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'The Rachel Maddow Show'for Thursday, May 7, 2009

Read the transcript to the Thursday show

Guest: Daniel Choi, Joe Sestak, Welton Gaddy, Jonathan Turley, Kent Jones

RACHEL MADDOW, HOST:  And thank you for staying with us for the next hour.

Coming up in just a moment, as Keith said, we will be speaking with the man who is being kicked out of the U.S. Army for something that he said on this show.  Congressman Joe Sestak of Pennsylvania will also be joining.

And we‘ll be joined live by Dodger slugger Manny Ramirez to talk about his 50-game suspension for failing a—I‘m sorry, I‘ve just been informed that the conversation with Mr. Ramirez will actually only be taking place in my mind—over and over and over again.

On the actual show tonight, though, we begin with two major developments surrounding one of the most controversial, long-thought-over policies of the United States government.  It is the “don‘t ask, don‘t tell” policy.

Conceived in 1993 by the Clinton administration, gay military personnel are technically allowed to serve their country but only if they lie about their sexual orientation.  Disclosing that you‘re gay, saying it, counts as homosexual conduct, and is grounds for dismissal.

It is the enunciated policy of the Obama administration that “don‘t ask, don‘t tell” is wrong and it should be repealed.  Exactly when President Obama will take any sort of action to back up that position remains to be seen.

Tonight, there is brand-new news, tangible evidence of President Obama‘s personal stance on the issue.  This past January, U.S. Army 2nd Lieutenant Sandy Tsao announced to her military chain of command that she is gay.  On the same day that she violated “don‘t ask, don‘t tell,” she wrote a letter to the White House, urging President Obama to repeal the ban and expressing to him her fear that she would be kicked out of the military as a result of her decision to come out.

This week, President Obama personally responded to Lieutenant Tsao‘s letter with a handwritten note of his own.  It reads, quote, “Sandy, thanks for the wonderful and thoughtful letter.  It is because of outstanding Americans like you that I committed to changing our current policy.  Although it will take some time to complete, partly because it needs congressional action, I intend to fulfill my commitment.”  And it is signed “Barack Obama.”

Personal commitment from the president or not, Lieutenant Tsao‘s career has just been ended.  She has been informed that she‘ll be discharged from the military as of May 19th.

Over the past 15 years, “don‘t ask, don‘t tell” has led to the dismissal of around 12,500 members of the United States armed forces, and as of right now, it is still U.S. law under commander in chief Barack Obama. 

On March 19th on this program, I interviewed U.S. Army Lieutenant Daniel Choi.  Lieutenant Choi is a West Point grad.  He‘s an Iraq combat veteran.  He‘s an Arabic language specialist, and he is the founding member of the organization Knights Out, which is a group of West Point grads who have announced that they are gay or lesbian. 

Lieutenant Choi is now in the National Guard.  Here is what he told this program on March 19th


CHOI:  I am an infantry platoon leader in the New York Army National Guard, and by saying three words to you today—I am gay—those three words are a violation of Title X of the U.S. Code. 


MADDOW:  This week, those three words cost Dan Choi his military career as well.  He has received a letter from the U.S. Army informing him that he is being dismissed, it says, in part, quote, “this is to inform you that sufficient basis exists to initiate action for withdrawal of federal recognition in the Army National Guard for moral or professional dereliction.  Specifically, you admitted publicly that you are a homosexual, which constitutes homosexual conduct.  Your actions negatively affected the good order and discipline of the New York Army National Guard.” 

Joining us now for his first interview since being informed of his dismissal is U.S. Army 1st Lieutenant Daniel Choi.  Lieutenant Choi, thank you so much for coming back on the show.  Good to see you.

CHOI:  Good to see you face to face, yes. 

MADDOW:  You knew there was a very good possibility that by coming out publicly on this show, you would get kicked out of the military.  But I have to ask what your reaction was when you actually got the letter this week. 

CHOI:  Well, when I got the letter, I was extremely angry.  I was angry—I mean, the letter is basically saying bottom line, Lieutenant Dan Choi, you‘re fired.  You‘re a West Point graduate, you‘re fired.  You‘re an Arabic linguist, you‘re fired.  You deployed to Iraq, you‘re willing to deploy again, doesn‘t matter.  Because you‘re gay, that‘s enough grounds to kick you out. 

But the biggest thing that I‘m angry about is what it says about my unit.  It says that my unit suffered negative good order—negative actions—good order and discipline suffered.  That‘s a big insult to my unit. 

