updated 7/25/2014 9:35:04 AM ET 2014-07-25T13:35:04

ALL IN with CHRIS HAYES
July 24, 2014

Guest: Mustafa Barghouti, McKay Coppins, Rob Astorino

(BEGIN VIDEOTAPE)

CHRIS HAYES, MSNBC HOST (voice-over): Tonight, we are ALL IN.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: We have not made
decisions when it comes to airline safety based on not just politics, but
even our strong alliance with Israel. We have to just look at the facts.

HAYES: FAA ends the ban on flights to Tel Aviv, but the domestic
politics won`t stop.

SEN. TED CRUZ (R), TEXAS: It was politics in an effort to strong arm
the nation of Israel.

HAYES: Tonight, Ted Cruz doubles down on his allegations of a secret
anti-Israel plot and we`ll explain why.

Then, how we kill. Another botched execution and a federal judge
asking, why not just use firing squad?

Plus, a Republican gubernatorial candidate throws a bombshell
accusation at Chris Christie.

Amidst this week`s Obamacare chaos --

JON STEWART, COMEDIAN: Obamacare is made of people! Ahh!

HAYES: -- we`ve got a Supreme Court shocker that everyone else
missed.

ALL IN starts right now.

(END VIDEOTAPE)

HAYES: Good evening, from New York. I`m Chris Hayes.

Tensions are enormously high in the West Bank at this moment, as the
Israeli/Palestinian conflict seems headed toward an even greater
escalation. These scenes you are seeing are thousands of Palestinians
marching in what`s being described by Israeli radio as the largest such
protest in a decade. They started in Ramallah in the West Bank which falls
under the control of the Palestinian Authority and marched towards
Jerusalem which is under Israeli control.

Until now, the Palestinian Authority has largely suppressed street
protests like what you`re seeing. Two protesters were already killed
today. The crowds have marched on all the way to the checkpoint between
the West Bank and Jerusalem, a checkpoint heavily manned by Israeli Defense
Forces and right now there are reports of gunfire and 10,000 protesters
clashing with Israeli Defense Forces.

Joining me now by phone from Ramallah, West Bank, is Dr. Mustafa
Barghouti, one of the founders of the Palestinian National Initiative
Party.

And, Dr. Barghouti, can you tell me what`s happening there this
evening?

DR. MUSTAFA BARGHOUTI, PALESTINIAN NATIONAL INITIATIVE PARTY (via
telephone): Well, we had a peaceful march, about 20,000, or maybe 25,000
people participated in it. We marched peacefully to protest against the
assassination and massacre in Gaza which has taken 800 -- the lives of 800
people already. And we marched for freedom.

It was a peaceful march, and we were encountered by Israeli army and
military which started shooting high-velocity bullets at people.

We have up until this moment 260 injuries. Six of them are very
seriously injured. One died, unfortunately. One was killed by the Israeli
army. And there are several people who lost their eye. Many have bullets
in their legs and their chest and their abdomens.

I`ve just been to the hospital to see the injured people, and what I
can tell you is that there is no justification whatsoever for this Israeli
army violence against the peaceful march. But the whole West Bank is
boiling, and the main reason is what`s happenings in Gaza and the fact that
Israel is blocking us from reaching Jerusalem in one of what is considered
the holiest night in Ramadan and in the year.

HAYES: Dr. Barghouti, you`ve long been a very outspoken proponent of
nonviolent resistance to occupation. Are you confident that this can
remain nonviolent given just what you just said? That the West Bank is
boiling, tensions are incredibly high, we`re seeing pictures of fireworks
and fires, et cetera.

Do you worry about this spiraling into something very violent and very
deadly for both sides?

BARGHOUTI: Of course, I worry. But the main reason for this
escalation is the fact that we are talking about 800 people massacred in
Gaza, mostly children and women. And 5,300 injured, the whole of 90
percent of children, women, civilians.

You know, I`ve advocated nonviolence all my life, and each time I meet
friends from the West, they will tell me we would like to see you march
with thousands of people. Your demonstrations are not that big.

Today that dream happened. It was like Martin Luther King`s march, or
Gandhi march. And we had more than 25,000 people marching. Women, men,
elderly people, even some children, and it was so peaceful.

Then we were encountered by this terrible violence by the Israeli
army. I think the Israeli government is losing its mind completely because
tomorrow, on Friday, you will see the whole West Bank demonstrating. It is
like a full uprising now.

HAYES: Now --

BARGHOUTI: And that can be stopped only if this massacre in Gaza is
stopped.

HAYES: You`re using the English word, "uprising." The word
Palestinians has used for that is intifada. And there`s been much talk for
a long time about the possibility of another intifada.

Are we seeing the beginning of a third intifada tonight?

BARGHOUTI: Of course, it has started, but when you see intifada,
people think of military action. That was the case, unfortunately, in the
second intifada. I`m talking about something similar to the first intifada
which was totally popular, mostly nonviolent. I hope we can keep it in
such a manner, because we don`t have what to defend ourselves with and we
believe that a popular nonviolent approach would be more effective.

Of course, what complicates the situation is what`s happening in Gaza
and the massacres that are taking place there. Today the Israeli army, you
know, 44 percent of that small little area which is called Gaza, that is
only 140 square miles, with 1.8 million people in it, 44 percent has been
announced by the Israeli army as non-safe -- people who were forced out of
their homes by shelling the homes.

