updated 11/17/2004 10:21:29 AM ET 2004-11-17T15:21:29

Guest: Richard Wolffe, Patrick O‘Malley

ALISON STEWART, MSNBC ANCHOR:  Which of these stories will you be talking about tomorrow?  Madam Secretary.  Condoleezza Rice is set to become the 66th secretary of state.  With Powell out and Rice moving up, is the administration taking a concerted stride to the right?  We‘ll ask Pat Buchanan.

The investigation in Fallujah.  Could a U.S. marine face criminal charges for the killing of an unarmed insurgent in a mosque? 

Congress retakes the Hill.  Arlen Specter tries to save his chairmanship.  A new senator will try to save the Dems.  And is anyone on Capitol Hill going to save us from the voting mess? 

And the grand pappy of all fast food sandwiches weighing in at 2/3 of one pound.  Better than 100 grams of fat from parts unknown.  The new monster thick burger.  All that and more on COUNTDOWN.

I‘m Alison Stewart in for Keith Olbermann.  The price of loyalty can often be high especially in politics.  But inside the Bush White House, such faithfulness appears to be paying dividends.  President Bush once again rewarding a trusted adviser by promoting her to his cabinet. 

Our fifth story on the COUNTDOWN, madam secretary.  The president unveils Condoleezza Rice as his choice for America‘s top diplomat as the nominee unveiled an often unseen emotional side.  At the White House today, the president made it official, naming National Security Adviser Dr.  Condoleezza Rice to succeed Colin Powell as secretary of state.  The sense of occasion not lost on Dr. Rice who actually got a little vaklempt (ph) when the president described her childhood in Birmingham, Alabama. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  She has seen freedom denied and freedom reborn.  As a girl in the segregated south, Dr. Rice saw the promise of America violated by racial discrimination and by the violence that comes from hate.  She was taught by her mother Angelina and her father, the Reverend John Rice, that human dignity is the gift of God.  And that the ideals of America would overcome oppression. 

(END VIDEO CLIP)

STEWART:  Dr. Rice described by some as a political version of a steel magnolia, regained her composure and took the podium.  There she thanked her pal the president and gave props to the diplomat she hopes to succeed at State. 

(BEGIN VIDEO CLIP)

DR. CONDOLEEZZA RICE, SECRETARY OF STATE NOMINEE:  I look forward with the consent of the Senate to pursuing your hopeful and ambitious agenda as secretary of state.  Mr. President, it is an honor to be asked to serve your administration and my country once again.  And it is humbling to imagine succeeding my dear friend and mentor, Colin Powell.  He is one of the finest public servants our nation has ever produced. 

(END VIDEO CLIP)

STEWART:  So we met the kinder, gentler Condoleezza Rice today.  But is that the side of her we can expect to see as secretary of state?  Here to help us answer that question, and what else we can divine from Dr.  Rice‘s resume, Richard Wolffe, Washington correspondent for “Newsweek” magazine.  Richard, good evening to you.

RICHARD WOLFFE, “NEWSWEEK”:  Good to be with you. 

STEWART:  What does Condoleezza Rice bring to the table as secretary of state?  What are her pros?  Let‘s start that column. 

WOLFFE:  She has the ear of the president.  That means she has some power that Colin Powell didn‘t have.  Powell was very popular around the world.  He was very popular in the State Department.  In some ways, he was more popular the more of a critic he was, the more isolated he was from the White House.  That won‘t a problem for Condoleezza Rice. 

STEWART:  In other words, Condoleezza Rice can pick up the telephone and talk directly to the president any time anywhere. 

WOLFFE:  She can.  And she really believes in some of these policies that he‘s been so strong in advocating especially spread of democracy through the Middle East and some of these great power relationships.  She thinks very hard and long about Russia, her original area of expertise, China.  These are the kinds of way that that President Bush speaks.  It is not surprising I think in the same way.  She was his tutor back in Austin on foreign policy when he was running for president the first time around. 

STEWART:  Let‘s talk about the con section.  When you talk about pros, you need to talk about cons.  What are they for Dr. Rice? 

WOLFFE:  Well, she got off to a pretty bad start diplomatically.  Right off the bat in the first Bush administration about, March, she had a meeting of the European ambassadors.  She talked about Kyoto, the protocol to reduce greenhouse gases.  And there she said Kyoto was dead.  That really got everything off to a bad start.  And it hasn‘t been forgotten in Europe.  So she has to prove herself diplomatically.  She also has to live up to the man she paid homage to today, Colin Powell.  Again, this is an exceptional, charismatic, great political figure.  And she‘s got to prove she has the kind of charms and skills that he had. 

STEWART:  You bring up an interesting point in terms of our relationships with Europe and the rest of the world.  Obviously her appointment, what world leaders are likely to be pleased by this appointment and what world leaders are likely to be dismayed at her new status? 

WOLFFE:  Well, Colin Powell did not have a great time dealing with the Middle East.  Not only because of the violence and the leadership problems over there but because it wasn‘t an area he felt comfortable with.  And those leaders, especially Ariel Sharon and Israel, dealt directly with the White House.  And so really, those—the leaders in that region should be happier.  They‘re used to Condi Rice.  They‘ve negotiated with her and there was a certain amount of disillusionment with Colin Powell.  Not just in Israel but in some of the Arab states as well.  So they‘ll be pleased. 

