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All In With Chris Hayes, Thursday, December 11th, 2014

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Show: ALL IN with CHRIS HAYES
Date: December 11, 2014

Guest: Kenneth Roth, Steven Hawkins, Taylor Rees Shapiro, Caitlin
Flanagan, Robert Costa, Glenn Carle, Kenneth Roth

(BEGIN VIDEOTAPE)

CHRIS HAYES, MSNBC HOST: The CIA strikes back.

JOHN BRENNAN, CIA DIRECTOR: They did what they were asked to do in the
service of our nation.

HAYES: CIA chief John Brennan issues a stunning rebuttal to the Senate
report of Bush era torture and makes no commitment that the United States
won`t torture again.

BRENNAN: I defer to the policymakers in future times.

HAYES: Tonight full analysis of today`s remarkable press conference as the
question of prosecution lingers.

Then the Cromnibus revolt.

REP. NANCY PELOSI (D-CA), HOUSE MINORITY LEADER: So here we are in the
House being blackmailed.

HAYES: Leader Pelosi joined Elizabeth Warren to fight the big bank
giveaway.

SEN. ELIZABETH WARREN (D), MASSACHUSETTS: It is time for all of us to
stand up and fight.

HAYES: Plus, an incredible protest scene on the steps of the capitol.

Yet, another blockbuster allegation against Bill Cosby and another report
casts even more doubt on "Rolling Stone`s" campus rape story.

ALL IN starts right now.

(END VIDEOTAPE)

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

Right now the government is facing prospect of a shutdown at midnight if
lawmakers in Congress cannot pass a bill to fund the government. Senate
Majority Leader Harry Reid and President Obama are both backing a massive
$1.1 billion spending bill known as the Cromnibus, that`s continuing
resolution on Cromnibus, that would fund the government for nine months
that was worked out by negotiators from both parties, is now waiting for a
vote in the House.

House Speaker John Boehner also backs the bill but here`s the thing, there
are not enough Republican votes to pass it without Democratic help.
Boehner needs dozens of Democratic lawmakers to sign on. But Senator
Elizabeth Warren and House Democratic leader Nancy Pelosi have come out
against the bill, revolting over a provision designed to weaken Dodd-Frank
Wall Street regulations along with some provisions that loosens campaign
finance laws.

(BEGIN VIDEO CLIP)

PELOSI: Here we are in the House being blackmailed, being blackmailed, to
vote for an appropriations bill. This is a ransom. This is blackmail.
You don`t get a bill unless Wall Street gets its taxpayer coverage.

(END VIDEO CLIP)

HAYES: The president himself started making phone calls this afternoon to
try to persuade lawmakers to vote for the bill. Then just hours ago, amid
extraordinary division within their ranks, Democrats held a caucus meeting
to try to come to some sort of consensus. They were joined in the meeting
by White House chief of staff Denis McDonough.

With time running out to avert the shutdown, Congress has to pass a short-
term continuing resolution tonight to give lawmakers more time to pass the
Cromnibus or pass a different bill to at least keep the government funded
into early next year. Otherwise, at midnight tonight, the government will
run out of funding.

Joining me now, NBC News White House senior correspondent, Chris Jansing.

Chris, what`s the latest? Does the White House have a -- have a whip
count? And did they think when this day started this is where they would
be, whipping votes against their own House minority leader Nancy Pelosi?

CHRIS JANSING, NBC NEWS WHITE HOUSE SENIOR CORRESPONDENT: Now there`s been
a big change this morning and the confidence they had this morning, and one
person who was inside that room with Denis McDonough just told me if
anybody tells you they think they have a whip count, they don`t have it.
But here`s what we know. We`re back in a situation where House Republicans
are looking to Democrats to get the votes they need.

Now Nancy Pelosi sees that as an opportunity. Right? She sees that as
leverage. For the White House this is a big headache. There was a lot of
confidence this morning this was going to get done. As you mentioned, by
the afternoon the president and vice president were make making calls. And
so Denis McDonough spent about an hour with the Democratic caucus tonight
making the case for the president.

Now I`m told he made a forceful case but didn`t change a single mind. Only
maybe kept some people who are for it on board.

Here`s the argument. President Obama they say doesn`t like increasing the
influence which he had on campaigns. He doesn`t like relaxing regulations
on big banks. But McDonough`s message was to Democrats, this is a 1600-
page bill, it`s a compromise, it`s the best we`re going to negotiate before
the new super majority takes over in January.

And the White House is also pushing hard on what they say the spending plan
has that they`d like. Billions of dollars for ISIS and Ebola, a double
digit increase for both the CFTC and the SEC to regulate Wall Street, money
for climate change. But, again, Pelosi thinks they`ve got leverage because
the Republicans need them as they did last year with the government
reopening after that 16-day shutdown, Chris.

HAYES: I`ve got to say. Here`s what I find so odd about the dynamics
right now. The provision that seems to be the sticking point here is this
provision that would change a pretty important regulation about how big
banks can deal with very high risk (INAUDIBLE). And as far as I can tell,
there`s no one actually affirmatively making the case for that on policy
grounds. You can`t find anyone in front of a microphone saying this is
what`s best for America.

This is just someone trying to stick something into this bill and everyone
doesn`t like who`s talking about it but sort of says it has to pass anyway.

