'The Last Word with Lawrence O'Donnell' for Tuesday, December 17th, 2013

THE LAST WORD WITH LAWRENCE O`DONNELL
December 17, 2013

Guests: John Schindler, Adam Green


LAWRENCE O`DONNELL, MSNBC HOST: The Senate has figured out how to go
home for Christmas this year. Just pass a budget and go.

(BEGIN VIDEOTAPE)

SEN. HARRY REID (D-NV), MAJORITY LEADER: Christmas is one week from
Wednesday. We have a lot to do.

SEN. PATTY MURRAY (D), WASHINGTON: This deal is a compromise.

UNIDENTIFIED MALE: Your favorite do-nothing Congress is doing
something today.

UNIDENTIFIED FEMALE: The two-year Murray/Ryan budget deal.

UNIDENTIFIED FEMALE: The Senate has a vote to pass the budget.

UNIDENTIFIED MALE: The clerk will report the motion to invoke
cloture.

UNIDENTIFIED FEMALE: Voting to end debate.

UNIDENTIFIED MALE: That was 67-33.

UNIDENTIFIED MALE: By 67-33.

UNIDENTIFIED MALE: The final vote is expected tomorrow to pass the
bill and the send it to the president.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: People around here are in
too big of a hurry.

UNIDENTIFIED FEMALE: The budget deal under consideration has lost
some key Republican support.

GRAHAM: This budget is probably going to pass.

UNIDENTIFIED FEMALE: It`s expected to pass anyway.

GRAHAM: Because everybody is hell-bent to get out of town.

MURRAY: This bipartisan bill takes the first steps.

UNIDENTIFIED MALE: They`ve got to be able to do other things.

MURRAY: When we come back next year, I`m ready to go to work.

GRAHAM: People around here are in too big of a hurry.

REID: We have a lot to do. Finish it we must.

UNIDENTIFIED FEMALE: They have a long list of unfinished business.

REID: Finish it we must.

UNIDENTIFIED FEMALE: The farm bill, unemployment benefits, raising
the debt ceiling, increasing the minimum wage and immigration reform.

UNIDENTIFIED MALE: Is there any hope for more action in 2014?

REID: Christmas is one week from Wednesday.

UNIDENTIFIED MALE: Congress will close out the year with more of a
whimper than a roar.

UNIDENTIFIED MALE: Congress` least productive year in modern history.

GRAHAM: No, we`re in a big hurry around here and show you how
functional we are.

MURRAY: This deal is a compromise.

GRAHAM: Even when we`re functional, we`re dysfunctional.

(END VIDEOTAPE)

O`DONNELL: Today, a dozen Republican senators joined every Democratic
senator in voting to end debate on a budget compromise that will keep the
government opened through September 15th. This clears the way for a final
vote on the bill itself which only needs a simple majority to pass.

Today`s vote was 67-33. The 33 Republicans who voted no include Mitch
McConnell and Ted Cruz.

John McCain was one of the 12 Republicans who voted yes and he said
this after that vote.

(BEGIN VIDEO CLIP)

SEN. JOHN MCCAIN (R), ARIZONA: I understand that there are many of my
colleagues on this side of the aisle that are very unhappy with this deal
and intend to vote against it. My only response to that is, I respect
their vote but I`d like to know what we do in order to avoid another
shutdown of the government.

The American people steadfastly reject a shutdown of the government.
So, I have concerns about the budget deal. Everybody, I think, does
because of the nature of the way business is done. But to somehow vote
against it without an alternative to keep the budget -- to keep the
government from shutting down then I think lacks some intellectual
integrity.

(END VIDEO CLIP)

O`DONNELL: The budget agreement will put nearly $32 million back into
nondefense discretionary programs, that have been under sequester.

Before today`s vote, Democratic Budget Chairwoman Patty Murray offered
her assessment of this compromise.

(BEGIN VIDEO CLIP)

MURRAY: This bill isn`t exactly what I would have written on my own.
I`m pretty sure it`s not what Chairman Ryan would have written on his own.
I was very disappointed we were not able to close a single wasteful tax
loophole. I hoped we could extend hope for workers who are fighting to get
back on the job, and I was very disappointed that up are Republicans
refused to allow that to be part of this deal.

I certainly would have liked to replace more of sequestration. I know
it was difficult for many Republicans to accept any increases in the BCA
caps at all. And I know many Republicans had hoped this would be an
opportunity to make the kind of Medicare and Social Security benefit cuts.
They have advocated for in the past, but I fought hard to keep them out.

(END VIDEO CLIP)

O`DONNELL: Joining me now, Krystal Ball, co-host of MSNBC`s "THE
CYCLE", and Jared Bernstein, an MSNBC contributor and senior fellow at the
Center for Budget and Policy Priorities.

Krystal, this is one of those love John McCain days. Just because --
I mean, the guy drives you crazy and then every once in a while there`s one
of these moments. He could have just voted yes and gone his merry
Christmas way.