I mean, all the insult that the letter can do, to say that I‘m worthy of being fired, you know, that‘s nothing comparing to saying that my unit is not professional enough, that my unit does not deserve to have a leader that is willing to deploy, that has skills to contribute. 

MADDOW:  In terms of the good order and discipline allegation, what has been the reaction that you got from your fellow troops, from your unit after you told them that you are gay?  Was there upset, was there discord?  Were there any negative consequences to your ability to function as a group? 

CHOI:  Two weeks after I appeared on the show, we had National Guard training.  Basically, we went to marksmanship qualification.  We shot our rifles.  And I was leading some of the training as officer in charge, telling them to cease fire or fire, and I thought, for four days, nobody was saying anything, so maybe they don‘t watch TV or maybe they don‘t read the “Army Times.”  But at the end of the training, so many people came up to me, my peers, my subordinates, people that outranked me, folks that have been in the Army—and this is an infantry unit, infantry men that—coming up to me and saying, hey, sir, hey, Lieutenant Choi, we know, and we don‘t care.  What we care about is that you can contribute to the team.  And what leaders do, they look to see how can they make the best team before they go to war.  That‘s what they care about. 

MADDOW:  Dan, what recourse do you have?  Do you plan to challenge this? 

CHOI:  Well, the letter says that I can basically do a couple of things.  I can resign right now and get an honorable discharge, or I can fight it. 

I intend fully to fight it tooth and nail.  I believe that “don‘t ask, don‘t tell” is wrong, and what we really need to be encouraging soldiers to do is to don‘t lie, don‘t hide, don‘t discriminate, and don‘t weaken the military.  That‘s what we need to be promoting. 

MADDOW:  Lieutenant Dan Choi, stay with us just for a moment.  I want to bring into the conversation Congressman Joe Sestak.  He‘s a Democrat from Pennsylvania.  He‘s a retired U.S. Navy rear admiral.  He‘s the highest-ranking former military officer to serve in Congress.  Congressman Sestak, thank you so much for joining us tonight. 

SESTAK:  It‘s good to be here, Rachel. 

MADDOW:  What is your reaction to Lieutenant Choi‘s impending dismissal from the Army as a result of “don‘t ask, don‘t tell?”

SESTAK:  First, Lieutenant, thanks for your service to our nation.  And I think this is indicative of the kind of quality of man and woman that we have lost. 

Look, I went to war, and we knew by survey that when I went to war that we had a certain percentage in that carrier battle group, and when I was on the ground briefly in Afghanistan, that were gay.  And now we come back to America and say they don‘t have equal rights. 

I‘ve never understood it.  This is something where we have to correct this.  It‘s just not right. 

I can remember being out there in command, and someone would come up to you and start to tell you—and you just want to say, no, I don‘t want to lose you, you‘re too good. 

Congress, with this president, needs to act upon this.  I have appreciated that the president is rightly focused on economic security and now with this budget, but I believe this summer or early this fall that we need to correct this. 

MADDOW:  When the president says, Admiral Sestak, when he says that it could be slow going in part because it has to move through Congress—and again, we know this because he wrote it in a handwritten letter to somebody who is currently being kicked out of the military, as Lieutenant Choi is—he‘s essentially saying that Congress will be part of the reason that this needs to go slow.  But you‘re saying that this could actually happen quite quickly. 

SESTAK:  I think it could, yes.  I think the president as commander in chief needs to be the one that says to the military—and I understand what Secretary Gates said recently about the plate is kind of full—that‘s not the Defense Department‘s decision.  This is the commander in chief‘s decision to say we need to change it, which he has. 

I‘d like to see us move it by this summer, and I think we can.  We had hearings a year ago, and I‘m a co-sponsor of the bill, and I testified at it.  But we never got it out of committee. 

But I honestly believe with this particular president—let‘s just

re-emphasize that everyone, everyone is created equal. 

MADDOW:  Do you think, Congressman Sestak, do you think that as an interim step, if it can‘t be done by the summer, if it can‘t be done some time soon for some reason, do you think that the president could order the military to stop investigating whether people are gay?  Just stop implementing the policy for now until it can be reviewed, until Congress has a chance to decide if they‘re going to act on the matter?  Would that be wise? 

SESTAK:  I‘m not sure.  The reason I say this is we are a nation of laws.  And in this last administration, we saw executive actions that seemed to bend, if not break, those laws.  And even though it‘s for the right reason right now, I‘d like to see us take this on right now, begin the process. 