JANSING: Yes. And that`s exactly what Denis McDonough said, that`s what
we heard today from the White House, we don`t like this. In fact the
president had said previously in another incarnation, I would veto that.
But here`s the other side of that coin, Chris, nobody wants a shutdown.

HAYES: Right.

JANSING: So, you know, you had White House in touched with leaders so what
do they do now? Maybe a couple of days extension to try to get this done.
We`re just two weeks away from Christmas. Maybe it`s going to be a three-
month plan. But that`s what`s hanging over everybody`s head. First of
all, the possibility of a shutdown and the second that, at least from the
White House perspective, the Democrats have a much weaker hand to play if
they wait.

HAYES: Yes. All right. Chris Jansing, from outside the White House,
thank you very much for that.

JANSING: Yes.

HAYES: Joining me now, Robert Costa, national political reporter of "The
Washington Post."

Robert, what`s the -- what`s the thinking on the Republican side of this?
I mean, Boehner lost -- how much did he lose this morning? There was a
test vote on the rule. I think he lost about 20 votes? Am I right?

ROBERT COSTA, THE WASHINGTON POST: That`s right.

HAYES: So -- so why -- I mean, it just seems like if he really needed to,
he could marshal the votes himself, right?

COSTA: Well, it`s very difficult for Speaker Boehner right now. He`s
trying to balance the conservatives who really don`t like appropriations
bills in any sense. And he`s trying to go to the people like
Appropriations Committee chairman Hal Rogers and say I`m still with you,
I`m still trying to get your package passed, but you cut with Barbara
Mulkowski. But there`s just not a lot of conservative appetite to put an
appropriations bilge forward.

So Boehner keeps losing votes, he`s going to the Democrats to try to get
this past. And he`s in a difficult spot because at the end of the day he
knows he may just have to pass a short-term continuing resolution and he
has it in his back pocket.

HAYES: If -- OK. So let`s say there`s a short-term continuing resolution,
that the case being made by Denis McDonough, as I understand it from the
reporting I`ve seen in the caucus today is this is the high point of the
leverage we`re going to have over this if we kick it to February, we`re
going to come back and Republicans are going to both -- control both Houses
in Congress with larger majorities in the House. We`re going to have less
leverage.

Is the thinking of the Republicans on the same line? I mean, if you`re
John Boehner, why not scotch the thing, pass the short-term, come back when
you`ve got bigger majorities in February?

COSTA: Well, that`s why Boehner is losing Republican votes because within
the Republican cloakroom in the House that`s the argument people like Steve
King and other conservatives are making. They`re saying we`re so
frustrated with the -- with what the White House did on immigration, just
pass a short-term CR until February or March, come back and try to have
more leverage when the Republicans have control of both chambers. And that
argument isn`t the leadership`s case but it`s catching on with the rank and
file.

HAYES: And I should be clear here, the big law for conservatives, the sort
of Tea Party element of the caucus, is that there is nothing about the
immigration deferred regulation. There`s really nothing about Obamacare in
this. And the irony is that the big political issues of the day are
nowhere to be found in this omnibus. What we`re seeing is a fight over the
swaps push-out rule which I`ll ask, with the same thing I just asked Chris
Jansing, is there anyone in the Republican Party affirmatively making the
case for this as policy or is it just a blatant giveaway to the banks?

COSTA: It seems -- no one is making a forcible full-throated case for it.
It`s bad politics to do so. Republicans are walking away from it. But
this is really a story of old Congress versus new Congress. The old
Congress, the way the Boehner allies within Congress operate is passed
these 12 appropriations bills and put everything in there because we`re in
an age now, Chris, as you know, that doesn`t have earmarks.

HAYES: Right.

COSTA: So appropriations bills are the vehicle to get things in there,
that`s why people are trying to preserve this package even at the 11th
hour.

HAYES: Yes. I just want to reiterate for everyone watching right now.
This is kind of amazing, right? We`re up a against a deadline. The
government is going to run out of funding. There`s a $1.1 trillion package
on the table. And it might fall -- fall apart over a provision that would
deregulate big Wall Street banks that nobody in Washington right now is
affirmatively advocating for. No one is taking to the floor to say, I
believe in this, I want to put my name to it,.

No one will even say who wrote the provision or where it came there. It
just appeared, you can`t find Republican, Democrat, conservative, liberal
to come to a microphone and say why this thing should be passed.

COSTA: That`s exactly right. I think this really reflects the political
savvy of Senator Warren because just a few days ago there was a debate
between passing an appropriations bill or doing a short-term CR and all the
circus was about immigration. Warren was able to turn this debate into
something else, about Wall Street focus on a specific thing in the package.
That has really turned the debate and turned Democrats away from the White
House.

HAYES: Robert Costa, always a pleasure. Thank you.

COSTA: Thank you.

HAYES: Amazing. No one will defend it. It`s just in there and you`ve got
to pass it.

All right, the other biggest story in the news today, the response to the
Senate CIA torture report from the CIA. That`s ahead.

(COMMERCIAL BREAK)

HAYES: The most chilling CIA press conference was in response to my
colleague, Andrea Mitchell`s question to CIA director John Brennan.