Europe won‘t know what to make of it.  But you know there‘s only one United States.  There‘s only one secretary of state and they‘ll have to go over it. 

STEWART:  Before I let you go, let‘s talk about Dr. Rice having to face confirmation hearings.  Senate Democrats already saying they plan to thoroughly vet her record.  Do you think we‘ll see a repeat of the tough grilling like she got during the 9/11 commissions about the pre-9/11 intelligence? 

WOLFFE:  Yes.  She‘s definitely get a tough grilling and that‘s also something that she‘s not used to.  She‘s been very much a behind-the-scenes player giving her advice in private to the president.  And she was uncomfortable, not just with the 9/11 grilling but also with the whole controversy over the yellow cake, the uranium from Niger that appeared in the State of the Union address.  She‘s going to have to have deal with some very partisan politics.  That‘s also something that Powell managed very well.  That‘s a big untested area for Condi Rice. 

STEWART:  “Newsweek‘s” Richard Wolffe.  Many thanks for sharing your thoughts. 

WOLFFE:  Thank you.

STEWART:  So if Rice replaces Powell, who replaces Rice?  True to form, the president once again promoting from within.  Deputy national security adviser Stephen Hadley now gets a shot at the top job.  He is described as a soft-spoken team player, comfortable working in the shadows of his powerful boss.  Even Hadley‘s appointment had someone else in the spotlight.  The president announcing his pick at the same ceremony as Dr.  Rice. 

And now that Colin Powell is leaving the State Department, one of his closest advisers and friends says he is not going to be sticking around either.  As expected, Deputy Secretary of State Richard Armitage handed in his resignation to the White House today.  It won‘t take effect until the administration‘s new chief diplomat is sworn in just like Powell‘s.  They came in together and they plan to leave together. 

In case you hadn‘t noticed, there is a pattern emerging in this cabinet shuffle so far.  The president taking trusted White House advisers and installing them somewhere else in Washington, D.C.  For more on the strategy and its significance, we are joined now by Pat Buchanan, Republican adviser to three presidents, now our very own political analyst.  He is also the author of the book “Where The Right Went Wrong.  How Neoconservatives Subverted the Reagan Revolution and Hijacked the Bush Presidency.” 

Pat joins us from Washington.  Nice to see you, Pat.

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  Hi, Alison.

STEWART:  Let‘s go down this list here.  We have Condoleezza Rice in the State Department.  From chief White House counsel Alberto Gonzales to Justice.  Domestic policy adviser Margaret Spelling in education.  She worked for the president, I think when he was back in Texas, right?  What‘s your reaction to this president‘s new clubhouse? 

BUCHANAN:  And Hadley is N.S.C.  The problem for me is, every single one of these individuals is a staffer.  They‘re loyal to the president, obviously, and they‘re staff workers.  None of them has an independent base or is an independent individual in the sense of Ashcroft, two-time governor, senator, Colin Powell, who was a supreme commander of American armed forces in the Gulf War.  They don‘t have anything like that.  The president seems to be putting people in place because they agree with him and they‘re loyal to him. 

My concern here is this is not a big powerful cabinet, if you will, of independent-minded men and women who can say no to the president.  You‘ve lost in Colin Powell and Armitage two of the most experienced men in the American government.  Between them, five tours of duty in Vietnam.  They‘ve served, I‘ll bet together, between them in the government, they must have 60 or 70 years.  I think the president has lost a very powerful voice of difference and dissent in his cabinet which happened to have been right on Iraq when they told him it would be a quagmire and I think Condi Rice and the Defense Department were wrong when they said it would be a cake walk. 

STEWART:  Aside from herself, the appointment of Condoleezza Rice, is a win for whom? 

BUCHANAN:  It is a win for the neoconservatives.  The neoconservatives in my judgment were wrong on Iraq but they are certainly winning the battles of the second term.  There‘s a purge going on at the Central Intelligence Agency.  We hear that the State Department‘s going to clean house from top to bottom.  So clearly, the neoconservatives who I think were in bad odor a couple months ago for having been responsible for what went wrong in Iraq seem to be winning all the bureaucratic battles at which they are quite good. 

STEWART:  So who loses out here, Pat?

BUCHANAN:  I think who loses out are the, who might be called the realists in foreign policy.  Those who believe in a Republican policy, of peace through strength, but a Colin Powell policy that we don‘t to go war with countries that have not attacked the United States.  It is a clean sweep.  And the president is entitled to do what he wants, appoint what he wants.  If I were him, I would want some people around me who were at my shoulders saying Mr. President, this might not be a good idea.  Those seem to be the people who are being moved out. 

STEWART:  It is always a pleasure.  MSNBC political analyst Pat Buchanan, thanks for being with us. 

BUCHANAN:  Thank you, Alison. 

STEWART:  For some on the right, the election hasn‘t been a big celebration on Capitol Hill.  Protesters showed up to greet Arlen Specter.  His place in the Judiciary Committee is in peril at the hands of some angry anti-abortion advocates.  Details to come.

