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'The Rachel Maddow Show'for Thursday, May 21

Read the transcript to the Thursday show

Guests: Ari Shapiro, Ana Marie Cox, Kent Jones, Vincent Warren, Chris Hayes

RACHEL MADDOW, HOST:  And thank you at home for tuning in.

We will be talking shortly with the reporter who dropped the Alberto Gonzales bombshell on torture today—that is coming up.

There‘s also, of course, more to say about Dick Cheney tonight.  Chris Hayes will be here to help us with that.

Ana Marie Cox went toe-to-toe with the White House on “don‘t ask, don‘t tell” again today.  She will be here to discuss that.

And, Archie has reportedly chosen between Veronica and Betty—fictional character breaking news ahead from Kent Jones.

All ahead.

But we begin tonight with a tale of two speeches—both from the same man, both from President Obama.  One speech that could have been billed as a ballad to the Constitution—a proclamation of American values, a repudiation of the lawless behavior of the last administration.  And another speech—announcing a radical new claim of presidential power that is not afforded by the Constitution and that has never been attempted in American history, even by George W. Bush and Dick Cheney.

Remarkably, President Obama today made both those speeches simultaneously.  Standing inside the National Archives, in front of the actual, original Constitution, President Obama delivered a blistering critique of the Bush administration—in which he called their legacy literally a mess.


PRES. BARACK OBAMA, UNITED STATES:  Our government made a series of hasty decisions.  Poorly planned, haphazard approach.  Too often, we set those principle as side as luxuries that we could no longer afford.  Our government made decisions based on fear rather than foresight.  The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.


MADDOW:  An ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.  Ouch!

Then, moments later, he announced his own—his own ad hoc legal approach for fighting terrorism.  President Obama today proposed something new—something called prolonged detention.  Doesn‘t sound that bad, right?  Prolonged detention.

Did you ever see the movie “Minority Report”?  It was based on a Phillip K. Dick short story.  It came out in 2002.  It starred Tom Cruise, remember?  He played a police officer in something called the “Department of Pre-Crime.”  Pre-Crime is where people are arrested and incarcerated to prevent crimes that they have not yet committed.


TOM CRUISE, ACTOR (as John Anderton):  Mr. Marks (ph), I am mandated by District of Columbia Pre-Crime Division.  I‘m placing you under arrest for the future murder of Sarah Marks (ph) that‘s going to take place today, April 22nd, at 0800 hours and four minutes.

UNIDENTIFIED MALE:  No, I didn‘t do anything.


MADDOW:  You didn‘t do anything, but you‘re going to.  Future murder.  Creepy, right?  Putting somebody in jail not for what they have done but for what you‘re very sure they‘re going to do?


OBAMA:  There may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.


MADDOW:  We‘re not prosecuting them for past crimes, but we need to keep them in prison because of our expectation of their future crimes.


OBAMA:  Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture—like other prisoners of war—must be prevented from attacking us again.


MADDOW:  Prevented.  We will incarcerate people preventively—

preventive incarceration.  Indefinite detention without trial.  That‘s what

that‘s what this is.  That‘s what President Obama proposed today if you strip away the euphemisms.


One civil liberties advocate told “The New York Times” today, quote, “We‘ve known this was on the horizon for many years, but we were able to hold it off with George Bush.  The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning.”

And it is stunning.  Particularly to hear President Obama claim the power to keep people in prison indefinitely with no charges against them, no conviction, no sentence, just imprisonment—it‘s particularly stunning to hear him make that claim in the middle of a speech that was all about the rule of law.


OBAMA:  But we must do so with an abiding confidence in the rule of law.  Our government was defending positions that undermine the rule of law.  To ensure that they are in law with the rule of law.


MADDOW:  How can a president speak the kind of poetry that President Obama does about the rule of law and call for the power to indefinitely, preventively imprison people because they might commit crimes in the future?  How can those two things co-exist in the same man, even in the same speech?

Well, that brings us to the self-consciously awkward, embarrassing part of this speech today.  After condemning the Bush administration for what he called their ad hoc legal strategy for trying to make things seem legal that patently weren‘t, this is what President Obama proposed.


OBAMA:  My administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law.  We must have clear, defensible and lawful standards for those who fall into this category.  We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

Our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred.  Our goal is not to avoid a legitimate legal framework.  In our constitutional system, prolonged detention should not be the decision of any one man.  If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.

And so going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.


MADDOW:  You‘ll construct a legal regime to make indefinite detention legal.  You will—what did he say—develop an appropriate legal regime.  So you can construct a whole new system outside the courts, even outside the military commissions, so that you can indefinitely imprison people without charges and you‘ll build that system from scratch.  What‘s that somebody said about ad hoc legal strategies?