(BEGIN VIDEO CLIP)

ANDREA MITCHELL, MSNBC ANCHOR: Could there be another covert finding and
rulings and advice from the attorney general that would lead you and your
successors to say, we should do this because there could be some value to
prevent an attack on America?

(END VIDEO CLIP)

HAYES: His answer ahead.

(COMMERCIAL BREAK)

HAYES: It`s a remarkable scene playing out in Washington right now in the
renewed debate in this country over the efficacy and morality of torture.
It`s been set off by the Senate Intelligence Committee`s release of its
searing report on the CIA detention and interrogation program.

In a rare move for the head of such a secretive agency, CIA director John
Brennan today gave a press conference responding to the report and
answering reporters` questions. And he criticized the approach taken by
Intelligence Committee`s Democratic leadership.

(BEGIN VIDEO CLIP)

BRENNAN: We gave the committee our full support, providing an
unprecedented amount of sensitive CIA documents to the committee and
devoting considerable resources to help it with its review. Unfortunately,
the committee could not agree on a bipartisan way forward and no CIA
personnel were interviewed by the committee during the course of the
investigation.

(END VIDEO CLIP)

HAYES: All right. So this report has already been the subject of what
really can only be described as an all-out war between the Senate
Intelligence Committee and the CIA to the point where the CIA accused
committee staff of removing classified documents from an agency facility
and CIA agents actually hacked into Senate computers being used for the
investigation. That means they spied on the legislative body charged with
overseeing them.

And both of those incidents were referred to the Justice Department.
That`s how nasty it got. Now think about for a second how messy the battle
lines are in this ongoing war. On one side, you`ve got a report released
by Democrats on the Senate committee condemning torture authorized and
carried out by the Republican administration of George W. Bush and Dick
Cheney.

On the opposing side, defending some of that administration`s policies
you`ve got the CIA director, John Brennan, an appointee and closer advisor
to a Democratic president, Barack Obama. To confuse those allegiances even
more, when Brennan took the microphone today, he really sounded more like
Dick Cheney than he sounded like Barack Obama. Starting a statement by
invoking 9/11.

(BEGIN VIDEO CLIP)

BRENNAN: It was 8:46 a.m. on the morning of September 11th, 2001 when the
north tower of the World Trade Center in New York City was struck by an
aircraft commandeered by al Qaeda terrorists. In the immediate aftermath
of 9/11, our nation ached, it cried and it prayed. And in our pain, we
pledged to come together as one and to do what we could to prevent Osama
bin Laden and his killing machine from ever carrying out another attack
against our beautiful country.

(END VIDEO CLIP)

HAYES: Brennan acknowledged errors in the agency`s detention and
interrogation program, blaming them on a few individuals who used
unapproved tactics.

(BEGIN VIDEO CLIP)

BRENNAN: In a limited number of cases, agency officers used interrogation
techniques that had been authorized, were abhorrent and rightly should be
repudiated by all. And we fell short when it came to holding some officers
accountable for their mistakes.

(END VIDEO CLIP)

HAYES: While he stated unequivocally, he supports President Obama`s
decision to prohibit what the CIA euphemistically insists on calling
enhanced interrogation techniques on today`s acronym, EITs, Brennan refused
to call those techniques torture. And he rejected the report`s conclusion
they did not produce any actionable intelligence.

(BEGIN VIDEO CLIP)

BRENNAN: Detainees who were subjected to EITs at some point during their
confinement, subsequently provided information that our experts found to be
useful and valuable in our counterterrorism efforts. In the cause and
effect relationship between the application of those EITs and the ultimate
provision of information is unknown and unknowable. But for someone to say
that there was no intelligence of value, of use, that came from those
detainees once they were subjected to EITs, I think that is -- lacks any
foundation at all.

(END VIDEO CLIP)

HAYES: Interestingly, that position is actually shared by the Obama
administration, despite some tough talks from President Obama on torture in
the past.

(BEGIN VIDEO CLIP)

JOSH EARNEST, WHITE HOUSE PRESS SECRETARY: The president`s view is that it
is impossible for anyone to know whether or not the use of an enhanced
interrogation technique was necessary to obtain a specific piece of
information precisely because it`s impossible to know whether or not you
could have obtained that piece of information through other means.

(END VIDEO CLIP)

HAYES: Now notice that the spokesperson for the Obama White House using
the term enhanced interrogation technique. Now that`s not likely to sit
well with Democratic Senator Dianne Feinstein, who is the current chair of
the Intelligence Committee. In fact, she spearheaded the report and she
was live tweeting point by point rebuttals during Brennan`s remarks
including this one, quote, "No evidence that terror attacks were stopped,
terrorists captured or lives saved through the use of enhanced
interrogation techniques." Hash tag, "read the report."

I spoke to Glenn Carle, 23-year veteran of the CIA`s clandestine services
who worked in the Enhanced Interrogation Program. I asked him what his
reaction was to Brennan`s performance today.

(BEGIN VIDEOTAPE)

GLENN CARLE, FORMER CIA OFFICER: I think performance is maybe a little
unfair comment and characterization. John had -- whom I know very well and
have a great deal of respect for actually, he`s a friend and someone I
value as a colleague, had a number of constituencies he had -- tried to
help. Of course, he doesn`t want to see his employees demoralized and
punished for things that they tried to do right.

