and very few of them did, and that speech really laid out exactly
where we are today in the Senate bill.

So, Marco Rubio`s office has built on all of the failures of our 2006
effort. They have put together a much better effort. They brought along
the conservative sort of talking class as far as they can and to see it
fall apart now would be a policy this disaster. The political consequences
would be dire but they concern me far less than the consequences of getting
this policy wrong and missing the opportunity to do the right thing.

MADDOW: The conservative talking class, the pundits in the
conservative media, and on the conservative side were onboard with the idea
of comprehensive immigration reform, even if not to solve the problem.

WALLACE: Which is miraculous.

MADDOW: They were for a second, but it`s over now. They`ve all
flipped back. They really have, like FOX is against it. All the
conservative talk show hosts are against it.

And while your arguments about how George W. Bush and other pro-
immigration reform Republicans have addressed this matter, including Marco
Rubio to a certain extent are true, I remain fascinated by the arguments
against. Because the arguments against are really racist arguments. I
mean, they`re really about preserving the whiteness.

WALLACE: You`re talking about the political arguments.

MADDOW: Yes.

WALLACE: I really -- I -- I recent that politics were ever given any
credit for being the motive for doing this. This shouldn`t have been done
because we were in a dire political -- that was never George W. Bush`s
motive.

MADDOW: But a substantive argument is made about why we should do
this. The argument back about why we shouldn`t is an argument that has a
really disturbing character.

WALLACE: Well, some of them. I think you`ve highlighted the most
disturbing ones. But the argument to do this -- you know, again, I`ve been
in touch with Senator Rubio`s office and the best argument for
conservatives at a policy level who are uncomfortable with doing this is
that the alternative is to leave 11 million people in the shadows. And
forget that some of these people are serving in the military, that many of
these people are important parts of the fabric of the community.

These aren`t 11 million people living somewhere else. These aren`t 11
million people not living in your state. These are 11 million people
living in everybody`s state, living in everybody`s town, where if they get
into a car accident, their motive, their incentive is to leave the scene
because they`re undocumented. This is a disservice to everybody.

Everybody in this country that thinks that allowing 11 million people
to live in the shadows is the right thing to do. It`s on the wrong side of
history and the wrong side of this debate, whether Republicans or
Democrats.

MADDOW: Why can`t Republicans better self-police about keeping the
really overtly racist side of this argument at least under wraps? I mean,
the problem with the Jim DeMint thing is remarkable. Jim DeMint, takes
over, leaves the Senate in order to become more powerful he thinks at
Heritage, brings on this guy really from the deep and dirty corners of the
Internet. You have to go to places where you`re worried about the safety
of your future online shopping adventures when you go find out this stuff.

WALLACE: Yes.

MADDOW: And really tried to make that the centerpiece of the anti-
immigration argument. Among Republicans, they`re not arguing with
Democrats. This is an argument between Republicans.

WALLACE: Right. Sure, it has been since 2006.

MADDOW: Ron Paul, Jim DeMint, really deep, dark stuff there persists
and it`s not going anywhere.

And the only way to stamp it out is to shine a light on it, as you did
quite expertly, and to prevail. I mean, George W. Bush is going to attend
a nationalization ceremony tomorrow. I was in contact with his office.
And he`s not trying to weigh in to the politics of this or the legislative
process. He made a grander and a greater effort than anyone has in a very
long time in 2005 and 2006.

But I think that to line up behind Marco Rubio and the 13 other
Republicans who voted for it in the Senate, to line up behind Paul Ryan who
in the House has been extremely constructive, cares about comprehensive
immigration reform, he has complete credibility with the most conservative
Republicans in our party and the most conservative Republicans in the House
and, you know, the hope for people like me who care about the future of the
Republican Party, doing the right thing and then reaping the political
benefits after doing the right thing is that those voices will prevail.

MADDOW: We`ll see. It`s going to be --

WALLACE: You`re on it. Masks, monkeys, and bands.

MADDOW: Next time, there will be monkeys.

WALLACE: There must be monkeys.