Just for context here, in the United Kingdom, where there isn‘t even a Bill of Rights, there‘s been a major debate about whether people can be held in preventive detention.  Former British Prime Minister Tony Blair wanted three months to be the outer limit for how long anyone could be held.  There was a big political fight about it.  Parliament ended up limiting that power to 28 days.  Twenty-eight days is still the longest period of preventive detention that‘s allowed under law in any comparable democracy any where in the world.

How long would President Obama‘s proposed preventative, indefinite detention last?  Well, he‘s not saying yet, but here‘s how he defines the threat that he says makes indefinite detention necessary.


OBAMA:  Right now, in distant training camps and in crowded cities, there are people plotting to take American lives.  That will be the case a year from now, five years from now—and in all probability -- 10 years from now.


MADDOW:  Ten years from now.  So, you could get arrested today and locked up without a trial, without being convicted, without being sentenced for, say, 10 years—until the threat of your future criminal behavior passes?  “Prolonged detention,” he‘s calling it.

This is a beautiful speech from President Obama today, with patriotic, moving, even poetic language about the rule of law and the Constitution—and one of the most radical proposals for defying the Constitution that we have ever heard made to the American people.

Joining us now is Vincent Warren.  He‘s executive director for the Center of Constitutional Rights.  He met with President Obama yesterday during a closed door, off-the-record, reportedly tense meeting at the White House.

Mr. Warren, thanks very much for joining us tonight.

VINCENT WARREN, CENTER OF CONSTITUTIONAL RIGHTS:  Thanks very much for having me, Rachel.

MADDOW:  As you can tell, I‘m having a hard time disguising my own feelings about this prolonged detention announcement today.  How do you see it?  Do you actually see this as a radical proposal?

WARREN:  I have to tell you, I was stunned when I heard those words come out of his mouth—in the same way that you did.  He didn‘t say the words “preventive detention,” but that‘s exactly what he was talking about.

You know, when you‘re talking about earlier in the segment that England has 28 days, that‘s 29 days too long in an American system.  This has never been done before.  It is completely outside of the realm of what‘s constitutionally permissible.  And it‘s frankly shocking and deeply disappointing that he would even go there when George Bush didn‘t even go there.

But I should point out that what he‘s essentially talking about is the Guantanamo system that we, at the Center for Constitutional Rights, challenged back in 2002.  George Bush said you‘re going to be in jail, you‘ll never get a trial, we‘re going to hold you as long as we need to—that sounds like what he‘s saying as well.

MADDOW:  That‘s exactly where I went with this.  And I was struck in particular by the relationship of this idea that he proposed today in the midst of this speech on law and order and the rule of law—struck by the connection between that and the abolition of the idea of the “enemy combatant.”  I mean, President Obama was applauded by civil libertarians for getting use of the idea of the enemy combatant.  That essentially gave President Bush carte blanche to arrest people that he felt were threats to the United States.

But, isn‘t this essentially recreating that distinction and just calling it something different?

WARREN:  Well, in point of fact, when we looked at it at the Center for Constitutional Rights, our analysis was he changed the names but he didn‘t actually change the basis upon which people could be held.  So, not calling people enemy combatants but holding them any way is really not solving the problem at all.

You know, the other piece is that there‘s another part which is the military commissions, reviving the Bush-era military commissions and that was bad enough.  I had plenty of problems with that.  But this was really something that was beyond the pale.

MADDOW:  I know that your meeting at the White House was off the record.  So, I will not ask you to tell me if the president previewed this announcement for you then.  But is it your sense that the president and this administration—that they want civil libertarians to go along with these ideas?  That they want the idea of reforming the military commissions to be something that civil libertarians will sign off on?

When he talks about prolonged detention, but it not being the decision of any one man, involving some sort of judicial and congressional oversight in some legal construct that has yet to be invented—is he expecting that civil libertarians will buy that?

WARREN:  You know, in meeting with him, he is an incredibly smart person and engaging person.  And he‘s frankly too smart to think that organizations like ours would go along with something like that because of a motivational speech.

I think, really, what‘s happening is that he has a policy of openness, and listening to people that disagree with him.  I think what needs to happen, though, is that he needs to employ his administration to provide more leadership with respect to these issues because he‘s frankly being boxed in by Congress.  We have a—you know, congressional, Senate, that a lot of people that were happy to stand with him on the campaign trail that completely backed away on this issue, and they‘re creating essentially an American gulag.  And he‘s not making a better, President Obama, by coming up with ideas like this.

MADDOW:  Politically, I know that you approach these things from the legal perspective, but legal and strategic and political matters sometimes blend on these things—particularly at the point when policies are being proposed.  Liberals and Democrats and opponents of the Bush presidency used to argue that the president didn‘t have powers like this—to indefinitely imprison somebody outside the court system.