And I know there‘s several of us veterans here—Patrick Murphy, Eric Massa, myself, you know, warriors, veterans, like the lieutenant, that want to, as Ellen Tauscher, who is the primary mover of this, goes off to the State Department, that we can pick it up as co-sponsors, and hopefully rapidly move it.  If it‘s a law, I think we should do it by due process. 

It‘s not that I don‘t want the president to do it the other way, but, you know, the last lessons that we‘ve learned the last eight years, let‘s do it, and we should be doing it. 

MADDOW:  Congressman Sestak, since we have you on, I would be remiss if I did not ask you if you have made a decision yet on whether to challenge Arlen Specter for the Democratic Senate seat in Pennsylvania. 

I should say that on the subject, we tried all day today to try to verify Senator Specter‘s position on “don‘t ask, don‘t tell,” and were not able to get any sort of explanation from him of his position on that subject yet.  We‘re hoping to get one, but have you made a decision about whether or not to challenge him? 

SESTAK:  I haven‘t.  But I will say that the decision for having him -

having left his party, come over here, actually has moved me much more closely to it.  I now—I respect the political Democratic establishment in Washington made this decision, but we‘re independent in Pennsylvania, and I believe that we need to make that decision. 

And my concern right now is, having watched Arlen vote against the president‘s budget that‘s going to retool our economy, healthcare, which is costing us $100 billion a year in loss of economic productivity, education and energy reform. 

So my take on this is that I‘ll continue to watch for a bit.  But I have to tell you, I‘m very serious that if we don‘t have an individual who believes in the policy, and then when you look at them and see the cut of their jib, so to speak, and say, will he be there with us, not just today but after the election, up through 2016 -- I am not going to hesitate to get in this race.  Because the future, Rachel, is just too important. 

There‘s many issues, from health care to energy and others, that I think have moved me and kind of given me a little bit more fire in the belly to say, this is not right.  And I think—I‘ll watch for a bit, but it will be a bit. 

MADDOW:  Before we go, I want to bring back in Lieutenant Daniel Choi into this conversation.  Dan, when you hear Admiral Sestak there say that he thinks this could be done this summer, and that Congress could do it, maybe the president could do it on his own, but Congress ought to do it because it‘s the right way to do it and it‘s the straightforward way to do it, how do you feel about that? 

CHOI:  Well, I‘m not a politician myself.  I just, like so many thousands of others, gay and lesbian that are in the Army, that are in the armed forces, raised their right hand, they said—you know, we‘re in a time of war right now.  It‘s not about what timing is good or bad.  It‘s not about what you want to do.  It‘s about what your responsibility is.  We‘re saying that we‘re standing up to our responsibility and we‘re saying we want to serve. 

MADDOW:  U.S. Army Lieutenant Daniel Choi.  Democratic Congressman and retired Rear Admiral Joe Sestak, thank you both very much for your time tonight and thank you both for your service. 

CHOI:  Thank you.

MADDOW:  Dan, good luck to you. 

OK.  Lots to get to.  There is some late-breaking news tonight about Speaker of the House Nancy Pelosi, and whether or not she was briefed about torture.  There‘s also some news today about efforts by torture memo judge, Jay Bybee, to try to keep his job.  There‘s a lot to come on tonight‘s show.  This is sort of a packed hour.  You need to stay with us.


MADDOW:  Today is the National Day of Prayer on which the president of the United States is required by law to issue a proclamation saying it‘s the National Day of Prayer, and suggesting that Americans might do some praying today.  In a country founded in part so that religion would be a private matter for every citizen, in a country in which the government is constitutionally prohibited from endorsing any particular religious observation any other, or even the endorsing the idea of having a religion over not having a religion, having an official, legal National Day of Prayer in America has always been a little awkward.  But religious forces have long been powerful here and have long sought to yoke the power of the state to particular forms of religious expression.

In 1808, in response to entreaties that the U.S. adopt a National Day of Prayer, Thomas Jefferson wrote, quote, “Civil powers alone have been given to the president of the U.S., and no authority to direct the religious exercises of its constituents.”

President James Madison, who came after Jefferson, as the next president, wrote a whole essay of five reasons why a president shouldn‘t issue a prayer proclamation, saying that would imply the erroneous idea of a national religion.  He argued that governments are not qualified to give anyone advice on their religious practice.

But Harry Truman signed the National Day of Prayer into law in early ‘50s and now it‘s the law.  And today, President Obama followed that law and issued a proclamation quietly literally calling on Americans to pray today.  The proclamation literally says that.  “I call upon Americans to pray.”