MADDOW: Nicolle Wallace, you`re a dear friend for doing this. Former
communications director for George W. Bush, and former senior adviser for
McCain/Palin, for which you are soldier in penance, it`s great it have you
here.

WALLACE: Thank you.

MADDOW: Thank you so much. We`ll be right back.

(COMMERCIAL BREAK)

MADDOW: December 19th, 1998, a date that will go down in U.S.
history.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The vote was in. William Jefferson Clinton has
been impeached by the House of Representatives on at least one article. It
will go to the United States Senate.

(END VIDEO CLIP)

MADDOW: December 19th, 1998, President Bill Clinton impeached in the
House. After the House impeached President Clinton, that`s kind of like
being indicted, having charges brought against you, after that, it was on
to the Senate to see if he would be convicted of those charges that were
brought in the House.

And so, Mr. Clinton, with his presidency hanging in the balance,
surrounded himself with an A-team of lawyers who frankly saved his bacon.
President Clinton survived that Senate impeachment trial. What do you do
for your second act after you help to save a presidency?

Well, you help save the next presidency, too. It is not that weird in
Washington that some of the A-team of lawyers who helped keep President
Clinton in office in his impeachment scandal went on after that to help
President Bush and Vice President Cheney defend them in their -- defend
themselves in their own political scandals.

Washington lawyering is sometimes partisan but not always. Sometimes
you`re just the guy who gets the call, the guy who everybody calls when the
rich and politically powerful are in really big trouble. When trouble
strikes, the people in charge, trouble has this guy on speed dial.

So, yes, now, trouble has struck again and that same lawyer who kept
Bill Clinton from getting impeached, who got the call from Vice President
Cheney, who got the call from President George W. Bush, that same guy, just
got the call again, from a governor who`s in really big trouble, and that
story is coming up.

(COMMERCIAL BREAK)

MADDOW: So when President Bill Clinton was impeached in the House in
1998, when they impeached him in the House and Senate did not convict him,
which is why he got to stay on as president. When all that was happening
to the Clinton presidency in 1998/1999, President Clinton hired a lawyer
named Emmet T. Flood to defend him.

When Vice President Dick Cheney and his chief of staff were sued by
Valerie Plame Wilson for leaking her identity and ending her career as an
undercover CIA operative, Vice President Cheney also hired for his defense
that same lawyer, Emmet T. Flood.

When George W. Bush needed a legal life preserver to help him respond
to congressional investigations and to pressure was being put on the White
House counsel`s office, the man he chose to defend him against that steady
stream of requests was same guy, Emmet T. Flood.

There`s a long nonpartisan history of politicians hiring high-end
specialist lawyers to save them when things start to go south. For much of
our nation`s recent political history, the lawyer that the high and mighty
have turned to when things seem to be headed not just south but for the
very deep south is this handsome fellow Emmet T. Flood.

And the latest politician who had to make the dreaded call, oh, God,
get me Emmet T. Flood, the latest guy having to do that is Virginia`s
beleaguered Republican governor ultrasound, Bob McDonnell. He has now
hired Emmet T. Flood to represent him in the federal and state corruptions
that center on Governor McDonnell`s acceptance of gifts and cash and
merchandise for himself and his family.

And you know, it is probably a good thing for Governor McDonnell right
now that he is improving his legal representation since the lawyers he has
had working for him are leading to news stories like this: "An attorney for
Governor Bob McDonnell on Monday vigorously defended the governor against
allegations his children had taken large quantities of food and household
supplies from the governor`s mansion to their college dorm rooms. But
hours later, Governor McDonnell`s office released documents showing the
governor on Friday repaid the state nearly $2,400 for said items that his
kids charged to the taxpayers that the lawyer said were no big deal,
$2,400 of humus, hint of lime chips, toilet paper, body wash, deodorant and
other items."

"The Roanoke Times" has the list as Gatorade, paper towels, laundry
detergent, cold cuts, microwave foods, chips and energy shakes. No idea if
it was the same hint of lime chips or different ones.

From a health food in particular, we`re told that the governor`s lot
at taxpayers` expense included a digestive system cleanse, a cherry
flavored sleep elixir and variety of vitamins. These were all charged to
the governor mansion`s Visa card.