But he could not resist going out there and rubbing Ted Cruz`s nose in
the government shutdown, saying to them as we just heard him say, what do
we do? If we don`t do this, what do we do? Just tell me what we do to
avoid a government shutdown and he says the American public steadfastly
rejects a shutdown. He loves reminding Cruz of that.

KRYSTAL BALL, THE CYCLE: Yes. And, of course, John McCain was the
most vocal senator when Ted Cruz was pulling his government shutdown
shenanigans, and has been quite vocal. He`s the one who called him a wacko
bird as well.

So, the interesting thing here, too, is that John McCain has really
just been directly honest about what this deal is really about. I think
for both sides, what they wanted to come to the table around was finding a
way to avoid at all costs another government shutdown. Democrats don`t
want it because government shutdowns are terrible and Republicans like Paul
Ryan and John Boehner and Mitch McConnell, even though he voted against it
don`t want it because it is destruction for their party.

Now, on the other hand, they haven`t ruled out yet the possibility of
going to the wire over raising the debt ceiling, but we`ll have to I guess
worry about that down the road.

But, yes, John McCain just calls it like it is. This is about
avoiding government shutdown. Ultimately, it`s a relatively small deal.
Democrats are upset that there`s no unemployment insurance in it.
Republicans are upset because it raises fees and they -- which are really
taxes, but ultimately, we all get to avoid a government shutdown and I
think that`s good for the country.

O`DONNELL: And Jared Bernstein, John McCain sees some adjustments in
the sequester level of spending that he wanted to see.

JARED BERNSTEIN, MSNBC CONTRIBUTOR: Yes, that`s the other things that
is very important to tack on to this if you`re trying to understand where
John McCain is coming from because of the way sequestration was
constructed. Defense was going to take a $20 billion reduction in its
spending caps in 2014. That was something that John McCain and a few other
senators, some of whom, by the way, still voted no on the bill really
didn`t like.

But I agree with you, he took a principled stand.

But I also want to say -- and I think I`m echoing Krystal here, I
mean, my view is basically what these guys and gals are doing is partially
diffusing a fiscal time bomb that they themselves set.

Now, I`ll give them credit for compromise and for reducing some of the
fiscal drag on the 2014 and 2015 economy. That`s useful. But this, again,
not just a small deal but kind of bringing a tiny bit of rationality to an
irrational fiscal program that they themselves have introduced.

O`DONNELL: Chrystal, I have, you know, very little doubt that John
McCain was in one of these senators who`s in a possible Tea Party primary
fights he would have voted against it, just like all those other guys who
did. I mean, the people voting for it were the people who do not have to
run for re-election this time.

BALL: Yes, which is fine. I mean, at least the votes are there and
that`s something. Mitch McConnell and others who have Tea Party
challengers are responding to that by moving as far as they can to the
right. That`s driven a lot of the politics of this year, frankly. It
drove the previous government shutdown.

And with John McCain, I think you`re right, because when he did face a
challenge he moved very far to the right on things like immigration that he
had long stood for. So, we`ll applaud him in the moment. He`s taking a
courageous stand. He`s a principled stand. If he was up for reelection,
it might look a little different, but I`m still glad that he`s there to
support some sanity at this moment.

O`DONNELL: And McConnell would have voted for this if he wasn`t
running for re-election. They did something very smart on Republican side,
Jared, on the vote counting. They didn`t want to leave it at just 60
because each one of the Republicans who voted for it could have been blamed
as being the deciding voter who made this happen.

BALL: Right.

BERNSTEIN: Yes.

O`DONNELL: So, McConnell made sure that there was enough of them,
well over 60, so that no individual could be blamed for this and McConnell
made sure this thing passed. Most of the people who voted against it very
much wanted to see it passed.

BALL: Yes.

BERNSTEIN: Yes, I think that`s right. And for the reasons you`ve
discussed. Don`t forget that this got a bunch of Republican votes in the
House.

O`DONNELL: Yes.

BERNSTEIN: I mean, 169, I believe, Republicans voted for this in the
House and that`s been a heavier lift for anything that reeks of compromise.

So I do think that they found a patch of common ground. An
interesting question, one you posed in the introduction, is does this patch
of common ground mean that more of this kind of compromise can take place,
whether it`s unemployment insurance, all the way to immigration reform.
And on that, I guess I don`t want to be a skunk in a garden party here, but
I`m not that optimistic.

Again, this was a small patch of common ground. Just because you ran
around the block doesn`t mean you can run the marathon.

BALL: Right.

BERNSTEIN: And I think you have to -- you could already see members
going back to their trenches when you hear Paul Ryan saying, we`re going to
extract something over the debt ceiling. That sounds a lot like the
language we heard well before the spirit of compromise was upon the land.

O`DONNELL: Rush Limbaugh has an explanation for this whole thing.