That instruction from the president to engage in religious practice today, notwithstanding conservative Christian groups say they are upset that the president didn‘t do more.  See, George W. Bush used the prayer day as an opportunity to invite conservative Christian groups to the White House.  Barack Obama did not do that, leading Concerned Women for America to criticize the president‘s faith.


WENDY WRIGHT, CONCERNED WOMEN FOR AMERICA:  President Obama, who himself may have problems believing in the Christian faith, should at least, as the president of the United States, honor the traditions and the foundation of our country, which is based in Judeo-Christian beliefs, the belief that there is a God and that we owe him respect.



Joining us now is Reverend Dr. Welton Gaddy.  He‘s a Baptist minister from the great state of Louisiana.  He is president of the Interfaith Alliance.

Reverend Gaddy, Welton, thank you so much for being on the show.


MADDOW:  I have to ask first for your reaction to that, what I saw was an attack on the president‘s religiosity from Concerned Women for America.

GADDY:  Well, it‘s the same old story that comes from the religious right all the time, and that is—you‘re measured in your religious authenticity by whether your political views square with their political views, and by whether or not you heed whatever they say as truth and do things the way they want you to do it.

President Obama did stick with tradition today, except for the last eight years, when President George Bush had celebrations, observations of the day of prayer in the White House.  And the criticism leveled at President Obama is there because he didn‘t do the day of prayer observance just exactly like his predecessor did.

MADDOW:  Well, and I have to ask you about one detail about this.  James Dobson‘s wife heads a group that calls itself the National Day of Prayer Task Force.  If you go to their Web site, they say it is the official Web site for the National Day of Prayer and that‘s just—it struck me strange.  I mean, if it‘s—if it‘s really a National Day of Prayer, isn‘t what she‘s doing sort of like calling yourself the chairman of the Fourth of July?  Isn‘t it a little weird?


GADDY:  Yes, and in charge of prayer.  And she leveled the same kind of criticism at the president actually that the woman just did on your program now.  That task force has assumed authority for the National Day of Prayer.  And if you push them, they‘ll say, “Oh, no, we don‘t have any ties with government,” but the fact is that during the Bush administration, President Bush brought them into the White House, allowed them to do the National Day of Prayer precisely as they wanted to do it.

Now, there‘s a problem there because you gave a beautiful description of the role that religion is to play in the nation by definition of the Constitution.

But if you look at the task force‘s agenda, not only did they attempt to co-opt the day of prayer and make it theirs, they set new rules for it and said that “if you‘re going to participate in the National Day of Prayer with us, which we want you to do, you‘ve got to say that the Bible is the word of God without error, and you‘ve got to say that Christianity is an exclusive religion, in that, it is the only way to do religion with which God is pleased.”  That in a nation that is the most religiously pluralistic nation in the world, in which some people pray and some meditate, and some think and some support the nation in another way.

I don‘t like the fact that any president tries to tell religious people or any people when to pray or if to pray any more than I like to see religious leaders trying to tell the American people how to vote.

MADDOW:  Well, does that mean that you would prefer that there wasn‘t a National Day of Prayer at all?  I have to admit that I—just in terms of my beliefs about the separation of church and state, not at all about my religious beliefs or lack thereof, the idea of there being an official legal prayer day strikes me—it rubs me a little bit the wrong way.  It seems a little unconstitutional to me.

GADDY:  Well, it also seems a little bit religious hypocritical because—religiously hypocritical—because in most traditions, authentic prayer and meditation are acts that are done alone for the spiritual communication and meditation of the one involved.  And all of the protests that we‘re seeing today is not in favor of prayer as defined in historic religious traditions, it‘s about public prayer.

And I have always argued, whether you‘re talking about the National Day of Prayer, or whether you‘re talking about enforcing prayer in school, the issue is not prayer, the issue is proselytization, doing something in public that is supposed to be a private act, that is convincing others do it exactly the way you do, or feel guilty about it or move to the periphery of society.

MADDOW:  Reverend Dr. Welton Gaddy, president of the Interfaith Alliance and a deep thinker on such issues, proud that you‘re my friend.  Thanks for joining us on the show tonight, Welton.

GADDY:  Take care, Rachel.

MADDOW:  All right.

Still to come, that late-breaking news sent out from the CIA today about Nancy Pelosi.  Also, the strange fight between Colin Powell and Rush Limbaugh.  And, unintentional hilarity from Senate Republicans as they decide that scary music will be their ticket back to power in Washington.  It is all to come.  Stay with us.