It should be noted that when "The Washington Post" first reported in
June on Bob McDonnell buying his digestive system gastrointestinal cleanse
and making you the taxpayer pay for it, Governor McDonnell denounced that
report as false and misleading. But now, he`s quietly paying the state
back for what he took while still insisting that he was maybe right to take
it or at least insisting his lawyer said he could have it without paying.

But now, he`s going to pay for it anyway -- well, because now he has a
really fancy expensive new lawyer giving him different advice?

Governor Bob McDonnell`s term in office ends officially in January.
Smart bookmakers everywhere are taking bets on whether or not he makes it
that far.

(COMMERCIAL BREAK)

MADDOW: This is Pelican Bay State Prison. It`s located on 275 acres
on the north coast of California, about 13 miles below the Oregon border.
Pelican Bay State Prison is named for the shallow bay on the Pacific Coast
that sits just a few miles west of this super max prison facility.

Pelican Bay as a prison is laid out in a pretty unique way. The
grounds and operations of the prison are divided between two main
compounds. The sort of butterfly wing structure that you see on top there
-- see it`s two different sort of setups? Butterfly setup you see on top
houses half of Pelican Bay`s 2,800 prisoners. That`s the general
population wing where prisoners are allowed to interact with each other and
to exercise in an open yard.

The other half of the prisoners are locked up in the X-shaped secure
housing unit that you see there at the bottom. Everybody housed in that
part of the prison, everybody there is in solitary confinement locked into
11 x 7 foot cells for 22 hours a day. Prisoners held there are allowed
solitary very limited exercise in a cement yard that`s known as the dog
run. But these guys are alone.

That X-shaped secure housing unit at Pelican Bay is one of five secure
housing units in the state of California. Secure housing unit and the
acronym is SHU, so they`re called SHUs.

Most prisoners in the SHUs are in long-term isolation. At Pelican
Bay, most of the prisoners in solitary confinement have been there for at
least five years. It was from that unit at Pelican Bay that last month a
group of prisoners in solitary confinement put out a statement announcing
that they would be going on an indefinite hunger strike.

And yesterday the day of that planned hunger strike, prisoners from
Pelican Bay were among 30,000 California prisoners who refused meals at the
majority of the state`s prisons, 30,000 people. Yesterday was the first
day in what the prisoners say will be an ongoing protest against long-term
solitary confinement in that state. That was yesterday in California,
30,000 prisoners starting a coordinated hunger strike that they say will go
indefinitely.

Also, yesterday, at around the same time, a federal judge in
Washington, D.C., made a ruling on a hunger strike of a different kind -- a
hunger strike that is now going into its sixth straight month. Since
February, over 100 prisoners being held at Guantanamo have been refusing
meals in order to protest the ongoing open-ended detention.

In response to that hunger strike, the military has decided to
forcibly stop them from hunger striking. Half the prisoners on hunger
strike at Guantanamo are now being force fed by U.S. Navy doctors and
nurses at the facility. And yesterday, it was a federal district court
judge who ruled against those prisoners. The prisoners had asked the court
to intervene to stop the forced feedings.

Judge Gladys Kessler did not rule the forced feeding, itself, was
legal or illegal. Instead, she found that her court lacked any legal
jurisdiction to get involved, any legal jurisdiction at all to end the
forced feeding program at Guantanamo. She wrote, "No court, justice or
judge shall have jurisdictions to hear or consider any aspect of the
detention, transfer, treatment, trial or conditions of confinement of an
alien who has been determined to have been properly detained as an enemy
combatant."

So, in other words, federal courts are constrained by a lack of
jurisdiction to rule on whether or not these prisoners should be forced to
undergo a procedure that the judge calls a painful, humiliating and
degrading process. Degrading process, deemed degrading not only by this
judge, but also as she points out in her ruling, by the medical profession
-- specifically the AMA, the American Medical Association, the largest
group of doctors and medical students in the country.