BALL: Oh, perfect.

O`DONNELL: Let`s listen to Rush.

(BEGIN VIDEO CLIP)

RUSH LIMBAUGH, RADIO HOST: They are shell shocked. They are scared
to death to say anything critical of Obama the Democrats. And they will do
anything to avoid a government shutdown, including giving Obama that he
wants, what we just saw. They gave up the sequester gains. They have
financed Obamacare all because they are afraid of another government
shutdown.

(END VIDEO CLIP)

O`DONNELL: Rush doesn`t seem to know that they increased the defense
in this thing.

BALL: Right, indeed. And he also seems to have --

O`DONNELL: And without that, you never would have gotten Republican
votes.

BALL: Well, he also has no idea apparently that the budget levels
that we`re talking about are quite a lot closer to what the Republicans
have been wanting with Paul Ryan`s budget than what the president wants.
The Republicans are definitely getting the wins here because they are the
less reasonable party so when they show up at the table they extract a lot
of things.

I want to go back to what Jared was saying about whether we can be
optimistic about this meeting, whether we`re going to see more compromise
in the future on something like a grand bargain or immigration reform.

I also am quite doubtful. But I do actually think we could see
ultimately an extension of unemployment insurance like we`ve seen in the
past and to potentially an increase in the minimum wage only because they
will respond to the fact that those will be brutally bad issues for the
Republicans to have to run against in the midterm election.

So, there`s a lot of movement and momentum growing around those two
pieces so I think we could see those two pieces come together.

BERNSTEIN: Look, if it you start fact checking Rush Limbaugh, you`ll
never have time for anything else but let me just say is he wrong in an
important way on the sequester point. First of all, they didn`t kill the
sequester. They relieved less than half of the sequester cuts in this year
and considerably -- in 2014 and considerably less than that in 2015. And
here`s the thing, the sequester lasts until 2021.

So, it comes back in 2016, unless we take further action.

O`DONNELL: Jared Bernstein and Krystal Ball, thank you both for
joining me tonight.

BALL: Thanks, Lawrence.

O`DONNELL: Coming up, Edward Snowden writes a fan letter to Brazil
the day after a federal judge agrees with him about NSA data collection.

And later, another honor for Pope Francis. He`s been named person of
the year again, this time by a gay magazine. Here to accept for the pope,
LAST WORD chaplain, Father James Martin.

(COMMERCIAL BREAK)

O`DONNELL: If you`re wondering what message President Obama would be
sending to Russia about the country`s new anti-gay laws, here it is.
President Obama won`t be attending the opening ceremonies of the 2014
Winter Olympics in Russia. He`s sending Billie Jean King instead. The
White House announced today that the tennis legend will be part of a
delegation led by the former Secretary of Homeland Security Janet
Napolitano, as will gold medal winning figure skater Brian Boitano.

It is the first time in at least 20 years that the delegation does not
have any major political leaders in it.

Up next, Edward Snowden`s letter to Brazil and a federal judge`s
decision agreeing with Edward Snowden.

(COMMERCIAL BREAK)

O`DONNELL: After a federal court judge yesterday ruled that the NSA`s
mass collection of phone data is likely unconstitutional, Edward Snowden
published an open letter to the people of Brazil, offering his help to the
Brazilian senate`s investigation of the NSA`s, quote, "suspected crimes
against the Brazilian citizens."

Edward Snowden explained that he is currently unable to help and would
be an awful lot easier for him to help if he had permanent asylum in
Brazil.

Joining me now: Steve Clemons, Washington editor at large for "The
Atlantic" and MSNBC contributor.

And John Schindler, former NSA analyst and counterintelligence
officer. He`s currently a professor of national security affairs at the
Naval War College.

Steve Clemons, the judge`s opinion yesterday, which I think shocked
everyone because it basically involved a district court judge overturning a
1979 decision on which all other decisions were based about what the
expectation of privacy is for phone records as opposed to the contents of
phone calls. And he couldn`t have reached this decision without doing this
and I don`t think anyone saw that coming.

STEVE CLEMONS, THE ATLANTIC: Well, I think this judge, remember, was
appointed by George W. Bush so that`s one interesting moment in this. This
is a conservative that brought the case. And, second, the judge is saying
that times have changed and people have a different relationship with their
smartphone today than they may have had in the past.

So, the rules are changed and he`s saying not that this is
unconstitutional, but it`s probably unconstitutional, and he`s giving the
federal government six months to come back with an appeal. But it`s a
shocker because it really turns this game around and begins to look at this
question, which even President Obama has said, we have to have a debate in
this nation about the appropriate balance is between people`s -- the
nation`s security and people`s privacy and the judge bought that. So, it`s
a real interesting game changer.

O`DONNELL: John Schindler, do you see the judge`s ruling as
validating Edward Snowden`s concerns?