Now, the people are stuck in a very small area and are going to
shelters which are UNRWA schools, and today, one of the UNRWA schools was
hit by the Israeli army and they killed people in it and injured 160 people
in one hit.

So, there`s no place that is safe today in Gaza, and that makes people
very angry and makes people boil with anger.

HAYES: Dr. Mustafa Barghouti, one of the founders of Palestinian
National Initiative Party, on the phone from Ramallah in the West Bank,
amidst large street demonstrations at this moment -- thank you very much.

Two things I should say about what Dr. Barghouti said. The Israeli
government, of course, contends they`re takes all possible precautions to
avoid civilian casualties, extraordinary precaution if you listen to the
Israeli Defense Forces.

I should also say I think he said that the majority of the casualties,
the dead in Gaza are women and children. The majority are not women and
children. Women and children constitute a large number. By some figures,
the majorities are civilians, however, there`s contestation over the men
who died there, whether they`re militants or civilians.

Of course, the protests today come at the end of another bloody day in
Gaza as Dr. Barghouti alluded to, which saw the Palestinian death toll rise
well past 700. Throughout the conflict, Israel has said it`s been trying
to avoid civilian casualties by warning Palestinians to evacuate before
targeting their neighborhoods. That`s exactly what the Israeli military
said it did in its northern city of Beit Hannon, warning humanitarian
agencies to evacuate earlier this week ahead of an advance on Hamas targets
in a densely populated area.

The United Nations has a different version of the events. And as a
U.N.-run school sheltering hundreds of displaced Gazans in Beit Hannon was
finally starting to evacuate today, the school took a direct hit. At least
16 people were killed.

(BEGIN VIDEO CLIP)

REPORTER: We watched the first casualties arrive at the local
hospital, child after bloody child.

This boy reeling in shock as doctors lost the battle to save a member
of his family.

(END VIDEO CLIP)

HAYES: Israeli military says it was not targeting the school
building. They do acknowledge they were firing mortars in the area.
Israel also suggests it could have been a Hamas rocket gone astray that
struck the school.

While the U.N. says it can`t definitively say who was responsible,
they don`t agree on what exactly happened in the run-up to the strike. A
spokesman for the Israeli military told reporters it gave advanced warning
of the operations in Beit Hannon, appealing to the U.N. and the Red Cross
on Monday to evacuate the school.

The United Nations Relief and Works Agency, the group that runs the
school and frankly much of civil society inside Gaza says the Israeli
military actually stood in the way of attempts to evacuate. A spokesman
for the agency tweeted, "Over the course of the day, UNRWA tried to
coordinate with the Israeli army a window for civilians to leave and it was
never granted."

Witnesses told "The New York Times" that people sheltering at the
school had gathered in the courtyard waiting to get out when explosives
started to rain down. United Nations says at least 72 of its facilities in
Gaza including offices, schools, and hospitals have been damaged in the
fighting and this is the third time a school sheltering refugees has come
under attack.

The brutal irony is these schools are among the only places the people
of Gaza can go for safety. Over 170,000 of them staying in improvised
school shelters according to the U.N. agency that runs them.

Israel has noted the fact that the same agency has found Hamas rockets
in two of its abandoned schools just in the past week and accuses Hamas of
using facilities to store munitions.

Relations between the United Nations and Israel have long been fraught
but they seemed to have hit a new low in light of today`s attack. In
yesterday`s vote by the U.N. Human Rights Council to open a war crimes
investigation into Israel`s activities in Gaza, with the United States
providing the only dissenting vote.

The reaction to the U.N. vote from Israeli justice minister Tzipi
Livni, a relative moderate, just about sums it all up, "I have two words
for you: get lost."

Standing beside Secretary of State John Kerry in Cairo today, U.N.
secretary general had strong words for both sides.

(BEGIN VIDEO CLIP)

BAN KI-MOON, U.N. SECRETARY GENERAL: It`s morally wrong to kill your
own people. Whole world has been watching, is watching with great concern.
You must stop fighting.

(END VIDEO CLIP)

AYMAN MOHYELDIN, NBC NEWS FOREIGN CORRESPONDENT: Well, Chris, over
the course of the past several week tensions have been building up
obviously following the killing of three Israeli Jewish teenagers, followed
by the killing of a Palestinian teenager.

In addition to what`s happening here in Gaza, there has been a growing
anger among the Palestinian population which endures so much under Israeli
population in the West Bank. All of these tensions came to a boil as a
result of what is happening in Gaza and lack of cease-fire and lack of
outrage in the international community that there isn`t enough after of an
effort to try and stop the bloodletting that is taking place in Gaza.

Today, that protest obviously grew in number, grew in strength. And
as we saw, it led to clashes with the Israeli military that ultimately led
to fatalities.

The concern, I think, for both Israeli officials and the Palestinian
Authority is that this could spiral into more violence on Friday. It is a
holy day. Thousands of people attend Friday prayers in east Jerusalem.
So, you can expect it to be another flashpoint of confrontation between the
Israeli military, which puts a lot of restrictions on the mobility of
Palestinians into the holy sites of east Jerusalem and the Palestinians who
have been angered by what is happening here on the ground in Gaza and
elsewhere, Chris.