Is there a danger that people who support President Obama—and I‘m thinking particularly of liberals and Democrats who support President Obama -- they‘ll change their mind on that whole subject of presidential power, because this time, the argument is coming from Obama, rather than coming from George Bush?

WARREN:  I think that‘s a possibility and I think—you know, to be clear, that the issue about presidential power for detention is a complicated one and there are a lot of details, and it depends on who you‘re talking about, under what circumstances, and where they were picked up.

But I think you‘re right—that a lot of people are very confident in this president saying, he‘s a good guy and he‘s only going to use his powers for good and not evil.  But that‘s something that we really can‘t afford to go down this road.  I really do feel like this is the point where democracy continues to die after the George Bush administration, and that‘s not something we want to see happen at the Center for Constitutional Rights.

MADDOW:  Vince Warren, executive director of Center for Constitutional Rights—thanks very much for your time tonight.  You didn‘t talk me down at all but I think that‘s appropriate.  Thanks.

WARREN:  Thank you, Rachel.

MADDOW:  After President Obama‘s speech today—directly after President Obama‘s speech today, there was another national security and terrorism speech from the Bush administration official once voted least likely to be confused with Chatty Kathy.  Leaving office is apparently not agreed with Dick Cheney, the man has changed, and now, he is on our TV machines every single day.

Chris Hayes from “The Nation” joins us next.


MADDOW:  Former Vice President Dick Cheney gave what amounted to the Republican response to President Obama‘s national security speech today.  It was a reminder that Mr. Cheney has essentially been giving this same national security speech for seven years now—basically the same speech over and over and over again.

But over time, his language changes, his language gets fuzzier, a little more general—to account for all of the earlier specific assertions of his that have been completely disproven.  Take for example the old line about WMD.

Here‘s how it started.


RICHARD CHENEY, FMR. U.S. VICE PRESIDENT:  Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction.


MADDOW:  That‘s very specific.  That was from August 2002, before the war.

Then, the next year, the vice president‘s word choice was already starting to get fuzzed up.  He said, quote, “In Iraq, a ruthless dictator cultivated weapons of mass destruction and the means to deliver them.”  See, the problem wasn‘t that he had weapons of mass destruction, but that he was cultivating them.

And today, further fuzzing up of the same issue.


CHENEY:  We turned special attention to regimes that had the capacity to build weapons of mass destruction, and might transfer such weapons to terrorists.


MADDOW:  Regimes that had the capacity to build weapons of mass destruction.

So, the big key scary important justification for starting a war has officially been fuzzed up from, “He has weapons,” to, “He‘s cultivating weapons,” to, “You know, hey, everybody‘s got the capacity to maybe some day get weapons, right?”

You want another Iraq war golden oldie?  How about the Saddam Hussein/al Qaeda link?


CHENEY:  And we‘ve learned a couple of things.  We‘ve learned more and more that there was a relationship between Iraq and al Qaeda that stretched back through most of the decade of the ‘90s.


MADDOW:  That was September 2003.  Back then, if you asked Cheney, his information was very specific, definite.  We had details.  I mean, Saddam was college roommates with all the top guys in al Qaeda.  They played can canasta every Wednesday night.  There were pretzels.

Now, the same story now.  The Iraq-al Qaeda link today.


CHENEY:  We had the training camps in Afghanistan and dictators like Saddam Hussein with known ties to Mideast terrorist.


MADDOW:  Known ties to Mideast terrorists.  Maybe not al Qaeda that attacked us—like I said before—but, you know, still sounds bad.

Over all, it sounds like Dick Cheney is giving the same speech over

and over and over again since 2001 right through today, and he is still

making all the same arguments that he has made all of these years.  It‘s

important, though, to note that he does have to keep fuzzing up the facts -

fuzzing up the language to account for the fact that he keeps getting proven wrong over and over and over and over again.


Joining us now is Chris Hayes, Washington editor of “The Nation.”

Chris, thanks very much for coming on the show.

CHRIS HAYES, THE NATION:  Thanks for having me back, Rachel.

MADDOW:  How much more watering down can Cheney‘s Iraq war arguments take?  Is there any chance that he‘ll ever just stop using them altogether?

HAYES:  Well, there‘s no chance he‘ll ever stop using them.  I mean, I think he‘ll go to his grave or possibly a prison cell using those arguments, because I think that he firmly in some diluted fashion believes them to be right.

But I think it‘s really important to note the changes as you have, and particularly when—it‘s important in terms of Iraq but it‘s actually, I think, more important to look at the sort of cutting edge of Cheney‘s deceptions, right, which is the things having to do with the torture regime specifically.  Which is to say there‘s a whole lot of assertions he made about the torture regime, which are unfalsifiable—we don‘t have the data, the information accessible to know whether they‘re true or not.