JOHN SCHINDLER, FORMER NSA ANALYST: Only partly. I think, you know,
this was brought about by Larry Klayman, who is a birther, who thinks our
president is a secret Muslim. Let`s get that out there.

And today, Senator Feinstein, the chair of the Senate Intelligence
Committee --

O`DONNELL: Yes. I just want to clarify, John, that Larry Klayman is
the lawyer and plaintiff in this case and he`s a well-known gadfly is one
of the most positive adjectives you can come up with. Everything you just
said about him is true.

He`s an outright nut on an awful lot of subjects.

SCHINDLER: He`s a nut. I think he has a legitimate point but he`s a
nut.

Senator Feinstein, the chair of the Senate Intelligence Committee,
today said this needs to go to the Supreme Court. And I think she`s
exactly right. That is an appropriate venue for this and I hope it gets
there quickly because I think the American public has a right to hear this
adjudicated before the highest court in the land on the issue of the Fourth
Amendment.

I`m not a lawyer, much less a national security lawyer. I`m an
intelligence officer by background. And I, too, want to see this go to the
Supreme Court as soon as possible.

O`DONNELL: I thought, Steve, the strongest element in the judge`s
decision was when he said, look, pay attention to this 1979 decision. It
was for one suspect and the examination of two days of phone records and
that`s all and from that case other judges in the 21st century have been
using it to justify this mass date unspecified harvest.

CLEMONS: I mean, I think this judge is saying, regardless of what
case came to him, that he`s seeing a problem in society of a very unhealthy
balance of massive expansion of official secrecy, no accountability, a
derelict Congress, no one basically blowing the whistle, judges who have
been part of the FISA court, completely complacent and obsequious in the
process.

And I respect Dianne Feinstein in this process, but I also respect Ron
Wyden and Mark Udall, who have been raising very, very compassionate
concerns about this issue about the privacy, and the issues that the judge
himself did. So, it`s not the judge is agreeing with Ron Klayman. The
judge read Ron Wyden`s speech, listened to Mark Udall, and other people
basically telling the president of the United States, you`ve got to get
this balance right.

O`DONNELL: In Edward Snowden`s letter to Brazil, John Schindler, one
of the lines in here, Edward Snowden he actually says to Brazil about these
NSA programs, quote, "These programs were never about terrorism. They are
about economic spying, social control and diplomatic manipulation. They
are about power."

How -- to say that these programs were never about terrorism is about
one of the wildest things Snowden has said.

SCHINDLER: Yes, it is. And it tells me a lot that the Brazilians
immediately said, no, thank you, we`re not interested.

Look, what Edward Snowden has done is glom together a lot of different
intelligence programs, Glenn Greenwald has done the same, to be fair, that
some of them are about counterterrorism and some of them are about
legitimate foreign intelligence interest of the United States. What all
countries -- literally all countries do.

And I think we need to separate this out. The collaboration together
is not helpful for the debate. There are utterly legitimate issues about
domestic surveillance here. Pushing it together with issues of foreign
intelligence is not helpful and does not illuminate the debate.

I think the American public needs to be clear. NSA is a foreign
intelligence agency. Some of its collection on metadata, whatever, has
implications for American citizens, but 90-something percent of what NSA
does is purely directed at the outside world.

That`s a different debate. Maybe one we should have? I don`t know.
Every country in the word does foreign intelligence, every single one.

O`DONNELL: Steve, Edward Snowden, whenever he speaks, he says
something grandiose and usually something provably false. This thing about
these programs were never about terrorism is provably false and ridiculous
and devalue so much the rest of his letter.

He also says in here that he briefs that this kind of data collection
represents the greatest human rights challenge of our time.

Now, you have to live in a computer to believe that. You have to
never have met people who live in a country with no right to vote, who live
under pure dictatorships. You have to never have met the women in this
world that have no right to vote, no right to an education, and you most
importantly have to have met most of the people in this world who do not
own cell phones and will never in their lifetimes will not be able to avoid
a cell phones. You have to do all of that to think that is the greatest
human rates challenge of our time.

CLEMONS: That said, Edward Snowden was a very passionate man who
encountered things that disturbed him at his core. And he took brave
action, perhaps reckless action, perhaps traitorous action. But
nonetheless, he spurred both a domestic debate and international debate
that no one has and he has put a big spotlight on what the social contract
is between the United States and its allies and the United States and its
citizens.

And that deserves a bit of -- a calm, because you haven`t done that.
I haven`t done that.

O`DONNELL: I agree.

CLEMONS: That is a remarkable step that he`s taken and I would say
from the moment when you and I first discussed these revelations, much more
of what he has said has turned out to be true and was criticized at the
time. We all thought he was grandiose at that time, too.

SCHINDLER: I`m sorry, no.

(CROSSTALK)

O`DONNELL: The important stuff is true, but he always hits these
crazy rhetorical points like the programs were not about terrorism. But
the important stuff he says was true.