HAYES: People are using the phrase "at the margins," no one is
officially calling it this, I should be clear, a third intifada. Explain
the significance of that.

MOHYELDIN: Well, if in fact there is a third uprising, it would have
a tremendous significance because of a few reasons. One, the last
Palestinian uprising took place in about 2001. It lasted for several
years. It was a very violent period that really affected both the Israeli
political landscape as well as the Palestinian political landscape.

But more, I think, of a concern for humanitarian reasons would be that
a violent Palestinian uprising, a confrontational one, would certainly
bring about more loss of life, more strict Israeli measures on the West
Bank, as we`ve seen in the past. There is always a disproportionate number
of Palestinians killed as a result of the Israeli measures taken in the
West Bank.

So I think there is the concern that a third Palestinian uprising
could bring about the kind of violence we saw in 2001 and in the late `80s
when the first Palestinian uprising broke.

But I think the underlying concern here among many international
observers is that this status quo has to change in this part of the world,
the Israeli/Palestinian conflict. A lot of political analysts and others
are saying it is time for a new paradigm shift in trying to solve this
problem. That the way this peace process has been unfolding for the past
20 years is not producing the desired results for either state. For the
Israeli state, it`s not getting their people or the Palestinian people,
they`re not getting their rights for self-determination.

HAYES: What now have we learned about the latest in Gaza,
particularly the -- what appears to be artillery shelling of a U.N.-run
school that was serving as a shelter?

MOHYELDIN: Well, we`ve heard from U.N. officials who have not pointed
the finger directly at the Israelis, but have hinted that it is the
Israelis for a few reasons. One, there was intense fighting taking place
there. The style and the type of the shelling was very consistent with
what they believe to be Israeli shelling of the area.

And in addition to that, they`ve also blamed Israel because of the
fact that all the U.N. facilities in Gaza, their GPS coordinates, had
already been given to the Israeli military so there should not be shelling
taking place around any U.N. schools or shelters. Now, the Israeli
military has countered that by denying responsibility but not claiming
responsibility. They also hinted that it may be Hamas` fault for firing
rockets from the vicinity of the school and that they were simply returning
fire.

So, a lot of questions, but in the eyes of the United Nations, on the
ground, and in the eyes of the Palestinians that we`ve been speaking to at
the U.N. facility and elsewhere, they belief that it was the Israeli shells
that landed in the vicinity of the school that killed those 15 Palestinians
including women and children, Chris.

HAYES: NBC News foreign correspondent Ayman Mohyeldin, thank you.

Republican Senator Ted Cruz is vowing to block confirmations of key
state department nominees to keep the FAA, blocked flights flying into
Israel this week. You heard that right. That story is ahead.

(COMMERCIAL BREAK)

HAYES: Here`s something to think about. If we`re going to continue
to use the death penalty as the ultimate punishment in this country, should
we go back to the firing squad? I`ll talk about that, ahead.

(COMMERCIAL BREAK)

HAYES: The FAA decided late last night to end its ban of U.S. flights
in and out of Tel Aviv`s Ben-Gurion Airport, a move welcomed by the Israeli
government, which have insisted on the airport`s safety.

An occasion for a victory lap by Ted Cruz who has intimated based on
no evidence whatsoever that the White House was politicizing the FAA, using
it as a form of leverage over the Israeli government.

(BEGIN VIDEO CLIP)

CRUZ: And this decision by the FAA raises serious questions. Was
this a political decision? Was this driven by the White House? Was it
driven by the State Department?

If it was based on airline safety, as they said, why did they single
out Israel?

(END VIDEO CLIP)

HAYES: The FAA put out a statement saying they made the decision
after a careful review of the security situation at the airport in
cooperation with U.S. officials.

Here`s how President Obama described the process.

(BEGIN VIDEO CLIP)

OBAMA: We have not made decisions when it comes to airline safety
based on not just politics but even our strong alliance with Israel. We
have to just look at the facts.

The initial ban that was imposed by the FAA was based on Israel
needing to show us that, in fact, it was safe for commercial airlines to
fly in. They worked through a checklist of concerns and mitigation
measures that needed to be taken.

Having completed those and convinced the FAA, we move forward. In
light of some scary moments a couple of days ago, the FAA took some prudent
action, but also engaged with Israel, and Israel was able to answer those
questions.

(END VIDEO CLIP)

HAYES: Despite FAA`s reversal, Senator Cruz is continuing to cast
dispersions on the administration`s motives, doubling down on his vow to
block confirmations of key State Department nominees today. If it seems
like that makes Ted Cruz look crazy, it`s crazy like a fox.

Here to talk about what his motives might be, McKay Coppins, senior
writer for "BuzzFeed".

What is Ted Cruz up to?

MCKAY COPPINS, BUZZFEED: Well, you have to understand the politics
and kind of the shadow primary that`s been going on in the Republican Party
for the last year or so. Ted Cruz has widely been seen along with Rand
Paul as the primary contender for the right-wing base in the Republican
Party. But --

HAYES: Ted Cruz and Rand Paul.