In the new investigation in Fallujah it is now growing beyond the one insurgent shooting we told you about last night.  Some are saying this could be worse for the U.S. than Abu Ghraib. 

(COMMERCIAL BREAK)

STEWART:  OK, the provisional ballots were supposed to protect voters, but now some say they were a miserable failure.  Was it all the fault of Congress.  Yes, lets blame them.  The lame ducks are in session, there‘s plenty to talk about, stick around.

(COMMERCIAL BREAK)

STEWART:  The newly elected 109th Congress will convene for the first in January.  The Republican Party will enjoy the fruits of election day victory with a slightly widened majority in both houses.  But don‘t send in the moving vans just yet. 

Our fourth story on the COUNTDOWN, the kickoff of the 108th Congress‘s proverbial lame duck session.  So, don‘t let the name fool you, though, because past post election sessions have produced the Department of Homeland Security, and the impeachment of President Bill Clinton.  On the agenda for this one, what can best be described as house cleaning.  Committee leaderships, raising the federal debt limit, and the flu. 

So, how lame it will be? 

Here to help us go over the expected highlights of the 108th last waddle, “Congressional Quarterly” Columnist, and MSNBC analyst, Craig Crawford. 

Good evening, Craig. 

CRAIG CRAWFORD, “CONGRESSIONAL QUARTERLY:  Hi, Alison.  Good to see you in the evening. 

STEWART:  Yes, big a appearance on the hill today, Craig, Senator Kerry. 

How does he position himself now? 

CRAWFORD:  Well, he‘s already given some hints about 2008.  We heard from aid already from aides that he wanted to run again in 2008.  And he gave some interviews to local television in Massachusetts and kept the door open literally.  He said I‘m not closing the door.  I‘m not opening the door on 2008.  He has $45 million left over in a bank account from the primary campaign.  So, that‘s a bit of seed money. 

STEWART:  Was he welcome today? 

CRAWFORD:  Yes.  They gave him several standing ovations, I‘m told, in the private caucus of Democrats.  These were Democrats giving him the standing ovations.  And I think he was generally well received.  It is kind of hard to know what to do with a senator returning to the Senate, having lost the presidential campaign.  We actually haven‘t had that since George McGovern in ‘72.  A Senator actually returning to stay in the Senate after losing a presidential election. 

STEWART:  So, I guess a little bit of wait and see on that front.  Now the big power play to watch, Arlen Specter struggling to obtain chairmanship of the Judiciary Committee.  Let me set the stage, then I‘ll let you roll with it.  Seniority puts him in line for this.  Then he makes a comment about how successful or unsuccessful pro-life judicial nominees might be.  And now there are demonstrators on Capitol Hill against him. 

How does this get so big and what‘s next? 

CRAWFORD:  This is an old axe they‘re grinding.  The evangelical Christians remember when Arlen Specter opposed Robert Bork, Ronald Reagan‘s nominee to the Supreme Court that was so controversial.  He later supported Clarence Thomas, but that hasn‘t satisfied them.  And late word, Alison is out of the Hill, that the nose counting is that Specter may have enough votes to hold on to this seat.  But we‘re waiting for smoke signals from the White House to see which way they‘re going to blow on this.  And Senator Frist, the majority leader of the Senate, has not clearly supported him.  So, those are a couple big pieces still left for his puzzle. 

STEWART:  What does it mean if Arlen Specter does not get chairmanship because of this? 

CRAWFORD:  Oh, not a whole lot.  I think we forget about it for too long.  We‘ve seen a lot of heads cut off in Republican circles.  Trent Lott was majority leader of the Senate and was ousted over his statements about Senator Thurmond.  Although, it wasn‘t really about that, I never thought.  It‘s when Trent Lott earlier had said he wasn‘t going to support, necessarily, some of the president‘s agenda early in the president‘s term.  I think that was his crime, actually. 

And Specter did something similar to that, but not quite as strong, I don‘t think, in the comments that he made about not accepting some of the justices. 

STEWART:  Before I let you go, a couple loose ends still out there, one of the biggies, provisional ballots.  They were a creation of this Congress. 

Will they fix what the system that proved to be pretty troublesome? 

CRAWFORD:  They didn‘t work.  And so, there‘s a lot of talk about reforming the reform.  We see that a lot.  This is the problem.  Provisional ballots, the teeth was taken out when the secretary of state in Ohio, for example, went to court to get a ruling that if you show up at the wrong precinct and cast a provisional ballot, if you‘re not registered in that precinct, then it won‘t count.  Well, part of the reason for provisional ballots was to help voters get their votes counted if they do show up at the wrong precinct.  So, that took some teeth out of it. 

STEWART:  The “Congressional Quarterly‘s” Craig Crawford, a generally smart guy, thanks for your time. 

CRAWFORD:  Good to talk to you.

STEWART:  Images of the Virgin Mary have appeared in windows, on buildings and all sorts of places.  But This Is a new one, on a grilled cheese.  This faithful know this means “Oddball” is almost upon us. 

And it‘s not holy but you might need divine intervention to get this thing down.  The battle of the bulge takes an ugly turn with the unveiling of the monster thick burger. 