Quickly, John, before we go.

SCHINDLER: Yes. Look, passion is nice, passion is good. Joseph
Stalin was passionate. Adolph Hitler was passionate. We just buried
Nelson Mandela, who showed us to enact passion in the cause of justice.

Is what Edward Snowden doing about justice or about personal agenda?
I`d really like to know.

O`DONNELL: Steve Clemons and John Schindler, this is not the last
word on this subject. We all know. Thank you both for joining me tonight.

CLEMONS: Thank you, Lawrence.

O`DONNELL: Coming up, the man who maybe is going to run on Hillary
Clinton`s left in 2016 and in the rewrite tonight, we`ll have more about
Judge Leon`s decision.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNDIENTIFIED FEMALE: Now, will you run for president in 2016?

BRIAN SCHWEITZER (D), MONTANA: Well, I would just say there`s around
100 counties in Iowa. And on my bucket list is to try to make it to all of
the counties in Iowa one day.

(END VIDEO CLIP)

O`DONNELL: There`s a bucket list for you. In spotlight tonight,
Hillary Clinton`s left, Montana`s former Democratic Governor Brian
Schweitzer told "The Weekly Standard" the question that we have is, will it
be the Hillary that leads the progressives? Or is it the Hillary that says
I`m going to win the Democratic nomination and so I can shift hard right on
day one? We can`t afford anymore hard-right. We had eight years of George
W. Bush. Now, we`ve had five years of Obama who I would argue in many
cases has been a corporatist."

David Axelrod said this about Brian Schweitzer today on "MORNING JOE".

(BEGIN VIDEO CLIP)

DAVID AXELROD, FORMER OBAMA ADVISOR: He`s anti-gun control, very
strongly on the NRA side of that issue. He has strong detractors in the
environmental community because of the nature of his support for drilling
and other aspects of the oil industry, which is part of the economy in that
part of the country. He does not have the perfect record to run an
insurgent campaign from the left.

(END VIDEO CLIP)

O`DONNELL: Joining me now, Adam Green, co-founder of the Progressive
Change Campaign Committee, and MSNBC`s Karen Finney.

Karen Finney, how much room is on Hillary Clinton`s left for a
Democratic to run?

KAREN FINNEY, MSNBC HOST: I think there is a fair amount but I think
this idea that she`s going to go hard right is a little ridiculous. I
don`t think anybody would see Hillary as a hard right. She might be a
center-left person, but I certainly think hard right is a little unfair.

O`DONNELL: Adam Green, you know, if she runs unopposed, I imagine you
would expect certainly a drift to what we might call the center.

ADAM GREEN, PROGRESSIVE CHANGE CAMPAIGN COMMITTEE: It`s possible.

O`DONNELL: I mean, unopposed in the Democratic primaries.

GREEN: Yes. I think Brian Schweitzer was clearly her on notice that
she will have to pick a side between the two competing factions of the
party, the corporate wing, and the Elizabeth wing of the Democratic Party.

The corporate wing includes people like Bill Clinton`s former chief of
staff, Erskine Bowles, who led the commission that advocated cutting Social
Security benefits. Elizabeth Warren wing has Elizabeth Warren standing
with Tom Harkin from the first presidential state of Iowa and Sherrod Brown
from the presidential swing state of Ohio, as well as Mark Begich from the
red state of Alaska, saying let`s expand Social Security benefits, not cut
them. Same is true of Wall Street. We will have the Clinton gang
advocated deregulation. There was (INAUDIBLE) months more while she
perform accountability.

So, you know, my basic thought is, if Hillary Clinton firmly says that
she supports Elizabeth Warren`s basic positions on these core economic
populism issues, there`s very little room to her left. There`s little
option in the room for a competitive primary challenge. But if her
positions are unknown or she takes the wrong position on those issues, some
insurgent could occupy that political space.

LAWRENCE O`DONNELL, MSNBC ANCHOR: And Karen, there is the notion that
you would be doing Hillary Clinton a favor by running against her. Let`s
listen to what else David Axelrod said about what shapes Hillary as a
candidate.

(BEGIN VIDEO CLIP)

DAVID AXELROD, MSNBC/NBC NEWS POLITICAL ANALYST: In 2007, she wasn`t
a very good candidate. She was the front-runner. She was kind of a
battleship. I thought she got bad advice. In 2008 I thought she was a
great candidate after Obama rocked her in the first caucuses and it became
a race. She got very close to the ground, spoke to the economic concerns
of every day Americans.

And so, the question is, did she learn something from that last
experience? And this job from Schweitzer, I don`t think he represents a
real threat to her. It does create an opportunity to reflect on that
lesson.

(END VIDEO CLIP)

O`DONNELL: And Karen Finney, Hillary isn`t the only candidate who
gets better in competition.

KAREN FINNEY, MSNBC HOST, DISRUPT: Well, that`s exactly right. I
mean, both candidates got much better in competition.