He doesn`t want to associate himself with things that went wrong. He
doesn`t want to pass the buck -- or maybe he does -- but he doesn`t want to
pass the buck to the political administration that was in power at the time
because that`s even more sensitive. So I think, on the whole, he -- while
speaking carefully, acknowledged the facts in the Senate report, which is
that the program was a failure. It was wrong. It was torture.

And we didn`t get that right but we are now coming out. And I do know that
John opposed these things personally himself as he said.

HAYES: Well, that was not -- I`ve got to say, as someone who`s now --
doesn`t have the background in history you do, of being at Langley, of
being in the CIA, and having the kind of institutional outlook of the
agency. For someone in the general public, it looked like someone who was
defending the agency. I mean, it seemed like that to me was the
constituency that was front and center in that speech.

CARLE: Yes.

HAYES: More than whatever other constituency considerations there were
which came a very distant second and third.

CARLE: Well, I don`t know if it was a very distant second and third. But
certainly, I agree that he was out to defend the agency. No question about
that. And he felt very obviously very ill at ease and didn`t want to use
the world torture. That`s in line, actually. It might be wrong, you could
argue, but it`s in line with the CIA culture that I knew.

The word torture was never used. One couldn`t bring themselves to say
that. It was beyond imagination that the Americans would do this, and so
he came up with all his euphemisms. That`s in keeping with the culture.
He did acknowledge that these things were wrong which was positive. But he
avoided the bold statement.

I think probably also not for a cultural reason, but because he is trying
to protect people he thinks attempted to act honorably with hideous
guidance and not to use a word in characterizations that could create even
more problems for the people down the line.

HAYES: It was striking to me how much in the Brennan`s statement and in
the fallout from this, the CIA and the folks around the CIA, and people who
were speaking off the record and on the record really view themselves as
kind of victims in this. Embattled. Hung out to dry, betrayed by the
political leadership. And that is not a new sentiment in the agency. I
mean, it`s been like since the agency often, if not always feels that way.

CARLE: Yes. Well, I think often that`s true. And I know for a fact and
it`s not surprising, you just -- you put your finger on it, and it`s
happened over and over. When after 9/11, when the administration said, you
have these detainees, get the information from them. Jim Pavitt, who was
at the time the head of the clandestine services, and I believe George
Tenet, were quite clear in going back to the White House and saying, we are
always the ones who take the fall. We`re here to do the hard jobs.

But we will not act unless we have clear guidance on what is legal. And
the response was, which I think was from the office of the vice president,
though I don`t know for a personal fact -- firsthand fact, said of course,
and went to the political hack John Yu who came up with the torture
memorandum. Then you had this political, legal cover.

HAYES: Right.

CARLE: The torture memorandum was outrageous. And it has nothing -- it
totally contradicts all the American heritage and jurisprudence. In fact
all the western heritage, but that was the cover, and from there things
spun down. Now what`s implicit in your comment is very important, which is
OK, you might have political cover, but you also are obliged to uphold the
meaning of your oath.

HAYES: That`s right.

CARLE: That`s the dilemma that I faced, that when the torture memo
contradicted blatantly with our regulations and our laws. But it`s a hard
moment to face when you`re the equivalent of a lieutenant colonel.

HAYES: Yes.

CARLE: With the weight of the government against you and unfortunately
many people got it wrong.

HAYES: Glenn Carle, it`s really -- it`s been a pleasure to talk to you the
last few nights. Thank you very much.

CARLE: My pleasure.

(END VIDEOTAPE)

HAYES: I`m going to talk to two of the biggest names in human rights
advocacy about what comes next. Next.

(COMMERCIAL BREAK)

HAYES: The most chilling, revealing moment in today`s news conference with
the CIA director John Brennan was the answer to a question from my
colleague, Andrea Mitchell, NBC News` chief foreign affairs correspondent.
It was to my mind the $64,000 question. Will we ever do this again? Have
we actually closed the book on this or will it happen in the future?

And John Brennan, very resolutely, left the door open. He said it depends
on what happens in the future of who`s running the government. We do what
we`re told. In Andrea Mitchell`s multi-part question, and Brennan`s
answer, here`s that particular exchange.

(BEGIN VIDEO CLIP)

MITCHELL: What or which of these techniques could be used if, as the
director of Central Intelligence, you and another president or this
president, were faced with an eminent threat? Could there be another
covert finding and rulings and advice from the attorney general that would
lead you and your successors to say we should do this because there could
be some value to prevent an attack on America?

BRENNAN: As far as what happens if, in the future, there is some type of
challenge that we face here, the army field manual is the established basis
to use for interrogations. We, CIA, are not in the detention program. We
are not contemplating at all getting back in the detention program, using
any of those EITs. So I defer to the policymakers in future times when
there is going to be the need to be able to ensure that this country stays
safe if we face some type of crisis.

(END VIDEO CLIP)

HAYES: This is why those who are opposed to torture think it`s important
to decide morally for there to be accountability. Because even if the
current president has foresworn torture, there will be another president in
two years. And who knows what terrible event might precipitate revisiting
the use of torture.