COPPINS: Rand Paul. They were kind of the main competitors for the
Tea Party, right?

Where Ted Cruz has tried to distinguish himself from Rand Paul over
the past few months is on foreign policy and national security, right?

HAYES: And there`s a specific weakness Rand Paul has on Israel.

COPPINS: On Israel, right.

So, Rand Paul has actually for months, you know -- actually basically
his whole career -- been the pariah within the Republican Party when it
comes to Israel saying, you know, too much of the Republican foreign policy
has revolved around Israel. He wants to cut off all foreign aid.

And he`s -- and Rand Paul has tried recently to get closer to Israel,
but Ted Cruz is being smart here. He`s very strategically smart here by
saying, you know, there`s a -- the thinking is there`s a lot of money in
the Republican base -- or in the Republican establishment for Israel hawks,
right?

HAYES: Right.

COPPINS: So, what he`s done is emerge as the most hawkish pro-Israel
Republican over the last few days.

HAYES: This is policy entrepreneurship or political entrepreneurship.
He`s seeing an opportunity in the market that`s untaken which is
demagoguing on the FAA and he thinks that is going to distinguish him as
he`s the kind of guy that stands up for Israel and help him with a certain
part of the base, both -- not just donors but voters as well.

COPPINS: Absolutely, yes.

HAYES: Yes.

COPPINS: I mean, you have to remember, a lot of evangelical
Christians, conservative evangelicals are very pro-Israel. So, this just -
- it isn`t just a play for Sheldon Adelson, and although that`s certainly
part of it. It`s his money. But there`s a lot of socially conservative
evangelical Republican voters who care a lot about this issue.

And if they can see Ted Cruz coming out on FOX News and saying, you
know, I am 100 percent behind Israel, the FAA needs to think about this
decision, this is a political conspiracy. When they see that happening, a
lot of conservative voters are going to say, hey, this Cruz guy is better
than I thought.

HAYES: In fact, they just had the Christians united for Israel
events, which is an organization of evangelical Christians, that are very,
very pro-Israel. This is an image, we have this, of Rand Paul praying with
them. This is -- there he is. He`s praying with the folks.

And he realizes that he`s got weakness here. I mean, he`s done a
bunch of things recently to try to get right on this issue.

COPPINS: He`s actually made a big offensive on this issue, but Ted
Cruz is so far ahead of him because several months ago, Ted Cruz came out
and said, you know, Rand and I differ on foreign policy. He tried to make
it sound very polite but it was a shot, and he basically said, you know,
I`m an internationalist, I`m a neoconservative, I`m a Reagan Republican
when it comes to foreign policy, which made Rand Paul and his camp very
angry and they responded angrily.

And ever since then, Rand Paul has tried to catch up but he`s never
quite caught up. You can see that today that Rand, you know, going to
(INAUDIBLE) and doing what he can, but you see --

HAYES: He doesn`t have -- he does not have the instinct the way Ted
Cruz does.

COPPINS: Right, totally.

HAYES: McKay Coppins from "BuzzFeed" -- thanks for explaining that.

COPPINS: Thank you.

HAYES: All right. What`s going on between Chris Christie and the
Republican candidate for governor of New York state right now can pretty
much be summed up like this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Oh, no, you didn`t. You`re trying to call me
out? Oh, well, I believed it (ph).

(END VIDEO CLIP)

HAYES: I`ll explain, ahead.

(COMMERCIAL BREAK)

HAYES: It is all-out political war between the head of the Republican
Governors Association and the Republican nominee for governor in New York
state. See, last week, RGA chair and New Jersey Governor Chris Christie
dismissed the idea of spending any RGA money to campaign for Rob Astorino,
the Republican who`s challenging Christie`s fellow governor from across the
river in New York, a guy by the name of Andrew Cuomo, a Democrat.

And in characteristic Chris Christie fashion, he was pretty harsh
about it, referring to Astorino as a lost cause. Quote, "We don`t pay for
landslides and we don`t invest in lost causes."

This even though the RGA pumped $1.7 million into Chris Christie`s own
re-election bid last year, a race he won by more than 20 points which sure
sounds like a landslide to me.

Astorino took issue with being called a lost cause and shot back at
Christie, suggesting he`s not qualified to lead the RGA at all. Quote, "If
Governor Christie is unable to help a Republican candidate for governor,
maybe he should consider stepping down as chairman of the RGA."

Rob Astorino did not stop there. He went on to speculate that maybe,
just maybe, Chris Christie didn`t want to support his bid for governor
because he wanted to stay on Andrew Cuomo`s good side.

(BEGIN VIDEO CLIP)

ROB ASTORINO (R), NEW YORK GUBERNATORIAL CANDIDATE: I don`t know if
there`s a connection with he and Andrew Cuomo on bridge-gate, or Cuomo has
something that he`s holding back information that could be damaging to the
governor.

(END VIDEO CLIP)

HAYES: That is a very serious allegation. But that`s not to say it`s
unique. In wondering aloud why Chris Christie and Andrew Cuomo seem so
simpatico, Astorino is giving public airing to a question that has been
swirling among grizzled New York and New Jersey politicos, observers and
journalists for some time. Why do these two governors, both guys with big
national ambitions and big egos from opposite sides of the Hudson River and
opposing political parties seem to have each other`s backs?