Look, the fact that Hillary Clinton lost the argument of being an
agent of change, as a woman who had been in agent of change most of her
life, having work for her I can say this, it was an abomination. I mean,
she t bad advice in the first part of her campaign. I think that is -- we
all accept that. And I think Axelrod is correct that she got better as a
candidate.

But I think it`s a little bit unfair for Schweitzer and others to
assume make that assumptions that she assumes that it is a foregone
conclusion. I know that`s how, you know, they positioned her at the
beginning of 2007. But I don`t think that`s the attitude that she will
take if she decides, I should say, to run in 2016. And I think Schweitzer
here, let`s be honest, I mean, if you`re a guy who is going to Iowa in two
days and 70 percent of the people in Iowa don`t know who you are, you
attack Hillary. I mean, come on. I mean, that`s a good political
strategy. But I don`t know that that is necessarily a policy argument.

O`DONNELL: Adam, is there a candidate out there that progressives
would be more excited about than Hillary Clinton? Elizabeth Warren has
said no, hasn`t she?

GREEN: There`s a number of people saying no and then running. I
think there is a number of insurgence candidates that could run and no one
expected Howard Dean in the past, nobody expected Barack Obama in the past,
so it is possible.

O`DONNELL: I expected Barack Obama. As soon as I saw that first fund
raiser report come in and he has much money as Hillary, I just thought this
guy is on his way.

GREEN: Well, you are exceptional.

Listen, I never once said I thought Hillary was going to win. As soon
as I saw that money and the polling indicated he had plenty of to grow.

Adam Green and Karen Finney, thank you both for joining me tonight.

GREEN: Thanks.

O`DONNELL: Coming up in the rewrite, James Madison versus the NSA.

(COMMERCIAL BREAK)

O`DONNELL: Here`s a tweet that I read the other day that I love.

Doug (INAUDIBLE) tweeted, I profoundly disagree with Lawrence
politically but admire his efforts to provide something as simple as a desk
to students in Africa. Kids in need of desk know no political boundaries.
I`m sure if I learned about a program to provide desks to kids in African
schools where they have never seen desks that I would want to contribute to
that program even if I learned about on the political talk show that I
disagree with.

Casey (INAUDIBLE), fourth grade in McKinney, Texas tweeted, our class
just bought a student in Malawi a desk for school. You can, too.

It is so great to see how kids would sit at desks all day themselves
react to the discovery that kids in African schools don`t have desks and
that they need desks. Kids always want to contribute.

Jesmon Alama (ph) wrote on Facebook, just wrote out a check to U.S.
fund for UNICEF. This is great cause.

Betty Sanders wrote on Facebook, what is even better, local tradesmen
make these desks so the local economy is lifted as well.

Terry Lee saw me discussing the KIND fund today on Alex Wagner`s show
and tweeted, very inspiring story, $177 a year pays for one girl`s
education. I`m donating to the K.I.N.D. fund.

Terry contributed to the girls` tuition program that we have included
as a part of K.I.N.D. fund since girls in Africa face many more challenges
than boys do in trying to stay in school.

Ableen (ph) tweeted, Lawrence a desk and a year`s tuition. I recently
became an M.D. at the age of 58. In the `60s, southern girls were
discouraged. Hold onto your dreams.

On Facebook, John Boso (ph) wrote, I tear up every time I see images
of the children sitting on the floor in classrooms. The K.I.N.D. strategy
is smart providing jobs and education opportunity. Wish there were more
like it. Glad I was able to endow two desks in honor of family members
this year.

Many Jane (INAUDIBLE) posted on Facebook, Lawrence, I called and
donated. God bless this wonderful cause.

You can call. You can do it by phone. You can call 1-800 for UNICEF
to donate or you can go to our Web site, lastworddesks.MSNBC.com.

And Last Word`s favorite Joy Reid tweeted, just bought our K.I.N.D.
desks, one on behalf of each Reid.

Joy Reid has made buying K.I.N.D.`s desks as an annual event in her
family.

And finally, Danny (INAUDIBLE) wrote, Lawrence, you are the Steve
Austin of Malawi with a $6 million bionic heart. Wish I did a bionic
heart. Buying a desk has become my favorite holiday tradition.

Danny is celebrating the fact that we recently crossed the $6 million
mark and what is now our four year campaign of raising money for the
K.I.N.D. fund. Tonight, the total raised stands at $6,209,745. Your
kindness is providing desks for hundreds and thousands of Malawi students
and allowing thousands of girls to continue their education.

(COMMERCIAL BREAK)

O`DONNELL: In the rewrite tonight, James Madison versus the NSA.
Yesterday, federal court judge Richard Leon wrote a decision finding that
the National Security Agency`s massive collection of phone records is an
unconstitutional invasion of privacy which. The judge was in effect
rewriting a 1979 Supreme Court decision which held that it was not an
invasion of privacy for the government to examine phone records maintained
by telephone companies without a warrant.