(COMMERCIAL BREAK)

STEWART:  I‘m Alison Stewart, holding down the fort for Keith Olbermann, and it‘s time to pause the COUNTDOWN of the day‘s real news for a quick check in with the day‘s unreal news.  Let‘s play “Oddball.”

We begin in Hollywood, Florida, where the owner of this grilled cheese sandwich says she truly believes it contains the likeness and spirit of the holy Virgin Mary.  And so she‘s doing what any faithful would do—she‘s selling it on Ebay.

Quote: “I made the sandwich 10 years ago,” says the seller, and, quote, “when I took a bite of it, I saw the Virgin Mary staring back at me.”  Luckily, she bit into the non-holy end.  The sandwich is preserved in its original condition, sealed in plastic, and after Ebay first took the auction down thinking it was a joke, it is back with a current bidding up to $99 million.  That‘s the joke. 

Elsewhere in Florida, animal control officers have been earning their paychecks this week apprehending a runaway kangaroo and a tan and black goat in Port Saint Lucy.  The goat and the kangaroo appeared to be traveling together, but nobody is talking.  And officials have no idea who they belong to. 

The 60-pound red kangaroo appeared well fed and healthy, and is wearing a leather collar.  Police have released a full description of the animal, hoping the owner will claim him.  But really, how many missing kangaroos could there be in Port Saint Lucy, Florida? 

Not as many as there are rabbits in Providence, Rhode Island, my old stomping ground.  Fifteen thousand of them have gathered here in the Providence Convention Center for the 82nd American Rabbit Breeders National Convention.  They need a convention for that?  It‘s best in show for bunnies.  The biggest event of the year in rabbit breeding circles.  And if you ever found yourself in a rabbit breeding circle, run for your life. 

Judges will be handing out awards all week in various categories. 

Guinea pigs apparently are welcome too, as are cavies, but no hamsters. 

All visitors will be searched at the door for hamsters. 

From lemonade to legacy, a story of one girl‘s determination to make a big difference for kids trying to beat cancer.  And “Flashpoint: Fallujah,” the investigation into the insurgent shooting is growing.  Could more than one Marine be facing charges now?  Those stories are ahead. 

Now, here‘s COUNTDOWN‘ “Top 3 Newsmakers” of the day. 

No. 3. Gene Sukie, the 78-year-old Ohio man who collected 1.4 million pennies over 34 years, 10,000 pounds of them, only to find he was unable to cash them in anywhere.  Now a company that makes coin counting machines has agreed to take them off his hands and give him the paper money equivalent, $6.37.  No, it‘s over $14,000. 

No. 2, Andrew McClure Johnson of Boulder, Colorado.  He‘s been arrested for felony obscenity and says he sincerely regrets the October 31st incident when he allegedly handed out pornographic DVDs to Halloween trick or treaters. 

And No. 1, the unidentified man now under psychiatric evaluation in a New York hospital in New York.  Police say the man entered the World of Darkness exhibit at the Bronx Zoo in the middle of the afternoon Friday, stripped naked, and jumped into a pool of carnivorous reptiles.  And he was uninjured.  But the reptiles are still a little shaken up about the whole thing. 

(COMMERCIAL BREAK)

STEWART:  Welcome back to COUNTDOWN.  I‘m Alison Stewart.  Keith Olbermann is on holiday all week.

At No. 3 tonight, the expanding investigation into what exactly happened inside of Falluja mosque last weekend.  The military inquiry is still in the preliminary stages, with investigators now examining the possibility of at least one, possibly more illegal killings of unarmed insurgents.

But, as our Pentagon correspondent Jim Miklaszewski reports, there may also be a strong defense. 

(BEGIN VIDEOTAPE)

JIM MIKLASZEWSKI, NBC PENTAGON CORRESPONDENT (voice-over):  These powerful images captured by an captured by a NBC camera have drawn worldwide attention to the constant confusion, perils and horrors of combat in Iraq. 

The question tonight, did the Marine who shot and killed an apparently unarmed insurgent in this Fallujah mosque believe he was firing in self-defense?  Only the day before the same Marine had been shot and wounded in the face, but was quickly treated and returned to the fight.  And a block away from the mosque, one Marine was killed and five others wounded by a booby-trapped bomb planted in the body of a dead insurgent. 

And earlier in this mission, the very mosque had been used as a safe haven for insurgents firing on Marines.  And when it was entered, a large stockpile of weapons was found.  It‘s the kind of intense combat that has everyone on razor‘s edge. 

RET. GEN. BARRY MCCAFFREY, NBC MILITARY ANALYST:  You know, I‘ve been a lieutenant and a captain as an infantry platoon leader, rifle company commander.  This is tough business.  Those Marines are going into the buildings not to arrest people or detain them, but to kill them. 

MIKLASZEWSKI:  Military legal experts claim that uncertain nature of urban combat could be grounds for a defense in any possible trial. 

EUGENE FIDELL, MILITARY LAW EXPERT:  If there was a pattern of booby-trapping bodies, I imagine that the defense would be able to bring that in.  And it might be quite compelling testimony. 

MIKLASZEWSKI (on camera):  But the investigation is apparently widening.  NBC News has learned that military investigators are looking into the possibility that more than one wounded insurgent was shot in the mosque. 