But I think we should view his statements like, for instance, you know, the torture regime, you know, saved the lives of thousands of Americans.  That statement should have exactly the same kind of truth status for us, presumptively, as the statement back in 2003 that we know for a fact that Saddam and al Qaeda are linked.

MADDOW:  Well, it would seem to me that we‘re already getting to the point where he has to start watering down the torture talking points.  I mean, if he‘s arguing for how effective waterboarding was, we now know that it was done hundreds of times.

HAYES:  Right.

MADDOW:  If it‘s really effective, you don‘t usually have to do it over 180 times.

HAYES:  Right.

MADDOW:  And we know that—from the interrogators who were there who are now speaking out—we now know that normal interrogations were working fine on these guys, at least in the case of Abu Zubaydah, before these enhanced interrogation techniques were started.

HAYES:  Yes.

MADDOW:  So, even just what we‘ve learned in the past year about it means that he should already be watering those things down.  I suppose, maybe we should look for that to be the hallmark of him—well, having to change the speech that he‘s giving—no, he‘s never going to change the speech.

HAYES:  Well, no, but I do think that on that issue, I think that is -

that‘s the place where we‘ll know the sort of truth is winning the debate at all.  If in subsequent—in subsequent addresses to whatever, you know, right-wing think tank he‘s talking to, he can no longer say those things—which he has to sort of keep including these new, relevant facts, then we‘ll know there‘s actually some sort of progressive encroachment of truth into the kind of diluted arguments that he‘s been making for eight years.


MADDOW:  Today was remarkable, Chris, not only for these back-to-back speeches was itself kind of a spectacle, but for the way that it was set up, as this mano-a-mano thing, the way that the media—but also, I think, Cheney, on purpose, is trying to set this up so that you see them in split screen, as you do right here.  This is how we‘re supposed to be imagining .

HAYES:  Right.

MADDOW:  . Democratic and Republican politics right now.  What does that mean for the Republican Party?  I mean, is this Cheney deciding that he‘s the rebuttal, the rebutter to the president?  Or is this the Republican Party putting him in this position?

HAYES:  Well, I think it‘s definitely Cheney.  I mean, I think, from a narrow political calculation, Dick Cheney is not the man—if you‘re a Republican political consultant—that you want the public to associate as the head of the Republican Party.  I mean, maybe he‘s a marginal improvement on Rush Limbaugh, but not by much—or, I don‘t know, they might be sort of vying for lowest or least-approved public figures in American life.

But I think it‘s Cheney.  I mean, look—we know from Barton Gellman‘s fantastic book, “The Angler,” and from Jane Mayer‘s reporting and others, that the man has just a tremendous ego.  He basically thinks he should be running the country and was running the country for a long period of time, and I think he thinks that the people around him—he sort of has this disposition to think everyone else is a wimp and he‘s the only one kind of tough enough to tell the truth.

And the one thing I kind of weirdly, not quite admire about Cheney but I‘m just sort of awestruck by, is that his commitment to this barbarous anti-constitutionalism overrides whatever political instinct he once had—which is to say, he doesn‘t really care, it seems to me, what the political ramifications are because he is so committed to defending this point of view.

MADDOW:  And the Republican Party will be the people who have to pay the price for that ultimately.

HAYES:  Hopefully.

MADDOW:  Chris Hayes, Washington editor for “The Nation” magazine—thank you very much for being with us.

HAYES:  Thank you, Rachel.

MADDOW:  New allegations that the Bush White House—not the CIA or the Justice Department but the White House itself—was OK‘ing enhanced interrogations before anyone else did, before the torture memos and all of that, OK‘ing things on their own.  That bombshell report is coming up later on this hour.

And, our friend Ana Marie Cox takes the fight against “don‘t ask, don‘t tell” straight to the top, straight to the White House again.  She joins us in just a moment.


MADDOW:  Terrorism suspect Abu Zubaydah gave conventional interrogators good, actionable intelligence.  Then the enhanced interrogation methods started.

Where did the order for these methods come from?  Well, the report now that it came not from the CIA or from the Justice Department or even from the vice president‘s office.  There are new reports that those orders came from inside the White House.  That is coming up.

But first, it‘s time for a couple of holy mackerel stories in today‘s news.  The California State Supreme Court is reportedly about to announce its decision on the constitutionality of Proposition 8.  The ballot measure passed in November that took back gay marriage rights from California‘s same-sex couples.

Sources close to San Francisco City Hall have told people outside city hall that the court was prepared to release their opinion today.  However, Mayor Gavin Newsom reportedly asked the court to delay its ruling.  Why would he do such a thing if, in fact, he did it?  Well, observers widely believe that the California Supreme Court ruling will be against same-sex marriage rights.

And today happens to be the 30th anniversary of the “White Night” riots in San Francisco.  The 1979 riots erupted after a San Francisco court handed down just a voluntary manslaughter verdict against Dan White.  Dan White had assassinated Mayor George Moscone and openly gay City Supervisor Harvey Milk.