But having asked the question, himself, and called on Christie to
resign as RGA chairman, Rob Astorino was asked not to attend an RGA meeting
this week in Aspen, Colorado. So, of course, Astorino went, anyway,
tweeting out this photo of himself of himself with his friend, Governor
Rick Perry of Texas.

Returning home to the support of Rick Perry along with three other
sitting Republican governors, not including Chris Christie.

And joining me now is Rob Astorino, Republican candidate for governor
of New York.

So, what were you -- well, first of all, you, I understand, met with
the governor while you were --

ASTORINO: Which governor?

HAYES: Governor Christie.

ASTORINO: Yes.

HAYES: You met with Governor Christie. You guys had a little
conversation. How did that go?

ASTORINO: A very little one.

HAYES: Very short.

ASTORINO: Yes. It was quick. We both agreed to keep our own
opinions. You know, I`m not changing my opinion. I think as RGA chair, it
is his job to help elect Republican governors. As well as help get
Republican governors re-elected. That`s his chair.

The same thing with the Democratic Governors Association. The chair
would do the same thing.

So that`s what I said the other day in Manhattan, and that`s what I
said in Aspen yesterday.

HAYES: And he says you`re a lost -- he called you a lost cause to
your face? Call you a loser to your face?

ASTORINO: No, no.

HAYES: Seems like the kind of thing he would do.

(LAUGHTER)

ASTORINO: No, but you know what? I brought a copy of "The New York
Times." I said, how much is it a lost cause now?

We have a governor in New York who is under investigation by federal
prosecutors for potentially obstructing justice. Only in New York can the
anti-corruption commission already be corrupted, which is what Andrew Cuomo
allegedly has done. And this race has turned dramatically in 24 hours.

HAYES: I should say, since Andrew Cuomo is not here to defend
himself, that their people wrote a very long response to that "New York
Times" article, 15 pages, basically disputing some of the specific charges
and basically saying this was never legally constituted as an independent
body, and it reported to us the whole way.

I`m just -- for the record since they are not here.

ASTORINO: I believe the federal prosecutor differs on that.
Certainly, the attorney general of New York differs on that and said so in
court because this was set up as an independent investigation. The 25
members of this panel were deputized as basically assistant attorney
generals with subpoena power.

The allegations are from members of the commission was that Andrew
Cuomo blocked subpoenas that went for his pay-to-play pals, corporate
people who donated large sums of money for him.

HAYES: A media buying firm.

(CROSSTALK)

ASTORINO: Media buying firm. There are some serious allegations here
steering away the investigations.

HAYES: You`re basically saying to Chris Christie, hey, this thing is
on the front page of "The New York Times." I`m not a lost cause now. And
he says?

ASTORINO: Well, I think what he says is we`re going to watch to see
this. But my point is...

HAYES: OK. So here`s the deal. What is the deal? People have been
saying this in New York politics forever. What is the deal with Cuomo and
Christie? You basically said the thing that everyone always says behind
closed doors. Does Cuomo have the goods on Chris Christie on Bridgegate?
Do you think that`s true?

ASTORINO: I don`t know. But I do know this.

The Port Authority is basically controlled by both New York and New
Jersey, and the governors of both, executive director, chair. They do the
appointments. I don`t think a disabled vehicle on the George Washington
Bridge is not known by both when it happens. So I`m not saying he does or
doesn`t. All I`m saying is if there`s...

(CROSSTALK)

HAYES: That`s slightly disingenuous.

ASTORINO: If you think there`s a wink and a nod, then what I have
said is if there is something that makes you unwilling to help the
neighboring state, by the way, where you`re always in New York City,
raising money, and you should be doing that, then if you`re unwilling or
unable to do it, then maybe you shouldn`t stay as RGA chair. That`s what I
said. And I stand by that.

HAYES: I should say, "The Wall Street Journal" had reported this back
in -- Christie called Cuomo to complain that Cuomo`s guy Pat Foye, the guy
who ended up blowing up the Bridgegate thing, was pushing too hard on
Bridgegate, right?

And "The Wall Street Journal" still stands by this. Cuomo, the --
Governor Cuomo`s people said, absolutely not true. They knocked it down.
That`s a case where there`s a very clear -- I don`t know what the truth is.
Right? But these guys clearly have a relationship.

ASTORINO: Well, yes, they should. They`re governors of neighboring
states, so you will. Just like as county executive in Westchester, I have
a relationship with other county executives, Democrat and Republican.

But we have crossed that threshold now where we`re 100 days away or so
from an election and as the Republican Governor Association chairman, it`s
his job as he was in Connecticut to do, as he`s been in New Hampshire and
California, to be in New York and to help.

HAYES: Rob Astorino is running for governor on the state of New York
on the Republican ticket.

Thanks.

ASTORINO: Thank you, Chris.

HAYES: Of course, we would welcome Governor Cuomo on the show any
time for as long as he`d like to talk.

All right. Everyone`s wondering if the Supreme Court would actually
strike down part of Obamacare based on the very latest legal challenge, but
it looks like the Supreme Court has already given us the answer. That`s
ahead.