(voice-over):  Investigators will review the news videotapes that documented what went on here.  As one spot of Marines approached, gunshots were heard inside the mosque.  Another squad of Marines had already entered and found the insurgents.  Back outside, they were questioned about their actions. 

UNIDENTIFIED MALE:  Did you shoot them? 

(CROSSTALK)    

UNIDENTIFIED MALE:  Did they have any weapons on them? 

MIKLASZEWSKI:  Once in the mosque, NBC‘s Kevin Sites, embedded with the Marines, focused his camera on two insurgents who appeared to be suffering from fresh and fatal gunshot wounds.  Then suddenly, a Marine off camera, shouts that another insurgent is playing dead. 

UNIDENTIFIED MALE:  He‘s (EXPLETIVE DELETED) faking he‘s dead. 

UNIDENTIFIED MALE:  Yes, he‘s breathing. 

UNIDENTIFIED MALE:  He‘s faking he‘s (EXPLETIVE DELETED) dead.

MIKLASZEWSKI:  In a scene too graphic to broadcast, the Marine raises his rifle and shoots the apparently unarmed man in the head. 

The Marine on camera is then heard to say what sounds like, “He‘s dead now.”  Military officials say this incident is not representative of the overall Marine engagement in Fallujah and point out the military was swift to act on the reports.  It shows that sometimes in what is known as the fog of war what happens and what is captured on videotape can be difficult to understand. 

Jim Miklaszewski, NBC News, the Pentagon. 

(END VIDEOTAPE)

STEWART:  I am joined now by retired U.S. Army General Montgomery Meigs, who formerly served in Operation Desert Storm and as commander of the stabilization force in Bosnia-Herzegovina.

General, if investigators do find evidence that other unarmed insurgents were shot at inside that mosque off camera, does this indicate a bigger problem than just one lone Marine? 

RET. GEN. MONTGOMERY MEIGS, NBC MILITARY ANALYST:  Well, certainly, you would have more charges and that would be a series of courts-martial, if the appropriate commander takes it to that, which, if there are findings of that kind of a situation, I suspect he would. 

But, remember, we still don‘t have the facts.  We still don‘t know really what happened, other than what we saw on that tape. 

(CROSSTALK)

MEIGS:  Go ahead. 

STEWART:  Sir, please finish. 

MEIGS:  As Jim Miklaszewski pointed out, the key legal issue here will be what did that young Marine or what did the Marines, as they came in, see and did they perceive that they were threatened.

STEWART:  Let‘s take a look at some of the facts that we do know, a bit little of the backstory.  This Marine in question was sent back into battle just one day after he was shot in the face.  Now, who would make the decision to send the Marine back in and was it the correct decision? 

MEIGS:  Well, it‘s hard to second-guess. 

First of all, the Marine may have asked to go back and be with his squad mates.  Secondly, look, if you‘re wounded in combat and it is a scratch or a wound that‘s not debilitating, you go back online.  That‘s part of the game. 

STEWART:  Without sounding too touchy-feely about this, isn‘t there recovery time needed for someone who experiences something like that in terms of what‘s going on in their head? 

MEIGS:  Well, it depends on the wound.  And, obviously, the chain of command is going to look at the status of the soldier, whether they think he can persist or not. 

But there is a tremendous pressure to get back online with your squad mates.  That‘s a factor in all this.  And if the soldier is not seriously really injured, even badly injured, the tendency is to have him go back online.  They‘re trained for that. 

STEWART:  Well, let‘s talk about a bottom-line question.  What could make a shooting like this justified, what series of events? 

MEIGS:  I hate to do hypotheticals on things like this. 

But if there was some kind of action taken by that wounded person who, as the report points out, was under a blanket, that indicated to that soldier that something was about to happen that would put him and/or his squad mates at risk, then he could possibly use lethal force with—and inside the rules engagement and not have committed a crime. 

STEWART:  There are also some new concerns that this action might make insurgents less likely to surrender, perhaps more likely to fight to the death.  What do you think about that argument? 

MEIGS:  I don‘t put much stock in that.  The coalition—the latest number I‘ve seen on surrendered and captured peoples is up over 1,000, around 1,050.  The people who want to die for their cause are going to do that anyway. 

However, in these types of situations, you get to a point where individuals know the game is over and they give themselves up and they‘re in kind of a daze.  So I think that stage is already set and the people that want to die for their cause are going to do it anyway. 

STEWART:  Retired U.S. Army General Montgomery Meigs, many thanks for sharing your insights and your experience with us tonight.  We appreciate it very much. 

MEIGS:  Good to be with you, Alison.

For a closer look at the legal ramification of what happened in that Fallujah mosque, we‘re joined by Judge Advocate General Captain Patrick O‘Malley. 

Thank you so much for spending some time to walk us through this legal process here.

PATRICK O‘MALLEY, JUDGE ADVOCATE GENERAL ATTORNEY:  Thank you, Alison, for having me.

STEWART:  Now, this Marine has been pulled from the field.  What happens now? 

O‘MALLEY:  At this point, as you said before, an investigation will ensue, an impartial and thorough investigation, as General Sattler pledged today. 