Dan White‘s defense was his junk food diet has exacerbated his depression and diminished his capacity for rational thought.  He was temporarily insane, in other words.  It was the Twinkie defense and it worked.

Outraged crowds smashed windows, broke in to businesses, set fires throughout the city, police cars were torched, the city was on fire for days after the verdict.

So, that‘s why it would make sense if Mayor Newsom lobbied to delay the Supreme Court‘s ruling on Proposition 8 so it wouldn‘t come out today.  You could call it bad anniversary-esque (ph).  Mayor Newsom‘s office has issued a statement denying that the mayor lobbied for a delay in the court‘s ruling.  But now, we are expecting that ruling to arrive some time late next week. 

Back east, as they say on the west coast, the FBI says that a domestic terrorism plot has been thwarted.  Back in the days of Bush and Cheney and their war on terror, mundane constitutional methods like surveillance with warrants and the use of informants, techniques like were frequently eschewed in favor of war on terror. 

Well, this time, the FBI and NYPD arrested four men from Newburgh, New York, a little more than an hour north of New York City.  It was what they called an aspirational domestic terror plot to bomb two synagogues in the New York City borough of the Bronx and to shoot a military plane out of the sky at the same time with a surface-to-air missile. 

How did law enforcement officials bust the plot?  They used law enforcement.  Hey there.  An FBI agent was informed of the men‘s desire to attack American targets that led to a year-long investigation and ultimately the arrest. 

Authorities used undercover operations to gather intelligence from an informant about the accused terrorists.  The informant had gained the plotters‘ trust and attended meetings where they planned the would-be attacks.  The meetings were bugged with video and audio equipment for which the feds apparently had warrants. 

Later, the FBI stealthily provided the would-be terrorists with dummy explosives, with which they would try to bomb the synagogues and fake surface-to-air missiles with which they thought they could shoot down that plane. 

Then, using the evidence that they‘d collected - remember, evidence - authorities stopped the attack before it happened and arrested the suspects, presumably with a solid case ready to be made against them in court. 

No torture has been reported.  No indefinite or prolonged detention appears to have occurred.  A perfectly illegal plot apparently perfectly foiled, apparently perfectly legally.  That‘s the way we do it these days.  In the not so olden days, we would have just declared war on Newburgh, New York. 


MADDOW:  Drip, drip, drip.  New revelations about high-ranking Bush administration officials and torture.  Alberto Gonzales has been named specifically in a new report about interrogations that happened before the first of the infamous Justice Department memos authorizing torture. 

Terrorism suspect Abu Zubaydah was captured in March 2002.  An FBI interrogator named Ali Soufan was dispatched to question him.  Now, Mr.  Soufan was an experienced, accomplished interrogator.  He, for example, was the person who first obtained confirmation that the 9/11 attacks were the work of al-Qaeda. 

But Mr. Soufan wrote in “The New York Times” last month and told Congress last week that even though he was getting actionable quality information out of Mr. Zubaydah through traditional, non-coercive techniques, the interrogation process was taken over by a contractor working for the CIA.

That contractor is now known to be a psychologist named James Mitchell, who had no actual interrogation experience, but who was nevertheless being paid by the CIA to develop a program of violent, force-based interrogation methods. 


ALI SOUFAN, FBI INTERROGATOR:  The contractors had to keep requesting authorization to use harsher and harsher methods.  In the case of Abu Zubaydah, that continued for several months.


MADDOW:  Ali Soufan testifying about those contractors in the Senate last week.  The CIA contractor who wanted to use those methods - Soufan said they included forced nudity, sleep deprivation, loud noise, extreme temperatures.  The contractor who wanted to use these techniques had to keep requesting authorization to use them. 

And we know that the contractor got that authorization because those techniques were, in fact, used against Abu Zubaydah.  They got that authorization to use nudity and sleep deprivation and loud noises and extreme temperatures - they got that authorization months before the Justice Department ever wrote up the torture memos. 

So who gave them that authorization?  And on what grounds?  That is the new revelation.  NPR‘s Ari Shapiro reporting on the basis of a source with knowledge of Zubaydah‘s interrogation that, quote, “Nearly every day, contractor James Mitchell would sit at his computer and write a top-secret cable to the CIA‘s counterterrorism center.  Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah.  The source says the CIA would then forward the request to the White House where White House counsel Alberto Gonzales would sign off on the technique.” 

Bombshell.  If this is true, if Alberto Gonzales was personally signing off on enhanced interrogation techniques on his own, then the whole idea that there was a legal framework that made these techniques legally OK is sort of a joke. 

If this is true, when Gonzales was OK‘ing these techniques, he was not attorney general yet.  He wasn‘t a law enforcement officer at all.  He was White House counsel.  He was just the president‘s lawyer. 