MADDOW:  Coming up: A controlled scientific experiment in which we determine that it is possible to make anything in the whole world seem scary, if you set it to this music.


MADDOW:  I‘m scaring myself.  Stop it.  Stop.  Stop!  That‘s coming up.

But first, it‘s time for a couple of holy mackerel stories in today‘s news.

Today, the White House released its specific numbers for the 2009 budget.  This is the opening salvo in White House negotiations with Congress, but a budget is basically any administration‘s clearest enunciation of its values and priorities put into practice.  Certain departments and programs get more money and certain ones get less.  Or if you are the Department of Education attache in Paris, you get ix-nayed altogether.

So, quick overview of the winners in 2009 and the losers, including the attache in Paris.  Winners include the wars—which are making their first appearance in the regular budget.  President Bush had the habit of paying for the wars in Iraq and Afghanistan by emergency supplemental funding bills, as if they were a surprise every three months.  That way they never showed up in the budget and in deficit projections.

Now, Obama‘s budget allocates $130 billion in war funding.  Also, about a 4 percent increase in the base level Pentagon budget over last year.  That includes a pay raise for active and reserve military personnel.  Hoorah!

On the losing side, you have a program to build an alternate engine for a fighter plane the Defense Department doesn‘t even want.  Also, the entire beleaguered F-22 fighter plane program goes by the wayside, along with the new presidential helicopter fleet, a now obsolete long range radio navigation system, a program that pays states to clean-up defunct mines even though the program is already complete.

In total, the Obama budget will cut about $17 billion and trim or eliminate 121 programs.

There was one detail in the proposed homeland security budget that raised lots of eyebrows today—the Obama budget cuts funding for a network of radiation-detecting sensors here in the United States.

Since, frankly, I‘m a person who lays awake at night worrying about lost, and stolen and smuggled nuclear things, today, we asked an expert in the field, Joe Cirincione at the Ploughshares Fund, whether he‘s worried about this radiation sensor funding being cut.  Mr. Cirincione told us, quote, “These portal monitors are useless and expensive.  They have thousands of false alarms from shipments of things like cat litter, toilets and bananas—all give off minor radiation but enough to trigger an alarm.  Any terrorist smart enough to build a bomb would be smart enough to shield it from detection and then put it in a truck of cat litter.  This rush to buy portal monitors is one of the many boondoggles of the past administration.  It was stuff they could buy that appeared to offer a tech fix to a problem that really requires a comprehensive global solution like the one Obama now promises.”

So in other words, if there‘s one thing that should unsettle you more than need for radiation detectors, essentially dirty bomb detectors at U.S. ports, if there‘s one thing that should unsettle you more than that, it is the spending of tens of millions of dollars on a supposed solution to that problem that totally didn‘t work. 

Finally, in our ongoing effort to track the rehabilitation of the Republican Party, one almost unbelievably consistent and repetitious pattern has emerged.  Republicans, office holders and party leaders, engage in a mild dispute with talk show host Rush Limbaugh. 

Then inevitably, unerringly, always, the official ends up making an apology and/or a statement admiration for Mr. Limbaugh.  The same pattern keeps happening over and over and over again. 

Republican Party Chairman Michael Steele, Louisiana Governor Bobby Jindal, Congressman Mike Pence, Congressman Eric Cantor, Congressman Phil Gingrey, Gov. Mark Sanford of South Carolina, all of them upset Mr.  Limbaugh, and all of them then pedaled it back. 

Now, yet another prominent Republican has ruffled Mr. Limbaugh‘s feathers.  But he is someone who is hard to believe will do what other Republicans have done in this situation. 

On Monday, Gen. Colin Powell told an audience of corporate executives that the Republican Party was in dire straits and that, quote, “I think what Rush does as an entertainer diminishes the party and intrudes or inserts into our public life a kind of nastiness that we would be better to do without.” 

This follows earlier comments from Gen. Powell in December that Republicans should not listen to Mr. Limbaugh.  Mr. Limbaugh has now responded saying that Gen. Powell is just another liberal who should, quote, “close the loop and become a Democrat.  He also repeated the allegation that the only reason Gen. Powell endorsed Barack Obama for president is because of race. 

Just this year, we have seen two Republican governors, the party chairman and at least three congressmen back down and apologize after confronting this talk show host.  If this four-star general ends up breaking the streak, I guess we will finally know what chain of command really means.