They say that force feeding is in direct violation of the core ethical
values of the medical profession. They say doctors shouldn`t participate
in it. Essentially the largest association of doctors in the country says
that it is not possible for a doctor to act ethically as a doctor if you
are also administering forced feeding at the direction of the government.

Another letter was sent to President Obama by a group of over 150
doctors arguing that these military doctors at Guantanamo Bay are being put
into a serious conflict of interest, essentially, with these orders to
force feed the hunger strikers. They`re asking that the prisoners receive
independent medical assistance from medical professionals who do not have
to take orders.

For these medical professionals, what is happening at Guantanamo Bay
twice a day, the forced feeding of prisoners protesting their own
detention, it runs counter to ethics inherent to the medical profession.
As this hunger strike continues, that sort of pressure from the medical
profession continues to build along with it.

And while the federal court ruling yesterday could not stop the force
feeding from going forward, it very overtly acknowledged this growing worry
and criticism from the medical community.

This judge also in this very short four-page ruling also did something
very, very blunt. She put this whole issue into the lap of the one person
who she says can act to change what is happening there.

And announcing that her court essentially has no standing to rule on
this case, this federal judge closed her ruling with this. She says, "Even
though this court is obligated to dismiss the application for lack of
jurisdiction, and therefore lacks any authority to rule on the petitioner`s
request, there is an individual who does have the authority to address the
issue. The president of the United States as commander in chief has the
authority and power to directly address the issue of forced feeding of the
prisoners at Guantanamo Bay."

In other words, President Obama, the ball is now in your court.

What happens next here?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Look at the current
situation where we are force-feeding detainees who are being held on a
hunger strike. I`m willing to cut the young lady who interrupted me some
slack because it`s worth being passionate about.

Is this who we are? Is that something our Founders foresaw? Is that
the America we want to leave our children? Our sense of justice is
stronger than that.

(END VIDEO CLIP)

MADDOW: President Obama made those remarks in May, and that exact
statement from President Obama has now been quoted in a ruling from a
federal judge. The judge has stated in her ruling that President Obama may
be lamenting the fact that we are force feeding people at Guantanamo, but
President Obama, alone, not the courts, but the president, alone has the
power to end that practice if it should be ended.

Is that true?

Joining us now is Rosa Brooks. She`s a professor at Georgetown Law.
She`s a senior fellow at the New America Foundation. She`s a former
counselor to the undersecretary of defense at the Pentagon.

Professor Brooks, thanks very much for being here tonight. It`s nice
to see you, Rosa.

ROSA BROOKS, GEORGETOWN LAW: Good to see you, Rachel.

MADDOW: Judge Kessler says there is an individual who does have the
authority to address this issue, in describing President Obama. Do you
think that she is right in that?

BROOKS: Oh, absolutely. President Obama is the commander-in-chief.
It`s the executive branch that`s made a decision to resort to force feeding
of detainees at Guantanamo, and if President Obama is extremely unhappy at
that state of affairs, he can certainly change it.

MADDOW: In terms of the controversy surrounding this issue,
obviously, the judge is moved by the prisoners` pleas that this is
something that is both demeaning and cruel. Is there legal clarity on the
issue of whether or not this is the appropriate policy, whether or not this
is something doctors legally can do and this is something prisons ought to
do?

BROOKS: No, there isn`t. I mean, there`s a substantial difference of
opinion, and I`m not entirely unsympathetic to the physicians at Guantanamo
Bay who I think are in a difficult situation.

I mean, I think one perspective is, look, we have an ethical duty to
prevent these detainees from harming themselves, that they may be detained
for a long time, maybe indefinitely, maybe not. We`ll see in the future.
But death is irreversible and we have an ethical duty to keep them safe
even if that means force feeding them.

On the other hand, you know, there`s obviously a very compelling
argument to be made, an argument with which, as you say, the American
Medical Association agrees which is that if you have an adult who is not
mentally ill who says I do not -- I choose to -- I would rather starve than
live out the rest of my life, potentially in these conditions when I`ve
been cleared for release but can`t be released, don`t we have an ethical
duty to respect that individual`s wishes?

I think it`s a tough situation. I`m inclined on the side of if that`s
what they want to do, then we should respect that, myself. But I think it
is a tough one.