The 1979 ruling held that we had a reasonable expectation of privacy
for the content of our telephone calls but that we had no reasonable
expectation of privacy when it came to the records of our phone calls that
are maintained by telephone companies for billing purposes.

Other federal judges have relied on that 1979 case, Smith versus
Maryland, in finding the NSA data collection programs are, indeed,
constitutional. Overruling the smith case is the necessary linchpin of
Judge Leon`s decision and he does it by asking and answering this question.

When do present day circumstances, the evolutions in the government`s
surveillance capabilities, citizens` phone habits and the relationship
between the NSA and telecom become so thoroughly unlike those considered by
the Supreme Court 34 years ago that a precedent like Smith simply does not
apply? The answer unfortunately for the government is now.

So, there is Judge Leon saying, 34-year-old constitutional thinking is
now outdated. But then Judge Leon relies on 226-year-old constitutional
thinking for the most dramatic flourish in his opinion.

Indeed, Judge Leon writes, I have little doubt that the author of our
constitution, James Madison who cautioned us to beware the abridgement of
freedom of the people by gradual and silent encroachments by those in power
would be aghast.

That line is there as nothing more than a rhetorical flourish, an
attention getter for the media and it worked. Everyone has been quoting
that line. But that line has no legal meaning or import. It`s something
judges do all the time to try to align their decision with the great minds
of the founding fathers.

There is no more abused judicial advice to invoke one of the founding
fathers and assign a judicial opinion to him. And politicians do it all
the time, too, telling you that the founding fathers would be aghast at
this or that.

Let`s just get something straight about the founding fathers. We have
no idea how they would react to the modern world. Judge Leon`s opinion is
a well-written, well-reasoned opinion that might prevail on appeal and it
might not.

But we can only hope that the appeals court judges considering this
case will stick with the facts of the case and the applicable law and the
constitution and spare us the mind reading of men who have been dead for a
couple of hundred years.

Judge Leon would have us believe that James Madison would be aghast at
NSA data collection. James Madison would be aghast at the existence of the
telephone. He would be aghast at air travel, not to mention the internal
combustion engine and birth control pills. We can only wish that James
Madison had been more aghast at the outrages against the principles of the
constitution that he did nothing to correct, things far more insidious and
evil than anything the NSA could dream up.

James Madison was president of the first country in the world to hold
this truth to be self-evidence that all men are created equal, but James
Madison was not aghast at slavery. James Madison was not aghast at denying
women the right to vote. But that same James Madison would be aghast at
NSA data collection.

When James Madison wrote the constitution, he was a 36-year-old
Virginia slave owner. He seemed to be, at times, somewhat troubled by
slavery but that didn`t prevent him from profiting from it. It also didn`t
prevent him from making sure that slaves would be counted in the census so
that the southern slave owners like him would be overrepresented in the
House of Representatives because they were allowed to count their slaves in
the census even though the slaves had no rights of citizenship. It was
Madison himself who made sure that slaves were counted in the constitution
as three-fifths of a human being.

In his eight years as president, James Madison didn`t lift a finger to
stop slavery. After his presidency, Madison wrote a letter to the Marquise
De Lafayette at saying quote "the two races cannot co-exist both being free
and equal, but great (INAUDIBLE) therefore is some external asylum for the
colored race.

James Madison became a supporter of a group whose goal was to free
slaves and transport them to Africa or to the American west. In another
letter, Madison wrote that, quote, "the physical peculiarities of those
held in bondage," end quote, would always prevent integration.

So, we do know what James Madison would be aghast. And we do know
that James Madison would be aghast at interracial marriage. We do know
that James Madison would be a aghast at an integrated cabinet room in the
White House, first with African-American members of the cabinet and now
with an African-American president presiding over that cabinet, a president
elected by a national coalition of voters that included African-Americans
and women, people who James Madison could never imagine even having the
right to vote.

But we have absolutely no way of knowing if James Madison would be
aghast at the tools that that president authorizes the NSA to use to, among
other things, protect the court from terrorist attack by haters of America
who believe they have a religious imperative to kill as many noncombatant
American citizens as possible, people who have committed no greater crime
against those terrorists than going to work in the world trade center on
September 11th.

We have no idea whether James Madison would be more aghast at Al-Qaeda
than he would at the NSA. And Judge Leon doesn`t know that either. What
we do know is that James Madison would be aghast at the final judgment on
Judge Leon`s opinion being rendered by a United States Supreme Court that
includes three women and a black man.

(COMMERCIAL BREAK)

O`DONNELL: The Pope is named person of the year again and the Last
Word`s priest of the year father James Martin will join me next.

(COMMERCIAL BREAK)

O`DONNELL: Just in time for 77th birthday today, Pope Francis has
been named person of the year for a second time in less than a week. Last
week, of course, it was "Time" magazine who bestowed the honor. And today
oldest gay right magazine in the United States, "The Advocate" named the
Pope, the person of the year.