Joining us now is Ari Shapiro, the NPR‘s justice correspondent who uncovered the scoop.  Mr. Shapiro, thanks very much for your time tonight.  


MADDOW:  I know you won‘t tell us who your source is, obviously.  But I have to ask if you are confident that he or she was somebody who was actually in a position to know this information.  

SHAPIRO:  Yes.  You know, every time I talk to somebody who has concerns about their voice, their name being used on the radio, I have a conversation about how much information I can provide to convince listeners of the authenticity of this source. 

In this case, the most I can say is this is somebody with knowledge of the Zubaydah interrogation.  And unfortunately, that‘s as far as I can go.  

MADDOW:  OK.  Well, you have also reported that there is some documentation that might corroborate your source‘s story.  What‘s the documentation?

SHAPIRO:  This is actually a public document.  And I have to say this was sort of a good luck, good timing gift from the journalism gods.  I had started to uncover this story and I called Jameel Jaffer, an attorney with the ACLU, who I know has worked on these issues.  And he said to me, “You know, it‘s funny you should call, because just last night, the CIA sent us a log of all of the back-and-forth communication listing the number of times messages were sent from the safe house where Zubaydah was being held to CIA headquarters.” 

This log showed that there were several communications each day.  So that certainly doesn‘t prove the story but it‘s consistent with the story.  And as I say, it was pure good luck that I happened to run across this log in Jameel Jaffer‘s hands the day that I was working on the story. 

MADDOW:  Yes.  That‘s sort of dramatic and incredible. 

SHAPIRO:  Yes.  The CIA had just sent it to them the night before

MADDOW:  That‘s amazing.  You also - in your story, you quote a former government official, an unnamed government official saying that if this account is true, then the whole legal and policy review process from April through August would have been a complete charade. 

What‘s that former official saying?  What‘s the implication that that official is drawing? 

SHAPIRO:  Well, have you to understand that all summer long during 2002, officials from across the government, Defense Department, Justice Department, State Department, White House, were meeting and trying to figure out what the right rules for harsh interrogations were. 

This is a person who had knowledge of those conversations and said to me if we had known that the White House was authorizing all of these things while we were on our own trying to figure out what the appropriate rules are, it would have really changed the conversation.  And the fact that we didn‘t know suggests that this entire process that we thought was a good faith from scratch across the government effort was, in this person‘s word, a charade.  

MADDOW:  Yes.  Well, can the White House counsel actually authorize something for the CIA to do?  Does the legal chain of command actually work that way? 

SHAPIRO:  It‘s very unusual.  I talked with somebody named Bradford Berenson who served in the White House Counsel‘s Office under President Bush but had no role in authorizing these interrogations.  And Mr. Berenson said to me, you know, the White House Counsel‘s Office is not really in the business of telling CIA interrogators what they can and cannot do. 

Typically, the White House Counsel‘s Office advises people who work in the White House.  That said, Mr. Berenson said this was an extraordinary time.  It was a very unusual set of circumstances after 9/11.  It did not seem entirely inconceivable to him that right after those attacks, there would be a concentration of power.  And a few months later the Justice Department would author its official legal memorandum.  

MADDOW:  And we‘re all left to figure out what it means that the White House Counsel‘s Office would think itself capable of authorizing this behavior.  I guess I should also note now that you contacted Alberto Gonzales for comment either to confirm or deny the story.  Is it true that he just never responded to you? 

SHAPIRO:  That‘s right.  And also James Mitchell, the contractor who conducted these interrogations has not made any public comment for a few years and couldn‘t be reached for this story either.  

MADDOW:  We contacted Alberto Gonzales today, or we tried to.  The people speaking for him now, I guess, are his talent bookers and they wouldn‘t give us any comment either.  But they did say they‘d pass on our message.  So if I hear before you do, I‘ll give you a call, Ari.  

SHAPIRO:  I appreciate that.  Thank you.

MADDOW:  Ari Shapiro, NPR‘s justice correspondent, thanks for this great reporting.  Thanks for joining us.

SHAPIRO:  Thanks for having me.  

MADDOW:  Ana Marie Cox is on deck, fresh from grilling the White House about the president‘s position on “Don‘t Ask, Don‘t Tell.”  Ana Marie asked, the White House sort of really didn‘t tell.  We will have the full story with her, next. 


MADDOW:  In the face of increasing controversy over the administration‘s position on “Don‘t Ask, Don‘t Tell,” the ban on openly-gay people serving in the military, the White House was forced to petrify, to reiterate that they are, in fact, working on changing the policy.  Why were they pushed into admitting that? 