MADDOW:  An interview that I did with Speaker of the House Nancy Pelosi in late February is suddenly back in the news today as Capitol Hill sources leak to the “Washington Post” new intelligence documents alleging that Speaker Pelosi knew more about torture than she has previously disclosed.  Here is what the Speaker told me on February 25th


(on camera):  September 2002, you were briefed on CIA detention issues and enhanced interrogation issues.  Because of those briefings, and I know you that you expressed concerns to the NSA after that October 2001 briefing, you released that publicly in 2006.  You didn‘t express public concerns at the time after those briefings.  Does that raise a complication? 


No, no.  The fact is they did not brief - first of all, we‘re not allowed to talk about what happens, but I can say this.  They did not brief us that these enhanced interrogations were taking place.  They did not brief us that was - they were talking about an array of interrogations that they might have at their disposal.  

MADDOW:  Techniques in the abstract, as if they were not being used? 

PELOSI:  We were never told they were being used.  

MADDOW:  Were you told they weren‘t being used? 

PELOSI:  Well, they just talked about them, but they - the inference to be drawn from what they told us was these are things that we think could be legal and we have a difference of opinion on that. 

But they never told us that they were being used because that would be a different story altogether.  And we had many disagreements with them all along the way on how they collect information in their country and what they think might be acceptable. 

They have never gotten any comfort from me on any of these issues, no matter what they want to say publicly.  And they know that I cannot speak specifically to the classified briefing of that kind.  But I can say flat out they never told us that these enhanced interrogations were being used.  


MADDOW:  “They never told us these enhanced interrogations were being used.”  That was from my interview with Speaker of the House Nancy Pelosi in February.  Speaker Pelosi saying she was briefed on enhanced interrogation techniques but she was not told they were being used. 

Tonight, in Washington, sources on Capitol Hill leaked to the “Washington Post” intelligence documents that apparently show, that they say show that Nancy Pelosi was briefed on, quote, “enhanced interrogation techniques, including the use of enhanced interrogation techniques on Abu Zubaydah.” 

So this document leaked tonight to the “Washington Post” says Pelosi knew that torture techniques - sorry, enhanced interrogation techniques, were being used.  Pelosi says, that‘s not so.  We‘re hoping for a follow-up discussion with the speaker to try to get to the bottom of this, particularly because the source of this document is as yet anonymous. 

And of course, the context here could not be more intense.  An expected Justice Department report is reported to recommend disciplinary action, including possible disbarment for at least two of the three authors of the Bush administration‘s torture memos. 

One of those two authors is Jay Bybee, now a federal judge.  “The Las Vegas Sun” reporting today that Mr. Bybee has been reaching out to members of Congress from his home state of Nevada, essentially reaching out for a lifeline. 

We made some calls today and can confirm this reporting.  According to representative Dina Titus‘ office, Judge Bybee made contact late last month about a potential meeting with the congresswoman. 

The congresswoman says she is open with meeting with Judge Bybee but her office says the congresswoman is, quote, “concerned about Judge Bybee‘s ability to carry out his duties as a federal judge with this controversy going on.” 

Now, Rep. Shelley Berkley‘s office says they were contacted by the judge late last month, too.  According to a spokesman in that office, quote, “If Judge Bybee is seeking to defend what the memos authorized, there‘s not much to discuss.” 

Nevada Senator Harry Reid‘s spokesman says that he does not believe Sen. Reid‘s office was ever contacted by Judge Bybee.  He tells us that Sen. Reid is waiting until the Intelligence Committee‘s investigation of the torture issue is complete before Senator Reid makes a statement about the calls for this judge‘s impeachment. 

Joining us now is Jonathan Turley, professor of Constitutional Law at George Washington University Law School.  Professor Turley, thanks for being on the show.  



MADDOW:  Why is Judge Bybee lobbying his members of Congress?  What could they do to help him here? 

TURLEY:  Well, I think he‘s desperately trying to find some new allies, you know, to defend the indefensible.  And he‘s seeking to appeal to Nevada legislators to make this really an issue of Nevada, and it‘s obviously not. 

A war crime is something that binds the world.  It‘s not a Nevada problem.  It‘s a human rights problem.  He participated in a torture program and he is now holding forth in judgment of others when he, in my view, should be part of a criminal investigation.  

MADDOW:  If the Office of Professional Responsibility does recommend that state bar associations take disciplinary action, including possible disbarment against Bybee, Yoo, and/or Bradbury, I don‘t know very much about state bar associations.  Are those boards likely to follow through on those recommendations?  Will they feel compelled to do so?