The idea of a categorical prohibition on torture like those in treaties to
which we are party and in the U.S. criminal law is that it is, in fact,
categorical. That`s why prosecution or some kind of accountability is so
necessary.

And joining me now Kenneth Roth, executive director for Human Rights Watch,
and Steven Hawkins, he`s executive director for Amnesty International.

Did that stick out to you, that response from Brennan today?

KENNETH ROTH, EXEC. DIRE., HUMAN RIGHTS WATCH: Absolutely. You know, in
war, every soldier knows that you never follow clearly an illegal order.
Apparently that`s not the rule in the CIA. The CIA, well, it really
depends on what the policymakers tell us. And even though the prohibition
on torture is absolute, it exists in time of peace, in time of war, in
times of security threat, under threat of terrorism regardless, Brennan
says well, it depends.

HAYES: Well, they all say look, we`re just bureaucrats and we have
lawyers. We have the highest lawyer in the government which is the OLC,
Office of Legal Counsel, which determines that routinely issues memorandum
of legality. In fact, on the president`s deferred action, right, OLC
published some of their memos saying you can do this, you can`t do this,
right? We have that document from them. So what do you want us to do?
We`re not the lawyers?

(CROSSTALK)

ROTH: This is what`s so interesting. If you look at the Senate
Intelligence Committee report, it shows that very early on, the CIA lawyers
knew that they were committing torture and it was illegal. They had a
problem. So, first, they went to the Justice Department`s criminal edition
and said, would you promise not to prosecute us. They said no. So then
they went shopping to the political lawyers and they finally got John Yu
and the Office of the Legal Counsel working with David Addington, Cheney`s
guy, and they concocted the torture memos, which basically said torture
isn`t torture.

HAYES: Right.

ROTH: And that`s the piece of paper they`re trying to say this was in good
faith we relied on, when in fact they went shopping for it.

HAYES: Are you confident we won`t do this again?

STEVEN HAWKINS, EXEC. DIR. AMNESTY INTERNATIONAL: Not at all, Chris. And
you know, acknowledging that it happened is not the same as accountability.
And seeing this as a mistake is not the same as recognizing the crime both
in domestic and international law that torture is. And until there is a
fair and a full and impartial investigation based on the credible showing
that there is now, and wherever that evidence then leads towards
prosecution and whatever remedies for the victims, then the door is left
open, nothing will have been learned and, as Brennan says at the end, you
know, leaving it for a future policymaker or president to reopen.

HAYES: Yeah, you said last night, in terms of prosecution, you think that
there is ample evidence to prosecute Dick Cheney.

ROTH: Absolutely.

HAYES: Can you actually imagine that happening.

ROTH: As a political matter, no; as a matter of justice, it should.
Because...

HAYES: George W. Bush, too, the president?

ROTH: Well, we don`t know how much Bush knew. We know that Cheney was in
the weeds on this. He knew a lot.

HAYES: Yeah, in fact, Cheney today, you know, in various interviews is
going around saying, no, all this nonsense that they didn`t tell the
president, the president knew, the president knew. He knew what was going
on.

ROTH: And what Brennan basically said today is we were naughty, we were
naughty and we learned our lesson and we should look forward now. And
that`s going to stop the next CIA director from ordering torture? I mean,
basically you can imagine these CIA guys saying, you know boy, under Bush,
they got away with all of this, why shouldn`t we do it again?

HAYE: And also, what strikes me is that how much the argument justifying
it, I think, partly, because those torture memos are so discredited,
they`ve actually been officially repudiated by the office of legal counsel
and withdrawn, right. The actual legal findings are no longer operative.
They are so despised by people I think of good faith in the legal community
that what you`ve seen, instead, is a kind of brute utilitarian argument
about torture coming from the CIA, right. They`re left to not arguing
necessarily with legality, but just that worked.

HAWKINS: Right. But here`s the thing, to say that, you know, line staff
should be given the benefit of the doubt, the real issue is that this was a
systematic campaign that came from the highest levels of government and
that the political operatives within the Department of Justice, basically
signed the permission slip for a torture to take place.

HAYES: You work for Amnesty International. Torture happens around the
world, right?

HAWKINS: Well, see, this is it, this makes Ken`s job and my job that much
harder, Chris, because how are we going to hold accountable, for example,
the government of Mexico or any other government when there`s no
accountability, when there`s no full investigation here? And so this
president has to dig deeper, the department of justice certainly has now, I
think, some new evidence via for it.

We`ve seen 500 pages of 6,000. If there is new material when you have
Rodriguez saying that the rectal feeding was a new news for him, there`s
opportunity here for a re-examination and it has to happen.

HAYES: OK. Here`s my question to you as someone in the Human Rights
Watch, because I think it`s an important point. I think we think in other
countries, when bad stuff happens, it happens fully outside of the law,
some thug rolls in with a cigarette, puts it out on someone`s arm, starts
wailing on them. My sense, though, is that often there is legal cover,
right. I mean, what came to mind was the prosecution of Khorokovsky in
Russia, which was done by the procedures of Russian law, it just looked to
all the world like a selective prosecution because the man was funding the
opposition, right.

I mean, how much does this torture regime look like what happens in other
places in the world?