(COMMERCIAL BREAK)

HAYES: The Supreme Court has been caught red-handed. And by caught
red-handed, I mean caught interpreting the Affordable Care Act the way that
every single sensible person has been interpreting it since it was first
proposed and debated.

Why is this important? Well, this week we saw two big federal cases
deciding a brand-new totally novel challenge to Obamacare. The D.C.
Circuit Court of Appeals in Halbig v. Burwell ruled that the incredibly
vital subsidies that are provided by Obamacare, the ones for low and
moderate income people, applied only to state exchanges run by a state, but
not to those state exchanges run by the federal government.

And that appeals court came to this conclusion through, in my humble
opinion, a truly tortured reading of the Affordable Care Act. But another
appeals court, the Fourth Circuit Court of Appeals, called that out for
what I think it is, ridiculous. That court said it was as obvious that
subsidies were meant to apply to the exchanges in every state as it could
possibly be.

And here -- so, here we go again, a division among the lower courts
and once again a big Obamacare case quite likely going to the U.S. Supreme
Court.

OK. Here`s the thing, all right? The very justices on the Supreme
Court who arguably are the most interested in killing Obamacare, the four
dissenters who ruled against it the last time in the individual mandate
case, they just casually describe the way the law works in their opinion,
and as noted by Abbe Gluck of Politico, in that dissenting opinion, Antonin
Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito wrote the
following.

"Because Congress thought that some states might decline federal
funding for the operation of a health benefit exchange, Congress provided a
backup scheme. If a state declines to participate in the operation of an
exchange, the federal government will step in and operate an exchange in
that state."

That`s not all. They also wrote this: "In the absence of federal
subsidies to purchasers, insurance companies will have little incentive to
sell insurance on the exchanges. That system of incentives collapses if
federal subsidies are invalidated. The exchanges would not operate as
Congress intended, intended, and may not operate at all."

Did you see that there? They`re just describing the way the law works
and clearly they think in describing the way the law works that the
subsidies apply both in the federal exchanges and the state ones. In other
words, it is abundantly clear the Affordable Care Act was written to
provide subsidies to individuals in every state regardless of who was
administering those exchanges.

Even the four justices who ruled against the individual mandate in the
last big case were pretty clear about how the law works. This also comes
at a key moment with polling showing that most Americans say that either
themselves or others are better off under the Affordable Care Act, with a
new studying estimating more than 10 million adults gained health insurance
by midyear because the ACA.

Joining me, Annie Lowrey, newly named the contributing editor and
online columnist for "New York Magazine."

Annie, it`s great to have you. And you wrote a great piece today
about what the logical conclusion would be if, indeed, this challenge based
on this I think tortured reading of the law were to come to bear. What
would happen?

ANNIE LOWREY, "NEW YORK MAGAZINE": So, basically, what would happen
is that the 36 states that are using that federal architecture for the
exchanges, the people who have purchased insurance through the exchanges
wouldn`t lose their insurance coverage, but they would lose subsidies.

And so their insurance would get way too expensive and, you know, the
result would be that the insurance market would fray. These people
wouldn`t be able to afford it. Basically, the law starts falling apart.
Millions of households that would be affected.

And, again, that`s a big if, if the Supreme Court takes this case and
if they make this reading, which I think for the reasons that you laid out
really clearly seems unlikely that they would do.

HAYES: Right.

LOWREY: But, you know, it`s a possibility I guess.

HAYES: But the point you make in the piece which was, I think, really
important is this is part of a broader trend, which is a law that was
intended to provide health insurance for everyone everywhere is being kind
of attacked in this geographic fashion, so that we can end up in a position
in which it`s basically only blue states where people are getting the
benefits, even though it`s the red states that often have the largest
numbers of people that might benefit.

LOWREY: Exactly.

So, you know, back in that 2012 decision where they upheld the
individual mandate, they had this kind of like surprise where they said
that states could opt out of the Medicaid expansion. Again, Medicaid is
for really, really poor people. These are people that are not terribly
politically active and were not very knowledgeable about the law.

So in a lot of big states that could really use the Medicaid expansion
because they have large populations of lower-income uninsured adults, so,
like, Texas, Mississippi, South Carolina, they have refused the Medicaid
expansion. So the law, they`re not getting the full benefits of the law,
but they`re still paying for it.

Imagine if the 36 states that on top of that are also using those
federal exchanges, if they didn`t have those subsidies, what would happen
is they would get even less of the benefits of the law, even though they`d
be paying for it. So you would have a system where in states like New York
and California that set up their own exchanges and accepted the Medicaid
expansion, they`re really benefiting and they could end up being
significantly subsidized by the poor red states where most of the residents
who this law was intended to benefit are living.

HAYES: So here`s what`s interesting about this latest challenge to
me.

The politics seem very different, because you now have people who`ve
got the thing, tangibly, really for the first time since the law was passed
lo these many years ago. You have got 10 million people have got it. So
anything that were to happen like that, like people 76 percent increase,
would be -- meet with massive, I think, backlash from the publish.

LOWREY: I think that that`s right. I mean, just historically, it`s
very hard for the federal government to take something away.

HAYES: Yes.

LOWREY: Especially from middle-class people, right? They cut welfare
benefits, but a lot of the people who were receiving welfare benefits, you
know, they weren`t terribly politically active. There wasn`t a ton of
backlash to that.