TURLEY:  Well, they might.  The question is going to be the sort of disconnect.  You know, the criticism of this investigation all along was it was an effort of the Bush administration to investigate itself and avoid calls for criminal investigation. 

And so the outcome, the recommendation, was sort of foretold, that they would say that this could be handled like a simple disciplinary matter, like there was a commingling of funds with a client. 

What we‘re talking about, of course, is his participation in a war crime.  And so, the problem I think that these committees are going to have is, if this guy was a critical part of a war crime, of a torture program, then why are you handing this to us and not doing a criminal investigation? 

Because if you are referring him to us because he did participate in a war crime, then we don‘t get why you‘re not also criminally investigating.  So there is this disconnect, an effort to say, well, these guys can punish them to whatever extent they want to punish them.  This is not normally the thing that a bar, you know, committee, a bar review board, handles.  

MADDOW:  That said, everybody, if they wanted to, could sort of do their part for the country, right?  The bar association could disbar him, the Congress could impeach him, and then the Justice Department could prosecute him, right?  It could all happen? 

TURLEY:  It could in fact all happen, and I hope, at a minimum, that President Obama will end this just endless performance of “Hamlet” on the Potomac, debating whether a special prosecutor will be appointed or whether these crimes will be investigated and do the right thing. 

Just appoint a special prosecutor and let the chips land where they may.  It is true that they could consider disbarment.  The irony is, of course, that you don‘t have to be a lawyer to be a judge.  In fact, many of our earlier judges were not lawyers. 

So that, on its own, would not necessarily be the grounds for impeachment.  But there would be so much cultural pressure against Bybee.  There already is.  That‘s the reason he‘s reaching out to anyone who can help him.

But there would be, I think, insurmountable pressure from other judges that if you are thrown from a state bar, you have to leave the court.  

MADDOW:  Jon, on this issue, this late-breaking issue tonight, the speaker of the House and torture, does the extent to which Nancy Pelosi was read in on torture affect how Congress could act to pursue accountability here?  And do you think there is any possibility that she, herself, could be in any legal trouble here? 

TURLEY:  Well, it already has affected what Congress would do.  Pelosi has been known for some time as one of the critical people blocking previously any effort to impeach President Bush over war crimes, but also to investigate these war crimes. 

And she and a number of Democratic leaders, I think, were afraid of being implicated in any investigation.  There was a disconnect between what they were saying publicly and what they knew privately. 

But the other thing is that Pelosi‘s earlier argument made no sense, really.  It was sort of an insult to the intelligence of the American people when she said, “Well, they just described it.  They said they might use it.” 

What exactly does that mean?  They sat down and described a war crime to you.  And because you thought it was a plan for the future, you didn‘t feel that you could take efforts to stop it?  That you didn‘t feel you could speak publicly about it? 

Does that mean you can sit through any crime, as long as it‘s given in the future tense?  So it never really was a very good defense.  But what this really does show is that we have a lot of collusion from Democrats.  The Bush administration was very adept at co-opting Democrats, by bringing them in at a time when they were not going to challenge President Bush because they were afraid it would affect them politically. 

And now, they‘re really seeing the awful costs of that to them personally.  They‘re desperately trying to avoid it.  All of this comes down to one thing, Rachel, and that is, we need to assure the American people that someone - someone in this process does not have a personal interest in the outcome.  That is the definition of a special prosecutor. 

MADDOW:  Constitutional law professor Jonathan Turley, thank you so much for joining us tonight.  Always great to have you on the show.  Thank you.  

TURLEY:  Thank you, Rachel. 

MADDOW:  Coming up on “COUNTDOWN,” Keith takes a look at Manny Ramirez‘ 50-game suspension from baseball for possible drug violations. 

Next on this show, we take a look at a so-serious-it‘s-hilarious Republican fear-up harsh video about Guantanamo.


MADDOW:  Attorney General Eric Holder got grilled on Capitol Hill today by Republicans hyping the idea that closing Guantanamo will essentially result in every American family being mailed their very own terrorist to take care of. 


ERIC HOLDER, ATTORNEY GENERAL:  With regard to those who you would describe as terrorists, we would not bring them into this country and release them, anybody who we consider to be a terrorist.  Paramount in our concern is the safety of the American people.  We are not going to put at risk the safety of the people of this country.  


MADDOW:  Despite those assurances, the Republican Party has decided that the “closing Guantanamo is dangerous” talking point is a real political winner.  Not only questioning the attorney general about it at length today, but also holding a house Republican press conference on the subject today and - and having Senate Republicans release this remarkable video. 