Well, I think it‘s because Ana Marie Cox keeps bringing it up at the White House.  As we reported last night, she raised it yesterday with the White House Press Secretary Robert Gibbs at yesterday‘s briefing.  He told her the president is, quote, “working with the secretary of Defense and the Joint Chiefs-of-Staff to change “Don‘t Ask, Don‘t Tell.” 

That was awkward, because a Pentagon spokesman had said on Tuesday that nothing like that sort of work was happening at the Pentagon.  Today, Ana Marie Cox was back at the White House briefing room, still pressing for answers. 



the president is working with the Pentagon and the Joint Chiefs-of-Staff on

“Don‘t Ask, Don‘t Tell.”  But early this week, the Pentagon said that the

conversations were, quote, “initial” and that there is, quote, “no sense of

any immediate development in the offing on efforts to repeal ‘Don‘t Ask,

Don‘t Tell.‘” 

So I wanted to give you a chance to correct the Pentagon on that. 

And there are two on other questions.  What other policies are there -

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  You‘re going to ask like that, you‘re going to get bumped up like this to the first row.  Let me address the first question because if I‘m not mistaken, the Pentagon did correct that statement on efforts regarding the reform on “Don‘t Ask, Don‘t Tell.”  

COX:  So there are active conversations happening? 

GIBBS:  Yes, yes.  

COX:  OK.  And then, I wanted to know if there are any other policies that the president believes to be, as you said yesterday, about “Don‘t Ask, Don‘t Tell,” not in our national interest, but it‘s content to let Congress take the lead on. 

And second, President Truman, didn‘t see it necessary to clear segregation through Congress, so how is this different?

GIBBS:  Well, I don‘t want to put words in your mouth, but maybe I was

maybe I used some poor language.  But the president is involved in these discussions.  It was the president‘s commitment to overturn the policy that‘s not in our national interest.  That is the reason for these discussions and for the effort to overturn this. 

So I think the notion somehow that - the reason Congress is

involved is the only durable and lasting way with which to overturn the

policy is to do it by law.  That‘s the -

COX:  So when can we expect the durable policy on racial segregation in military since that‘s never gone through? 

GIBBS:  Well, I‘m out of my depth as a lawyer, but the - and I am not exactly sure of the timing of when President Truman did that.  But my sense is that there were all sorts of legal proceedings around that. 

You can‘t - try as one may, a president can‘t simply whisk away standing law of the United States of America.  I think that‘s maybe been the undercurrent of some of the conversations we‘ve had over the past few days on Guantanamo Bay. 

But if you‘re going to change the policy, if it is the law of the land, you have to do it through an act of Congress.  

COX:  And so, there is there pending legislation?  I didn‘t see any.  

GIBBS:  I don‘t know what‘s - I don‘t know what‘s been introduced in Congress.  


MADDOW:  I do.  I do.  Joining us now, fresh off her latest battle with the Press Secretary Robert Gibbs is Ana Marie Cox, national correspondent for Air America and contributing editor for “Playboy” magazine - is that true? 

COX:  It‘s true.  That‘s my new gig.  

MADDOW:  Wow!  How‘s that going? 

COX:  Well, this is actually going to be the first thing I‘m going to write about for them - it‘s “Don‘t Ask, Don‘t Tell” ...  

MADDOW:  Excellent.

COX:  ... and the president‘s sort of shifting explanations about it.  

MADDOW:  Well, your exchange with Robert Gibbs yesterday which we played yesterday and this extended exchange today, sort of remarkable on any subject in the briefing room. 

But to see him being that careful and saying so little, I have to ask, have you had any further communication or clarification from the White House on this since these two questions? 

COX:  Well, I did get a note from one of the assistant press secretaries that reprinted something that one of the Pentagon spokespeople said that I actually hadn‘t heard before.  I can read it, if you want. 

It says something - it says that President Obama has been very clear in his direction that he is committed to the repealing of “Don‘t Ask, Don‘t Tell.”  I don‘t think it actually does any more to convince me that there are active negotiations underway. 

However, based on several different conversations I‘ve had with people at the White House and near the White House, I do believe them that this is a priority for the president.  I do think this is a genuine concern of his.  I think where the problem lies is in how they‘re explaining their strategy. 

MADDOW:  Well, on the issue of what the president could do, what he legally has the capacity to do, you asked him this question about the analogy of racial desegregation in the military.  And I‘m confused by his implication that Truman didn‘t just take executive action.  He said there was some sort of legal proceeding around that issue.  Do you know what he‘s talking about there? 

COX:  I have no idea because I know that you studied history as well, and actually, that‘s completely wrong.  President Truman actually did just, you know, whisk into history the desegregation of the military.

He did it without an act of Congress and without any pending legal cases.  However, it‘s true that “Don‘t Ask, Don‘t Tell” is codified law, which makes things a little more complicated.  It‘s an actual U.S.  code of law.  However, I think, as you and I have discussed, there are things that Obama could do through executive order. 