ROTH: I think where it`s similar is that almost every government says that
it`s respecting rights, every government pretends that it`s behaving
lawfully. In this case, the CIA, as you not, has lost the lawful cover, so
it`s falling back on the utilitarian argument. But it`s a weak utilitarian
argument, because if you`re going to violate so basic a prohibition as the
one on torture, you better be saving the world from a massive terrorist
incident. But instead what Brennan said today is we got useful
information, not necessary information. And even there he was fudging,
because he kept talking about people in, you know, basically the torture
program gave information -- the person we know the most about is Abu
Zubaydah. He sang like a bird before he was tortured. Once he was
tortured, he shut up.

But he was the guy in the program who gave information who under Brennan`s
test would have qualified as a success story.

HAYES: There`s been an interesting rise of what you might call what
aboutism from some conservatives and Republicans in response to this who
want to talk about targeted killing, JSOC and drones, something that both
of your organizations have been very outspoken in opposition to, I think is
morally abhorrent in certain circumstances and certainly constitutionally
questionable.

But there is a distinction in sort of international human rights law in so
far as killing in war is sometimes permissible whereas torture never is.
The prohibition on torture is absolutely categorical. Killing combatants
is more
subject to debate.

ROTH: I mean, you`re right about that. And the real problem with drones
is what happens when it`s not a war, because if they use the drones in
Afghanistan or Pakistan, there`s a war going on, today in same thing, but
when they use it in Yemen, when they use it in Somalia, where the U.S.
doesn`t admit that it`s at war with anybody, there the rules should be the
same rules governing law enforcement.

HAYES: And yet, somehow, Human Rights Watch and Amnesty International
doesn`t view this as zero sum, that like because there`s a drones program
and you`re opposed to targeted killing you can`t talk about torture.

ROTH: Well, no, of course not. You can assess the range of a government`s
behavior.

HAYES: right. Kenneth Roth and Steven Hawkins, thank you very much.

All right, back in a moment.

(COMMERCIAL BREAK)

HAYES: Tonight, another woman has come forward to accuse Bill Cosby of
drugging her, and like Janice Dickinson before her, she`s another
recognizable face: Beverley Johnson, a top model in the 1970s and 80s, the
African-American woman to appear on the cover of American Vogue says Cosby
lured her to his home in the mid-1980s and drugged her, quote, with the
intention of doing god knows what.

In her account, published in Vanity Fair, Johnson says she`s never gone
public with the allegations in part, because she worried about the
implications
of accusing the beloved African-American figure of drugging her. She`s
coming forward now becuase, quote, "I couldn`t sit back and watch the other
women be vilified and shamed for something I knew was true."

According to Johnson, Cosby waned her to audition for a small role on the
Cosby Show. Johnson attending the tapings of the show and met with Cosby
afterward. Each time after inviting Johnson and her young daughter to
brunch at his New York home, Johnson says Cosby asked her to come back to
his house and read
for the part a few days later.

Johnson writes in Vanity Fair that Cosby, quote, "said he wanted to see how
I handled various scenes so he suggested I pretend to be drunk." According
to Johnson, that`s when Cosby offered her a cappuccino from an espresso
machine. Johnson says she declined the offer, but that Cosby was
insistent.

She writes, "it`s nuts, I know, but it felt oddly inappropriate arguing
with Bill Cosby so I took a few sips of the coffee just to appease him."
Almost immediately, Johnson writes, she knew she had been drugged. She
says in the past she, quote, "experimented with my fair share of mood
enhancers," and quote, "I knew by the second sip of the drink Cosby had
given me, that I had been drugged and drugged good. My head became woozy.
My speech became slurred and the room began to spin non-stop. Cosby
motioned for me to come over to him as though we were really about to act
out the scene. He put his arms around my waist and I managed to put my
hand on his shoulder in order to steady myself. As I felt my body go
completely limp, my brain switch into automatic survival mode, that meant
making sure Cosby understood that I knew exactly what was happening at that
very moment.

Johnson says she then cursed at Cosby. Cosby allegedly grabbed her and
sent her home in the cab.

Johnson has kept her story a secret for decades. And according to Vanity
Fair, Cosby`s attorneys did not respond to the magazine`s request for
comment. An attorney for Cosby had no comment on these latest allegations
to NBC.

Now, we`ve been talking a lot about the rule of law this week. Does it
apply to the powerful and the powerless equally. Think about what it would
mean, hypothetically, if all of the allegations of drugging and sexual
assault and rape against Bill Cosby from more than two dozen women turn out
to be true? What would it mean if these allegations turn out to be true
and one of the most powerful, celebrated icons in American pop culture
spent decades as a serial rapist and has never been punished for it.

(COMMERCIAL BREAK)

HAYES: The fevered, last minute dealmaking over the cromnibus was not the
most dramatic thing happening in Washington, D.C. today. Amid the mad
scramble the whip votes for a trillion dollar spending bill, an
extraordinary act of protest took place on the steps of the Capitol today.

Here`s what it looked like when dozens of congressional staffers walked off
the job to protest the fact there have been no indictments in the deaths of
two unarmed black men Michael Brown and Eric Garner at the hands of white
police officers.

Congressman and civil rights leader John Lewis attended the event as well.
Senate Chaplain Barry Black led the group in prayer as they gathered on the
steps of the Capitol.