BARACK OBAMA, UNITED STATES PRESIDENT:  I have ordered the closing of the detention center at Guantanamo Bay.  

UNIDENTIFIED FEMALE:  The challenges in closing Guantanamo are complex.  Where would dangerous detainees like accused 9/11 mastermind Khalid Sheikh Mohammed go? 


[ background music ]

So, where are they going to go?  

UNIDENTIFIED MALE:  Military bases like MCAS Miramar or Camp Pendleton.  

UNIDENTIFIED MALE:  To the Navy base at Charleston, South Carolina.  

UNIDENTIFIED MALE:  From Guantanamo Bay to Alexandria, Virginia. 


SEN. PAT ROBERTS (R-KS):  Moving those terrorists to Kansas?  Not on my watch. 


MADDOW:  Scary, isn‘t it?  Watching that - actually, mostly just listening to that - generates the feeling of being scared.  And generating that feeling, playing that scary song, “O, Fortuna,” right, and cutting the visuals that way, making an audience feel fear, that is a cheap and easy way of encouraging an audience to overlook the abject stupidity of the argument that is being made. 

This point is made better actually by parody by Hilzoy(ph) at the “Washington Monthly” today than I could ever make it by explanation. 



(CAPTION READS:  Tell Barack Obama: No dangerous criminals in our country!  Paid for the committee to send dangerous criminals into outer space.)


Keep criminals out of America, Mr. President.  And while you‘re at it, we here at THE RACHEL MADDOW SHOW have a couple dangerous items you need to address. 



(CAPTION READS:  Tell Barack Obama to keep nails out of our country.)


Nails - they are everywhere in America.  They‘re small.  They‘re scary.  They‘re sharp.  They sometimes get rusty.  Of course, they‘re not nearly as scary as another scourge threatening our country. 



(CAPTION READS:  Tell Barack Obama to keep nappers out of our country. 

Paid for by Americans for Caffeine and Anxiety.)


MADDOW:  Napping is insidious.  It is everywhere.  It‘s at Congress. 

It‘s in the White House.  It‘s in cabinet meetings.  Napping.  And Mr.

President, once you have rid our land of the dreaded illegal alien we call

siesta, maybe you can take on this -



(CAPTION READS:  Tell Barack Obama to keep cute animals out of America.  Paid for by Palin/Nugent 2012.)


MADDOW:  Palin/Nugent 2012.  If Charles Manson and Omar Abdel Rahman, the blind sheik, and Eric Rudolph and Timothy McVeigh and his accomplice and the Una-bomber and Ted Bundy and Richard Reid can be incarcerated in the United States, so can other bad guys. 

Republicans may want to keep Guantanamo going but the idea that it has to stay open because we, as a country, are incapable of incarcerating anyone, that argument is absurd. 


That said, the idea that anything could be made scary by putting it to this music is conclusively proven true. 


MADDOW:  Hi, Kent.  What have you got? 

KENT JONES, POP CULTURIST:  New “Star Trek” today, engage.  

MADDOW:  All right. 


UNIDENTIFIED MALE:  Space, the final frontier.  

JONES (voice-over):  Here‘s what you need to know.  The new “Trek” is a prequel following the crew of the Enterprise before the ‘60s TV show, all the way back to the birth of polyester. 

The young hot Pilates versions of Kirk, Spock, Scotty, Uhura, Sulu and Bones are still at the Starfleet Academy before they ever face Klingons or the Borg or the Tribbles, and long before they face their mostly deadly enemy, carbs. 

Inevitably, the young Trekkers must come of age fighting a mean Romulan bent on destroying all the planets in the Federation including earth.  Frankly it is a little (UNINTELLIGIBLE).  

GEORGE W. BUSH, FORMER UNITED STATES PRESIDENT:  My answer is, bring them on.  

JONES:  Missing from the film, William Shatner as Captain Kirk.  Now, I like Shatner.  I‘ll miss Shatner.  Who else can do this? 

Leonard Nimoy does make an appearance at Spock prime.  Another famous Vulcan couldn‘t be in the film as he is otherwise occupied.  

B. OBAMA:  I grew up on “Star Trek,” you know.  I believe in the final frontier.  

JONES:  And here‘s something new - evidently, some of the crew take it to Warp Factor Five - whew!  It‘s about time.  The tension was unbearable.


MADDOW:  Spectacular.  Thank you, Kent.  Thank you at home. 

“COUNTDOWN” starts right now. 



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