But every time that they have even kind of broached the subject of
changing, for instance, Social Security, perhaps most famously, people
freak out. It`s really, really, really unpopular.

HAYES: And that`s what Republicans have always feared.

Annie Lowrey from "New York Magazine," thank you so much.

LOWREY: Exactly. Thanks for having me.

HAYES: What constitutes cruel and unusual punishment in the U.S. in
2014? We will talk about that ahead.

(COMMERCIAL BREAK)

HAYES: Republican Senator John McCain weighed in on the botched
execution of convicted killer Joseph Wood in his home state of Arizona last
night, telling Politico today -- quote -- "I believe in the death penalty
for certain crimes, but that`s not an acceptable way of carrying it out.
Lethal injection needs to be an indeed lethal injection and not the
bollocks-upped situation that prevailed. That`s torture."

Wood, who murdered his ex-girlfriend and her father in 1989, was put
to death with a combination of experimental drugs. Normally, it takes
around 10 minutes for a person to die by lethal injection. Last night, it
took one hour 57 minutes before Wood was officially pronounced dead, which
was enough time for his lawyers to draw up an emergency legal appeal asking
federal and state courts to step in and stop it.

Reporters who witnessed the execution said he looked like a fish on
the shore gulping for air.

(BEGIN VIDEO CLIP)

MICHAEL KIEFER, "ARIZONA REPUBLIC": He would open his mouth and you
could see his chest move and go all the way down to his stomach. So, it
was a clear gasp. And it just looked like a fish opening and closing his
mouth.

(END VIDEO CLIP)

HAYES: That same reporter, Michael Kiefer of "The Arizona Republic,"
wrote that -- quote -- "I made a pencil stroke on a pad of paper each time
his mouth opened, and ticked off more than 640, which is not all of them,
because the doctor came in at least four times and blocked my view."

For the 32 states that allow the death penalty, lethal injection seems
widely viewed as a more humane ways to do things. But what happened last
night in Arizona wasn`t just some one-off. This was the third botched
execution this year.

In Ohio in January, convicted killer Dennis McGuire was put to death
by lethal injection with a new and untested combination of drugs.
Witnesses say the process was accompanied by movement and gasping,
snorting, and choking sounds. Took 26 minutes for McGuire to die.

In April in Oklahoma, convicted killer Clayton Lockett was given a new
three-drug lethal injection combination. Three minutes later, he began
breathing heavily, writhing, clenching his teeth and straining to lift his
head off the pillow.

Then there was the case of Michael Lee Wilson, who reportedly said as
he was being executed by lethal injection in January -- quote -- "I feel my
whole body burning."

Has America all of a sudden become sloppy at putting people to death?
I don`t think that`s the case. What I think is happening is that the
botched execution is the product of two impulses in the American body
politic, support for the death penalty, which hovers around 60 percent for
a person convicted of murder -- it`s particularly useful for politicians
wanting to show their fealty to law and order.

But there`s also a generally accepted need to believe that we,
Americans, are a humane and nonbarbaric society, as enshrined in the Eighth
Amendment, which protects us from cruel and unusual punishment. So we need
to find a way to kill people that doesn`t look barbaric, that makes it look
like the person dying at the hands of the state isn`t suffering, which in
turn makes us, the people who are aware of it, feel OK about it all.

But the drug states have been using to make killing look more humane
have become less available, because the companies making those drugs have
protested their use in execution, which leaves states scrambling to use
untested drugs and drug combinations, turning lethal injection into
essentially medical experimentation, which makes the men being put to death
guinea pigs.

And this brings me to Judge Alex Kozinski of the Ninth U.S. Circuit
Court of Appeals, who in writing in favor of Joseph Wood`s execution moving
forward outlined a novel solution to prevent legal challenges to lethal
injection as a method of execution. Bring back the firing squad.

He wrote in part -- quote -- "Using drugs meant for individuals with
medical needs to carry out executions is a misguided effort to mask the
brutality of executions by making them look serene and peaceful. If some
states and the federal government wish to continue carrying out the death
penalty, they must return to more primitive and foolproof methods. The
firing squad strikes me as most promising. Eight or 10 large-caliber rifle
bullets fired at close range can inflict massive damage, causing instant
death every time."

Should we just go back to the firing squad? We will talk about that
next.

(COMMERCIAL BREAK)

HAYES: This morning, the day after Joseph Wood took nearly two hours
to die after being given a lethal injection by the state of Arizona, the
state`s largest newspaper, "The Arizona Republic," published an editorial
calling for a moratorium on the death penalty, arguing that: "By trying to
pretend we`re putting these convicts quietly to sleep, we have instead
fallen into a protocol that assures a lingering horror. If that`s not the
definition phrase cruel and unusual punishment, the words have lost all
meaning."

Joining me, Dahlia Lithwick, senior editor at "Slate," and Austin
Sarat. He`s professor of jurisprudence and political science at Amherst
College and author of "Gruesome Spectacles: Botched Executions and
America`s Death Penalty."

And, Austin, I will begin with you. You wrote a whole book about so-
called botched executions. Why are we seeing this happen this year?