(BEGIN VIDEO CLIP)

RET. REAR ADMIARL BARRY BLACK, U.S. SENATE CHAPLAIN: As people throughout
the nation protest for justice in our land, forgive us when we have failed
to lift our voices for those couldn`t speak or breathe for themselves.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

HAYES: Tonight, the journalistic disaster that is the Rolling Stone
University of Virginia campus rape story just gets worse. As day by day
the story of the brutal gang rape of the UVA freshman named Jackie at a
fraternity house continues to unravel, when we last reported on the story
earlier in the week, it
was clear the Rolling Stone had not contacted any of the seven men accused
of carrying out the rape. The magazine had apologized for discrepancies in
their story.

Now, a new investigation by the Washington Post exposes even deeper issues
with the piece stemming from interviews with the three friends Jackie says
she saw the night of her alleged attack.

One of the most heartbreaking scenes in the original Rolling Stone report
comes on the evening of Jackie`s alleged rape. She tells the story of
meeting up with her three best friends who discuss in front of her whether
or not she should go to the police. Jackie told the magazine her friend
Cindy said, quote, "is that such a good idea? Her reputation will be shot
for the next four years. Andy seconded the opinion adding that since he
and Randall both planned to rush fraternities, they ought to think this
through.:

Jackie listened as Cindy prevailed over the group, quote, "she`s going to
be the girl who cried rape and will never be allowed into any frat party
again."

The Washington Post has now spoken to the three friends and they paint a
very different picture of what they say happened on that fall evening.
They told the paper that after a, quote, "traumatized Jackie told them she
was forced to perform oral sex on five men," which we should note is a
different account than what appeared in Rolling Stone, they, quote,
"immediately urged Jackie to speak to police and insisted they find her
help."

Not only that but that they were, quote, "never contacted or interviewed by
the pop culture magazine`s reporters or editors." That includes Randall
who Rolling Stone said in the piece, quote, "citing his loyalty to his own
frat declined to be interviewed."

So we`ve got a major discrepancy there.

Once more, the three students not only questioned Jackie`s account of the
evening, but also questioned whether the boy she told them she was dating,
the one who she said orchestrated the attack exists at all.

They told the paper that they became curious about the boy Jackie said she
was dating that fall. She proceeded to give them the name of someone who
did not match anyone who attended the UVA. The picture she gave them of a
boy turned out to be one of her high school classmates.

When the Post contacted the person in the pictures he said, quote, he
barely knew Jackie, hasn`t been to Charlottesville for at least six years.

To be clear, even as Rolling Stone`s reporting continues to fall apart, it
really does seem that something horrible happened to Jackie in the fall of
2012. Two of her suitemates have said she appeared traumatized after an
event during that time period. And in the words of her own friend Randall,
quote, "I had never seen anybody acting like she was on that night before
and I really hope I never have to again. If she was acting on the night of
September 28, 2012, then she deserves an Oscar."

Well, we talked to The Washington Post reporter who spoke with Jackie`s
three friends next.

(COMMERCIAL BREAK)

HAYES: Joining me now Caitlin Flannagan, contributing editor of The
Atlantic who wrote the cover story earlier this year "The Dark Power of
Fraternities," which is a fantastic piece; and Washington Post reporter
Taylor Rees Shapiro who was one of the reporters to report that followup.

Taylor, let me start with you. So I have to say, it came as a bit of a
surprise that none of these people had talked to the Rolling Stone reporter
and one of the key discrepancies that strikes me before we get to anything
about the story and the backlash, et cetera, is just whether this guy
Randall, who`s pseudonym, was
contacted or not.

TAYLOR REES SHAPIRO, WASHINGTON POST: He told me he was not. And in
addition he said that if he had been contacted, he gladly would have given
an interview to offer his side of what occurred that night.

HAYES: And these people were there on this night that something they think
appears terrible happened, that the person in question, Jackie, was
traumatized in some profound sense. She actually told them there had been
a sexual assault, correct?

SHAPIRO: Correct. They -- she had said that she had been out on a date
and
that it had ended with the man she was with stopping at a fraternity where
she agreed to go inside but was then attacked and forced to perform oral
sex on five men.

HAYES: What has the response been to these three friends, one of whom is
sort of characterized quite insultingly, I would say, in the Rolling Stone
piece for someone who never got a chance to defend themself. What was
their response to the Rolling Stone article?

SHAPIRO: They read it and they didn`t believe that what was portrayed in
the article really happened. I mean they were there that night, and they
would know exactly what they believe happened and it was clearly different.
So they saw the inconsistencies immediately.

HAYES: Kaitlin, you wrote about this great piece about fraternities, this
long investigative piece that was sort of focused on the microindustry or
macroindustry of fraternity liability lawsuits over awful things that
happen at fraternities. And I`m curious how you`re viewing this story and
the fallout, particularly when there`s been so much discussion of the fact
of what does this do
to the general cause. What does this doe to people talking about the real
problem with sexual assaults on campus, et cetera?

CAITLIN FLANAGAN, THE ATLANTIC: Well, this Rolling Stone piece has rung a
bell that we`re all going to have to unring every single time we try to
talk about sexual assault in fraternities. And let me be very clear, it`s
a real problem. The number two most common form of liability claim against
the American fraternity industry is for sexual assaults.