At that point, that will be headed by either someone that the commander appoints, an officer, or an entity toward such as Naval Criminal Investigation Services. 

STEWART:  Now, what charges might this man face if they find evidence of misconduct? 

O‘MALLEY:  Well, just like General Meigs, I‘m loathe to talk about hypotheticals.  But we do have a killing here. 

I would imagine—and, again, I should caution all of your viewers who are watching basic cable in the comfort of their home tonight, it could be that this Marine returns to his unit next week.  We don‘t know.  I‘m not there.  You‘re not there.  It could be that nothing at all happens. 

Having said that, to answer your question, there are a variety of charges.  Contained in the books are charges like murder.  Also, manslaughter is there as well. 

STEWART:  And, sir, we appreciate you taking care with your words.  We understand. 

O‘MALLEY:  Certainly.

STEWART:  Now, the act took place in a mosque.  Does the location, in a place of worship, affect this case at all? 

O‘MALLEY:  Not really. 

The people with some familiarity with the law of war will know that places of worship and mosques are protected places.  However, the law of war is not a static law.  And the rules are not static.  When these people choose to fire at us from a mosque, from a protected place, that place loses its protection.  The best example is probably when the Germans occupied Monte Casino in 1943.  Eventually, the American Army had to take out Monte Casino, even though it was 800 years old. 

STEWART:  And in terms of the kind of legal arguments you might expect from this gentleman‘s lawyer, what might he put forward?  What‘s the best argument he can come up with? 

O‘MALLEY:  Well, the best one is probably obvious to all of us.  And that is self-defense.  Self-defense is always on the table in the law of war.  And it is always part of the rules of engagement. 

You‘re talking about a Marine who is fighting an enemy who uses white flags and then fires at us while using those white flags.  You‘re talking about an enemy that uses civilians as human shields.  You‘re talking about an enemy whose weapon of choice is a suicide car bomb.  Certainly, the perception of a threat from someone like that who is fighting in those circumstances is going to be much higher than it would be coming from a soldier in a conventional war. 

One of your guests earlier said that this Marine had seen fellow Marines killed when another insurgent who was wounded was booby-trapped.  And, certainly, in that kind of—as I said, the rules are not static.  If that is what that Marine is dealing with, you have to look at his apprehension of a threat of death or grievous harm to himself and his fellow Marines when you put yourself in his shoes and try to hypothetically see what he was doing in that split-second decision. 

STEWART:  And one final question for you.  Will it make a difference in the prosecution if this dead insurgent was technically a U.S. prisoner or not? 

O‘MALLEY:  I don‘t believe so, Alison.

I think, again, that‘s going to be a question of fact that I‘m sure the investigators will look at before this proceeds to any kind of full hearing or doesn‘t proceed to a full hearing and this Marine is returned to his unit. 

STEWART:  Judge Advocate General officer, Captain Patrick O‘Malley, thank you so much for sharing your expertise and your care of words.  We appreciate it. 

O‘MALLEY:  Thank you, Alison.

STEWART:  Elsewhere in Iraq, a new level of atrocity committed by militants, the execution of a female hostage, Margaret Hassan.  A British-born humanitarian aid worker who worked in Iraq for more than 30 years has apparently been murdered by her kidnappers. 

Al-Jazeera received a video showing a militant shooting a blindfolded woman in the head.  And although the evidence is not conclusive, the British government and her family believe the woman was Margaret Hassan.  She was kidnapped in Baghdad in mid-October on her way to work.  Her captors never identified themselves, but demanded release of female prisoners and the withdrawal of British troops. 

Today, Margaret Hassan‘s Iraqi husband asked her killers to return her body to him so she can rest in peace. 

Back here at home, an inspirational story from one small girl.  She defied all the odds set by her doctors.  And even though she lost her battle with cancer, she is still helping others.  And can somebody please get Anna Nicole some help?  Somebody?  Anybody?  Bueller?  You saw the on-stage train wreck.  Now we‘ll show you the ones backstage. 

Now here are COUNTDOWN‘s top three sound bites of the day. 

(BEGIN VIDEOTAPE)

SEN. FRITZ HOLLINGS (D), SOUTH CAROLINA:  We‘ve got a way better group of senators.  We had, Senator, five drunks or six drunks when I came here.  We had one woman, she was outstanding.  Now we‘ve got 15 or 17, and you can‘t shut them up. 

UNIDENTIFIED MALE:  Ten, nine, eight, seven, six, five, four, three, two, one, fire!

(BEGIN VIDEO CLIP, “THE TONIGHT SHOW WITH JAY LENO”)

ANNA NICOLE SMITH, ACTRESS:  I want this guy to produce my—make me beautiful duet.

JAY LENO, HOST:  Well, did you see how they finally got her off stage last night?  Show the...

SMITH:  Because he is freaking genius!

(END VIDEO CLIP)

(END VIDEOTAPE) 

(COMMERCIAL BREAK)

STEWART:  A little girl‘s legacy lives on in her fight to help kids with cancer.  And America‘s waistline war.  The bunker buster of all burgers explodes on the scene.

(COMMERCIAL BREAK)

STEWART:  Every now and then, there‘s an opportunity to take cynicism and put it away.  And it‘s good to seize on these opportunities.