MADDOW: It is interesting when you hear the prisoners` advocates
explain and hear sometimes from the prisoners, themselves, explaining why
they chose to make this decision. They are tying it very explicitly to the
loss of hope, that their detention is going to be anything but indefinite.
A loss of hope that anything might change that would clear up their
futures.

Do you think that that affects both the strategic and the ethical
consideration here?

BROOKS: I think it does. I mean, I think that the argument for
keeping someone alive against their will is obviously strongest when you
can make an argument that that person is not of sound mind or body. You
know, that their untreated mental illness or something like that and things
are going to get better for them.

But these people are saying, look, I`ve been here for 11 years in some
cases. Every indication, and this is one of the things that Judge Kessler
commented on, every indication could be I could be in this little cell for
the rest of my life even though the United States says I`m not dangerous,
some cases I`m innocent, and I could be released. I`m stuck here. You
know, what a Kafkaesque situation.

To me, it seems pretty rational, frankly, that a human being in that
situation might say I would rather be dead.

MADDOW: Or take the most extreme possibility of protesting I could in
order to dramatize my plight.

BROOKS: You know, I was -- I was physically there during the
president`s speech, the speech that Judge Kessler quoted. In fact, I also
was sitting directly in front of Medea Benjamin, the heckler who he
referred to when he talked about the young lady who interrupted him and I
tried to slither down in my feet.

But I was there and I saw him and think he clearly on the one hand
he`s really wrestling with this morally, it is weighing on his conscience.
But I had the same reaction when I heard those words as Judge Kessler,
which was, wow, Mr. President, if that bothers you, you can do something
about it. You can, with the stroke of a pen, you can end that.

MADDOW: And, of course, there is the broader issue, the broader
framework in which it all fits in what was the major framework of the
speech, which is the idea of closing Guantanamo, something that the
president has been very clearly that he wants to do that. He has not been
able to pull it off because Congress has blocked him.

What we`ve got from the new initiative to try to close the prison
right now is that the president said he wanted to appoint two new senior
envoys to get the prison closed, one from the State Department, and one
from the Pentagon. The State Department got their envoy, it`s very high
profile, very capable guy who`s very experience, who`s gone down there and
been to the prison on his second day that he was in office as the new
envoy.

Pentagon hasn`t gotten around to appointing their envoy yet. Is there
-- I mean, you worked for the Pentagon. Is there resistance in terms of
the political -- relationship between the political side and the military
side on this?

BROOKS: No, I don`t think so, I think that everybody wants --
everybody in the executive branch wants Guantanamo closed. I think it is
hard to find somebody who will take this job, frankly. It is a thankless
job with minimal likelihood of success.

And I should add, to be fair to President Obama, there is one
political actor in this country who can easily change this if they feel
like. And that`s Congress. You know, the legislation that Judge Kessler
referred to that deprived federal courts of jurisdiction to adjudicate
these issues was passed in 2006 by the U.S. Congress. If Congress wants to
let the courts adjudicate those conditions, they certainly could.

And the legislation that makes it not impossible, but extraordinarily
hard for the president to release even those into the United States,
potentially, those detainees who have been found to present no danger.
That`s also Congress.

This is a travesty that is very much of our own making in this
country. And it is costing us a tremendous amount in terms of
international legitimacy, and arguably, it`s creating a lot more anti-
American sentiment than -- and a greater risk of terrorist attacks,
frankly, than if we took the risk of releasing in a monitored way, many of
these detainees.

MADDOW: Rosa Brooks, professor of law at Georgetown and a columnist
for "Foreign Policy" magazine -- Rosa, thanks very much for being here
tonight. I appreciate it.

BROOKS: Thanks, Rachel. Great to be here.

MADDOW: We`ll be right back.

(COMMERCIAL BREAK)

MADDOW: On the front page of "The New York Times" today, the front
page above the fold, this bombshell of a story was dropped today without
much warning.