AUSTIN SARAT, AMHERST COLLEGE: Well, I think to really understand
what`s happening this year, you have to put it in a broader context.
Botched executions are not new.

What`s new is the context in which they are now happening. If you
look over the course of the 20th century in the United States, Chris, you
see that 3 percent of American executions were botched. And if you just
look at lethal injection since its introduction in the late 1970s and early
1980s, 7 percent of all lethal injections have been botched.

So botched executions are part of the American story, part of the
American story about capital punishment. And that story`s been propelled
by a belief and a faith in scientific progress and the belief that we could
find a technology of execution that would be safe, reliable, and humane,
that would resolve the dilemma that you have so nicely talked about before
the break, that would allow us to execute and also to be in conformity with
our own best values.

And I think what we`re seeing is the wheels are just coming off the
machine.

HAYES: Yes.

I mean, Dahlia, Kozinski, of course, is a very colorful judge in the
Ninth Circuit, and I think he was sort of, I think, kind of trolling a
little bit with that proposal. But, I mean, it does strike me at this
point that a firing squad would be more foolproof than what we are seeing
now and would probably live up to the Eighth Amendment better than the
spectacle playing out right now, at least according to the courts.

DAHLIA LITHWICK, "SLATE": I mean, two things, Chris.

I actually don`t think he`s being completely fatuous. I think he`s
saying, and this is really, you know, after an hour and 57 minutes of
watching someone gasp and twitch, that was torture. I don`t think John
McCain is wrong.

But I think the other thing that`s sort of attractive about lethal
injection is that it`s not a secretive process. One of the reasons, as
Austin says, the wheels are coming off, is because in the last few months
and years, we have seen state protocols that were once quite open and by
the books and understood and coherent become really enshrouded in this
black blanket of secrecy.

And so we don`t know -- we still don`t know where the drugs came from
that were used in the Wood execution. There`s so much that we don`t know,
and this is the basis of the lawsuit out of Arizona yesterday. And so I
think the secrecy is the other thing.

At least with guns, you know where they come from and where the
bullets come from.

HAYES: Right.

And, Austin, also, the other -- I guess the question is, is there such
thing as a foolproof mechanism? I mean, is the assumption here in what
Kozinski is proposing, which is that a firing squad is foolproof, is it in
fact borne out historically to be the case foolproof?

SARAT: No, it`s not.

But, Chris, in a way, I think you missed the real point of Kozinski`s
intervention. It wasn`t to recommend the guillotine or the firing squad.

HAYES: Right.

SARAT: I think the significance of it is that Alex Kozinski, who`s a
supporter of the death penalty and is by no means a liberal, described
execution by lethal injection as brutal.

HAYES: Right.

SARAT: He described execution, itself, as brutal.

And that`s the kind of talk that usually comes from abolitionists or
progressives. To have Kozinski say, look, we better face the brutality of
capital punishment, that`s a moment of great significance. That should not
be lost in what followed in his recommendation about the firing squad.
Look, there is no foolproof technology for putting people to death.

HAYES: And there`s a connection between those two, right? Because
what he`s saying is, you need to face up to the brutality. If you as a
society have decided that you are going to engage in a punishment that is
brutal, then go look straight into the dark heart of the brutality that it
is and don`t try to essentially medicate it away by making sure you do it
in a -- quote -- "quiet and serene way."

There`s this crazy Scalia quote where he talks about at some point --
in one opinion, he sort of talks about like the serenity of quietly falling
asleep into death, you know, which gets to the point that there`s a denial,
I think, about a lot of Americans about what exactly we`re doing when we`re
doing this, Dahlia.

LITHWICK: Well, and it`s so exacerbated, Chris, because we want it to
look like it`s just a dental procedure, you know, this quiet sleep and
there`s gurneys and there`s white coats.

But professional associations won`t let anesthesiologists participate.
You know, doctors are very reluctant to get involved. You can`t get a
single anesthesiologist to really tell you what quantities of drugs would
really be optimal.

So this is on a collision course with actual medical professionals.
And what that means is that you have people administering these injections
-- and this was certainly the case with Clayton Lockett -- who can`t even
find the vein.

HAYES: Right.

LITHWICK: So you can say it looks like a root canal, but is not being
administered by doctors.

HAYES: That quote from Scalia is how enviable a quiet death by lethal
injection.

Austin, historically, I think it`s interesting to me. We look at Iran
right now, for instance, and Iran hangs people by cranes publicly. It`s a
gruesome, barbaric, disgusting practice and we think, oh, that`s the
terrible Islamic Republic of Iran.

SARAT: Right.

HAYES: How has our stance of what is gruesome and uncivilized and
what`s perfectly proper evolved over time?

SARAT: Well, again, I think the story of the American death penalty
is this romance with the idea of technology. We will find a
technologically acceptable way that will make sure that, when we execute
people, what we are doing is always better than what they do.

If you look at the development of execution in the United States, over
the last 100 years, the story is always the same and the promise of the
technology is always the same. And, in the practice, it always lets us
down.

HAYES: It`s always the next one that`s going to be the right one, and
then it doesn`t.

Dahlia Lithwick from "Slate," Austin Sarat from Amherst college, thank
both.

And that is ALL IN for this evening.

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

Copyright 2014 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.>

Discuss:

Discussion comments

,