Our No. 2 story on the COUNTDOWN tonight, the determination of one becomes the inspiration of many.  A girl named Alexandra Scott was diagnosed with cancer before she could even form a sentence.  She learned how to battle her illness and decided to raise money for cancer research. 

COUNTDOWN‘s Monica Novotny joins with us now with the story of how Alexandra raised all that money. 

MONICA NOVOTNY, NBC CORRESPONDENT:  Alison, good evening. 

Alexandra Scott spent most of her young life battling cancer and working for a cure.  Now, three and a half months after her death, Alex‘s goal of raising $1 million for children‘s cancer research has been reached.  And though family, friends and even corporate sponsors stepped in to help, this story is really all about one small girl with a very big idea. 

(BEGIN VIDEOTAPE)

LIZ SCOTT, MOTHER OF ALEXANDRA:  I think Alex stood for the incredible strength of the human spirit. 

NOVOTNY (voice-over):  She had a smile for the future and an old-fashioned idea, raising money for pediatric cancer research by selling lemonade, at 50 cents a cup, a small price to pay for a piece of Alexandra Scott‘s million-dollar dream. 

L. SCOTT:  She took on this great big cause with the simple idea of a lemonade stand, which is so childlike, but yet so genius, really, at the same time. 

ALEXANDRA SCOTT, CANCER PATIENT:  Like right there.

NOVOTNY:  Her own struggle with cancer began just before her first birthday.  Doctors diagnosed Alex with neuroblastoma, an aggressive childhood cancer.  Even then, she was already determined to break all the rules.  When the doctors said Alex would never walk, she did.  When they said she couldn‘t fight it very long, she did.  And when people thought she would raise a few dollars at her lemonade stand, she made a million. 

JAY SCOTT, FATHER OF ALEXANDRA:  And she was just so determined.  When she put her mind to something, she would do it. 

NOVOTNY:  It started when Alex set up her first stand.  She was 4 years old. 

L. SCOTT:  She had already been battling cancer for a few years.  So she knew that the treatments weren‘t working, basically.  And she said she was going to take the money she earned from her lemonade stand and donate it to her hospital to help the doctors find a cure. 

NOVOTNY:  Her idea spread, with front-yard stands popping up across the country, all raising money for Alex‘s foundation. 

A. SCOTT:  Who wants lemonade?

NOVOTNY:  That first year, Alex raised $2,000, three years later, $200,000.  Soon, all that lemonade put Alex in the limelight, where she dared to dream even bigger. 

MATT LAUER, CO-HOST, “THE TODAY SHOW”:  You want to raise $1 million for pediatric cancer research.  How hard do you think that is going to be? 

L. SCOTT:  I don‘t know.  But I think if enough people help with donations and buy the lemonade stands, that I think we can do it. 

NOVOTNY:  This summer, with more stands than ever, Alex‘s spirit grew louder than her words. 

LAUER:  Alex, will you come back next year when you can show me the million dollars and you can set up a lemonade stand for us here on the plaza again? 

L. SCOTT:  Yes, hopefully. 

NOVOTNY:  But Alex passed away on August 1.  She was surrounded by her family.  Last week, her foundation hit the million-dollar mark.  And that, it turns out, is just the beginning. 

J. SCOTT:  We asked her what her goal would be for next year.  And she first said it was going to be a gazillion.  And then her brother told her, you know, that‘s not a real number.  And she knew it.  She was just joking around.  She said, OK, then it‘s going to be $5 million. 

NOVOTNY:  And so $5 million it is. 

L. SCOTT:  Alex has really taught us a lot about being determined and believing in yourself. 

J. SCOTT:  She refused to give up.  And that is just a great thing to have that she left us. 

NOVOTNY:  That and so much more. 

L. SCOTT:  I feel lucky in many ways.  And I always have, especially being lucky enough to be a mother to Alex, who I feel was definitely a gift to me. 

(END VIDEOTAPE)

NOVOTNY:  Though the cancer she fought ultimately overcame her body, her mother says Alex did not lose anything, certainly not her battle with cancer.  The fund-raising and ultimately the research will prove that in fact Alex won. 

Now, plans are already under way for a nationwide weekend-long fund-raising effort.  That will be next June, the 10th through the 12th.  Don‘t be surprised if you see lemonade stands in your neighborhood. 

Now, for more information on Alex‘s foundation, you can go to our Web site at COUNTDOWN@NBC.com

STEWART:  Monica, such a great story.  You‘re going to make me cry here. 

One of the interesting things you said in this story is, during that appearance on “The Today Show,” that Alex had just gone through chemo.  Is that what happened? 

NOVOTNY:  That‘s right.  Her mom was telling me that she had actually completed a round and that her throat was actually burned still, and no one really thought that she should make the appearance.  They thought she just was not well enough.  But Alex was absolutely determined.

They said, as always, she knew it was important.  She certainly knew that she would get her message out to many people on “The Today Show.”  And so she was determined to do it. 

STEWART:  OK, so folks should visit our Web site, COUNTDOWN, if they want to help Alex‘s cause. 

NOVOTNY:  That‘s right.  There‘s a link to their site there. 