While 2013 will be remembered for the work of hundreds in advancing
marriage equality, it will also be remembered for the example of one man in
the same way that President Obama transformed politics with his evolution
of LGBT civil rights. A change from the Pope could have a lasting effect
on religion. The online magazine points to this statement from the Pope in
July as a sign of shifting thought in the Catholic Church which has 1.2
billion members worldwide.

(BEGIN VIDEO CLIP)

POPE FRANCIS, CATHOLIC HEAD (through text): Not good. That is that
bad thing. If a person is gay and seeks God and has good will, who am I to
judge him?

(END VIDEO CLIP)

O`DONNELL: The Pope tweeted today, the love of God is not generic.
God looks with love upon every man and woman calling them by name. Pope
Francis who has recently being called a Marxist by conservative critics
like Rush Limbaugh for his focus on income equality. He celebrated his
birthday today with a group of homeless men who joined him for mass and
breakfast.

Joining me now, the chaplain of the "Last Word," "Last Word`s"
official chaplain father James Martin.

And you have a new book out here, "a big heart open to God." It`s on
the teleprompter. I should read it there instead of on the book. "A big
heart open to God, a conversation with Pope Francis."

And you know what? We are going to do nice -- this is going to be a
book promo segment, just a book right here the whole time. Just in time
for Christmas. Let`s see. How much? $17.99.

JAMES MARTIN, CHAPLAIN: It`s a steal.

O`DONNELL: Yes, you can get it at Amazon, it would be cheaper.

So, the really, interesting development with this cardinal Raymond
Burk who was on the congregation of bishops, the Pope has removed him and
we have something about what cardinal Burk said about the Pope wanting to
reemphasize and take it away from the things that the church has been
talking about. Let`s listen what Cardinal Raymond Burk said.

(BEGIN VIDEO CLIP)

RAYMOND BURK, CARDINAL: I`m not exactly sure why he mentioned the one
gets the impression or it`s interpreted in the media that he thinks were
talking too much about abortion, too much about the integrity of marriage
as between one man and one woman but we can never talk enough about that.

(END VIDEO CLIP)

O`DONNELL: I don`t know, I think we can talk enough about that.

MARTIN: Well, and that`s about as strong as you`re going to get from
a cardinal disagreeing with a Pope.

O`DONNELL: Yes.

MARTIN: It`s a very gentle disagreement. But you know, in our
interview in this "big heart open to God," the Pope says that we have been
focused on certain issues and that is one of the issues. That is not to
say he doesn`t think it is important. But there are other issues that also
need to come to floor. He`s very clear about that.

O`DONNELL: And where do you see -- how much more of this kind of bump
are we going to see in the road for the Pope where there are these public
disagreements with more conservative cardinals?

MARTIN: Well, that`s a very good question. I wonder if more
cardinals will be -- if they do disagree with him will be emboldened to,
you know, make their disagreement known. I think it`s healthy for the
church. I don`t think there`s anything wrong with it. But the Pope is
also very strong on what he wants to do with the church.

O`DONNELL: And is this being taken in the church as, hey, that`s a
firing. This is just somebody who the Pope moved out of that position
because he disagreed with him and he didn`t want to hear more from him?

MARTIN: Well, certainly, in the case should anyone`s new blood. He
appointed Cardinal (INAUDIBLE) who is the archbishop of Washington into the
position. And so, he definitely wants someone who thinks a little
differently, I would say, than the Cardinal Burk.

O`DONNELL: Are you hearing back here any of the Pope`s personal
reaction to what he`s getting from the reaction in the world?

MARTIN: Yes. He said in this interview, in the big heart, her says,
you know, I`m getting criticized. But, you know, the sort of response that
he has is, you know, that goes with (INAUDIBLE).

O`DONNELL: He`s getting a huge -- the advocate picks the Pope as the
person of the year and that`s inconceivable. I mean, there`s an amazing
kind of positive reaction to him from people who have never had a positive
reaction to a Pope.

MARTIN: -- which is fantastic. I mean, he`s drawing people to the
church. More importantly, he`s drawing people to God. So, I think it is
fantastic. And if the advocate puts him on the cover and "Time" magazine,
if that draws more people to him and to God, great.

O`DONNELL: Now, our biggest fan is watching tonight. Can we get a
two shot of father Martin and me? Because I know Eleanor is watching.
Father Martin`s mother, who I just learned, a big fan of the show. She
reviews all of your performances.

Eleanor, I think he did great tonight. No, I really do. But you tell
him the truth. You`ve seen more of his work than I have. The book,
another book promo, "a big heart open to God."

Eleanor, Merry Christmas. Father Martin, thank you very much for
joining us once again.

MARTIN: my pleasure.

O`DONNELL: And the Chris Hayes` show is up next.

END

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