The United States may leave no troops in Afghanistan. The United
States considers faster pullout from the Afghan war. "The Times" is
reporting that President Obama is now considering what they call a zero
option when it comes to the war in Afghanistan, rather than leaving some
residual force in Afghanistan, indefinitely, even after the war has
technically ended next year.

It would instead be the way we left Iraq, which is all U.S. troops
out, everybody home. That would be a really big deal if that happened.
This past December, the outgoing Defense Secretary Leon Panetta, he took a
good-bye trip before he left office, before going home to whatever it is,
his walnut orchard or whatever in California. He took a goodbye trip that
included a speech and a Q&A with a bunch of American troops who were
stationed in Kuwait.

And one master sergeant asked the secretary of defense a rather
profound question that I have had tacked up on my office wall ever since
the transcript came out. The master sergeant said, "Looking at the long-
term plan, my understanding is that the drawdown in Afghanistan is not
completely pulling out. So can we expect that five, 10 years from now our
children will still be serving that region of the world to maintain
stability?"

And the defense secretary responded by saying effectively, yes, maybe,
at the end of the longest war in American history, a war lasting more than
13 years -- yes, maybe, looking ahead, master sergeant, your kid may be
serving in that stew, too.

He told that master sergeant in Kuwait that day, quote, "We will have
an enduring presence that will continue in Afghanistan. The size of that
enduring presence will be something the president is going to be
considering."

But now, based on "The New York Times" this morning if the size of
that enduring presence is going to be zero, that would be a really big deal
and a huge scoop for "The New York Times," worthy of A-1 above the fold,
right?

But where did they get that scoop from? Is it true? The sourcing is
attributed to anonymous officials in Washington and Kabul.

Is this story being handed to "The Times" by the White House as sort
of a trial balloon? Is this the case of the Obama administration trying to
gauge the public on this big potential change in plans?

Is this scoop being handed to "The Times" by someone inside the
administration who is fighting for this so-called "zero option" against
resistance in the admiration, but they want to use the front page of "The
Times" as leverage, which is in favor of doing is this way? Is the Obama
administration not really intending to move forward with the option at all,
but maybe they`re leaking it as a possibility in order to try to scare the
Afghan government into being more flexible in negotiations?

If that is the strategy it may be worth double checking whether we can
all be sure that the idea of all U.S. troops leaving Afghanistan might
actually seem scary to the Afghan government. Everybody thought the Iraqi
government find that prospect scary, too, but when we left, surprise, they
were happy to see us go. We tried to scare them with that and they
clapped.

"The Times" says its sources here for this scoop, quote, "hold a range
of views on how quickly the U.S. should leave Afghanistan." So, maybe it
is not just one of those scenarios, it is a bunch of them mixed together.

But this is a really big deal, particularly to the hundreds of
thousands of American families who have had somebody there in these past 12
year fighting.

Until we know who`s floating this hard end of the war as a
possibility, it is hard to know how real a possibility it is.

Late tonight, the chairman of the House Armed Services Committee,
Republican Congressman Buck McKeon, came out and said he`s been assured by
senior administration officials that "The Times" is wrong and there is no
"zero option" under consideration. He said that officials have assured him
that U.S. troops will stay in Afghanistan after 2014.

Do you believe Buck McKeon and his anonymous sources or do you believe
"The New York Times" and their anonymous sources? And do you personally
believe the United States should keep troops in Afghanistan past the end of
next year? Past the year 13 of the war, and into the year 14 of the war
and beyond all that?

All of this anonymous source floating may be designed to suss out how
you feel about it, to try to gauge a public reaction. And so, this is the
time when the people who think that the only thing wrong with the
Afghanistan war is that it hasn`t been long enough yet, this is the time
for those folks to make to try to make their case. I look forward to
hearing it.

Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL."

Have a great night.


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

Copyright 2013 CQ-Roll Call, Inc. All materials herein are protected by
United States copyright law and may not be reproduced, distributed,
transmitted, displayed, published or broadcast without the prior written
permission of CQ-Roll Call. You may not alter or remove any trademark,
copyright or other notice from copies of the content.>


WATCH 'THE RACHEL MADDOW SHOW' WEEKDAYS AT 9:00 P.M. ON MSNBC.