STEWART:  Terrific.  Monica Novotny, thank you so much. 

NOVOTNY:  Thanks. 

STEWART:  We make the transition now to the entertainment stories of “Keeping Tabs,” beginning with a ruckus at last night‘s Vibe Awards. 

And police today are searching for a man suspected in a stabbing during this brawl at the hip-hop and R&B awards show taping in Santa Monica, California.  The fighting began as elder statesman Quincy Jones and hip-hop artist Snoop Dogg were presenting an award to rapper/producer Dr.  Dre.  Now, the throw-down lasted for five or six minutes before police were able to bring the situation under control.  The victim is listed in stable condition. 

And speaking of award show disturbances, there‘s Anna Nicole Smith.  Though her appearance at the American Music Awards Sunday night may have been just as disturbing, the buzz continues about the buxom blonde‘s medical-assisted weight loss, not to mention her medication-assisted performance at the podium, we think.  “Access Hollywood” caught up with the still loopy model backstage and found she is obviously a subscriber to the belief that any pub is good pub. 

(BEGIN VIDEO CLIP, “ACCESS HOLLYWOOD”)

ANNA NICOLE SMITH, ACTRESS: They just tell me how pretty I am, and how good I look, and how good I did.  And, course, Trim Spa helps me out a lot. 

UNIDENTIFIED FEMALE:  Of course. 

SMITH:  Because I used to be a big, fat hog. 

(END VIDEO CLIP)

STEWART:  It‘s just so confusing. 

The new devil of the drive-through, the beast of burgers.  As America tries to slim down, will the new Monster Thickburger find a market? 

(COMMERCIAL BREAK)

STEWART:  OK, here‘s a new flash for you, two diet reports out today.

Study No. 1, dieters who want to keep off the weight they have already lost should forget the low carb diets.  Stick with the low fat diet.  A far less obvious study finds that people who get more sleep are less likely to become obese.

This leads us to our No. 1 story on the COUNTDOWN tonight.  We have a nightmare for you to meet, all you dieters out there.  Monster Thickburger, Hardee‘s shameless reinvention of its original Monster burger.  This edition has two slabs of beef one-third pound each, four strips of bacon, three slices of American cheese, just 107 grams of fat, and 1,420 calories.  This deserves investigation. 

Here‘s Kevin Tibbles.

(BEGIN VIDEOTAPE)

KEVIN TIBBLES, NBC CORRESPONDENT (voice-over):  In the beginning, there was simply the burger and the bun. 

(BEGIN VIDEO CLIP, AD)

UNIDENTIFIED ACTOR:  Do you ever wonder why Burger Chef hamburgers taste better? 

(END VIDEO CLIP)

TIBBLES:  But with competition, things got complicated.  Now Hardee‘s has thrown down the burger gauntlet, serving what it calls the $5.49 monument to decadence, the Monster Thickburger. 

Here‘s how they build it, two-thirds of a pound of beef, 665 calories, three slices of cheese, 186 calories, four pieces of bacon, 150, mayonnaise, 160, butter, 30, and a bun, 230, a massive 1,420 calories with 107 grams of fat. 

ANDY PUZDER, CEO, CKE RESTAURANT INC.:  If you are the romaine lettuce, raspberry vinaigrette crowd, this is not your burger. 

TIBBLES:  Compared to other burgers on the block, the Monster has got twice as many calories as McDonald‘s Double-Quarter Pounder with cheese.  Wendy‘s Classic Triple is a lightweight, with only 940 calories.  And Burger King‘s Double Whopper with cheese falls short with just over 1,000.

(on camera):  Just one Monster Thickburger carries near the half calories recommended daily for teens and adults.  And if you are a sedentary woman, it‘s almost your entire daily allotment. 

MICHAEL JACOBSON, CENTER FOR SCIENCE IN THE PUBLIC INTEREST:  This is a heart attack in a bun. 

TIBBLES:  Michael Jacobson of the Center For Science in the Public Interest, bites back. 

JACOBSON:  These Thickburgers are quintessential food porn, just oozing with artery-clogging fat. 

(BEGIN VIDEO CLIP, “SATURDAY NIGHT LIVE”)   

JOHN BELUSHI, ACTOR:  Cheeseburger, cheeseburger, cheeseburger.

(END VIDEO CLIP)

TIBBLES:  Still, Americans love their burgers.  And today, in Billy Goat‘s, the Chicago diner that inspired the “Saturday Night Live” sketch, they were lined up as always. 

UNIDENTIFIED MALE:  Double cheese.

TIBBLES:  Food analysts say Hardee‘s is simply giving a niche market what it wants.  Customers at this Saint Louis Hardee‘s today rated the Monster. 

UNIDENTIFIED MALE:  It‘s truly the monster burger.  It‘s delicious. 

UNIDENTIFIED MALE:  It looks like it‘s too much for me. 

TIBBLES:  So will this new SUV of burgers stick around or supersize itself out of the market? 

Kevin Tibbles, NBC News, Chicago.

(END VIDEOTAPE)

STEWART:  Food porn, best phrase of the night. 

That‘s it for this monster edition of COUNTDOWN.  Thanks for watching. 

I will see you back here tomorrow night.  Be safe.

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

END   

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