And in my piece in The Atlantic, I reported at length about a very brutal
sexual assault, nothing at all like the one in Rolling Stone, but
nonetheless a brutal sexual assault, which resulted in a criminal
conviction and a prison term.

So crimes take place very frequently in fraternity houses. And among them,
not infrequently, are actual rapes.

So, it`s very disturbing to me. It`s been actually on a certain level
personally distressing to me to see the progress that was made I think this
year in many ways toward reforming the fraternity industry to see it -- the
clock kind of go backward on it. It`s been an upsetting experience I know
also for young women.

HAYES: You know, I`ve had a lot of people say that. And I do understand
that from a sort of perceptual stand point. But Amanda had an interesting
piece in Slate today where she said look, these two things do not have to
be bound to each other. An instance of what`s looking increasingly like
egregious journalistic malfeasance and an account that doesn`t look like
it`s holding up, that is distinct from what we broadly know to be the case
and the statistics are disputed, but we know that there is quite a bit of
sexual assault on campus, largely unreported. We could look at the numbers
of the colleges and what they report federally, which are just laughably
small, don`t even pass the kind of sniff test.

And so we can, in some ways, separate -- we should be able to separate
those two.

FLANAGAN: I would respectfully disagree with her in regards to the
fraternity industry. The only people with the power to reform the industry
are those people within the industry and they clearly know what they need
to do to rid themselves of at least a significant percentage of those
rapes, they know what they need to do. But this story has led into a
belief that they have which is that women are perhaps too quick to report
things that were maybe consensual. This was not the case here at all, but
that the press is out to get them. That we`re a malevolent group, that all
we`re trying to do is trash them and that nothing the press says about them
needs to be listened to.

And I was very hopeful that coming to the end of this year, they would be
listening to us in the press and that we would be saying, look, we`re
keeping an eye on you and we`re keeping an eye on the young people in your
fraternity houses and we`re going to report very carefully and very
accurately on what happens in the hopes of affecting social change. And
they will see this as pushing it back very, very far.

So I`m afraid I do I have to disagree with that.

HAYES: Taylor, I saw some indications today Rolling Stone is now sending
some reporters down to re-report this story on the UVA campus. At this
point, it starts to feel to me that there`s a kind of cost-benefit analysis
to be waged here. I mean, particularly if the young woman at the center of
this who whatever happened to her clearly seems like she has gone through a
trauma, is troubled, her identity has been, you know, tweeted out by
certain individuals. I mean, at what point do you kind of run out of
marginal justification to keep going at this story?

SHAPIRO: For The Washington Post it`s a public university within our
coverage area. And it`s a prestigious ones at that, it`s one of top
schools in the
country and these were serious allegations. Obviously it was our duty to
continue to look into it to find out what really happened that night.

HAYES: Right, I understand that. But I think the question then becomes
what are your coverage plans in the future?

SHAPIRO: To find out the truth of what happens.

We`re still not really sure what occurred that night. Different people
have different accounts and even the people who were there in the immediate
aftermath said that they`re not exactly sure.

HAYES: So you`re still on this case?

SHAPIRO: Absolutely.

HAYES: Caitlin, what did you find when you were doing your reporting for
The Atlantic about you call the sort of fraternity industry. One of the
things that jumped out in the piece was the kind of legal architecture
that`s been assembled around fraternities in particular to defend
themselves, not just from accusations of sexual assault, but all kinds of
civil liability claims that they are running into all over the place.

FLANAGAN: It`s a massive industry and it operates on thousands of American
campuses. It has a unique relationship to our universities and colleges in
America. And I think it is right for us as a public to say as much as they
ad to the campus -- and they do when it works well, it`s a very good
system, but that they have caused unbelievable amounts of suffering to a
huge number of young people. And I think to report on that in a way that
is anything other than accurate is really to let down our young people.
Because we sort of as the elder
statesman of the situation, the grownups, it`s our responsibility to do
everything we can to make sure that these places aren`t dangerous where the
young people going. And so I`m disheartened by what`s happened.

But I won`t stop talking to people about the real danger that many young
women face in fraternity houses.

HAYES: Taylor, in terms of one of the central facts that emerge from your
reporting, I had to read your piece several times for it to kind of click
for me, because I think you guys are very careful about not trying to get
out ahead of the facts.

But the implication it seems to me in that article is that, the person with
whom Jackie had the date himself was fabricated, that this was essentially
a photo taken off of social media of a person she went to high school with
and passed off as if that was the person she was having text messages with.

SHAPIRO: It`s not clear. The name that she gave, however, that she
purported was a student, we determined was not a student at the university,
according to university officials. And the photo that had circulated that
was alleged to be the person she was going on a date with was, in fact, one
of her former high school classmates who said that he hadn`t seen her or
had not been to
Charlottesville for six years and only knew her in high school and at that
didn`t even know her very well.

HAYES: Yeah, that I think was one of the more troubling details in that
reporting.

Caitlin Flanagan and Taylor Rees Shapiro, thank you both, appreciate it.

SHPAPIRO: Thank you.

FLANAGAN: Thank you.

SHAPIRO: That is ALL IN. "THE RACHEL MADDOW SHOW" starts now.



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