He could stop the implementation of the law.  He could suspend the law for a little while.  There are several different things he could do.  What I think is important here is I don‘t think they‘re really waiting on Congress. 

I think they‘re waiting on the Pentagon and they‘re waiting on the military to go back to the Truman, you know, precedent.  Truman actually had a few different panels and commissions on his side, military panels and commissions that weighed in and said that the right thing to do, the thing to do that‘s good for the Army, that‘s good for the military, is to desegregate the troops. 

We haven‘t gotten that kind of decision from any kind of military commission or panel as far as, you know, integrating other people into the military. 

MADDOW:  Or letting people stop lying who are already there. 

COX:  Yes, that‘s (UNINTELLIGIBLE).  I mean, you know, part of me doesn‘t even understand why this is an issue, so I have trouble articulating like what the problem is.  

MADDOW:  Air America‘s national correspondent and contributing editor for “Playboy” magazine, Ana Marie Cox - I‘m very much enjoying saying that.  And this has been amazing to watch.  I hope that nobody is giving you a hard time in the press briefing room for asking these questions but you‘re being very dogged and impressive.  

COX:  All right.  Thank you, Rachel.  

MADDOW:  All right, thanks.  Coming up on “COUNTDOWN,” Keith‘s special comments on Dick Cheney. 

Next on this show, it‘s Betty versus Veronica.  My friend Kent Jones sizes up who Archie should finally marry after nearly seven decades of indecision.


MADDOW:  We turn now to our comic book matrimonial correspondent, the one and only Kent Jones.  Hi, Kent.  

KENT JONES, POP CULTURIST:  Hi, Rachel.  Well, America‘s favorite comic book teenager, Archie, is going to get married in an upcoming issue.  Now, we don‘t know to who is getting married yet, but it‘s going to be either Betty or Veronica.  He‘s got to choose.  

MADDOW:  Oh.  

JONES:  So that‘s a tough call.  Let‘s help him break this down.  

MADDOW:  OK.  All right.  


JONES (voice-over):  Elisabeth “Betty” Cooper - ah, Betty.  Blond, middle class, sweet as raspberry ice cream on a summer day.  Betty likes sports.  She cooks, makes her own clothes.  She likes to fix cars.  Betty is a loyal, smart, sensible, honest, often overlooked because they‘re so nice. 

Guys don‘t deserve Betty.  And let‘s just say it, Betty is a hottie.  Straight up, Archie, if you don‘t marry Betty, you‘re a first-class doofus.  Seriously - I mean, don‘t you get it?  Betty can fix your car. 

Then, there‘s Veronica Lodge.  She will not be fixing your car. 

Raven-haired, beyond rich, sweet as a flaming tequila shot.  Veronica likes

well, you can‘t afford what Veronica likes.  Veronica is a smart, scheming, want what they want when they want it and are never, ever overlooked.  And hot - whew!  Are you kidding me? 

It‘s their world and we just live in it, Archie.  And if you marry Veronica, you‘re an idiot, a widely envied idiot. 

Come to think about it, I‘m not sure Archie is ready for either of them.  There‘s going to be a wedding.  Maybe it should be these two. 


MADDOW:  They are perfect for each other.  

JONES:  Really.  The opposites attract.  It‘s always true.

MADDOW:  When do we find out this summer? 

JONES:  Yes.  Later, August or September.  

MADDOW:  That‘s very exciting.  A cocktail moment for you, Kent. 

JONES:  Very nice.  

MADDOW:  Do you remember the story how Republicans want to stop the global warming bill by having it all read aloud.  Remember that?

JONES:  Yes.  

MADDOW:  The bill itself ling 900-something pages and they‘ve introduced thousands of amendments and they want everything to be read aloud on the floor of the House. 

JONES:  Yes.

MADDOW:  That‘s how they want to stop the bill.  Democrats and House Energy and Commerce Committee responded by hiring a speed-reader.  And today, believe it or not, they tried him out.  There is footage of him speed-reading on C-span.  Check it out.  

JONES:  Excellent.  


COMMITTEE:  The clerk will read the bill. 

UNIDENTIFIED MALE:  In lieu of the matter proposed to be - inserted by

the amendment offer by blank, insert the following section one, shorten

that list -

JONES:  Listen to it -

UNIDENTIFIED MALE:  May be cited as the Energy Production Innovation and Conservation Act.  The table of contents - table of contents, with the act as follows, section one, short title, table of contents, title one clean energy standards, section 101 - title one, clean energy standards, title two, American energy.  Subtitle A - conservation (UNINTELLIGIBLE). 

Chapter one (UNINTELLIGIBLE) -


REP. JOE BARTON (R-TX):  Mr. Chairman, I ask unanimous consent that the reading of amendment be dispensed with.  


MADDOW:  Spontaneous applause for the speed reader.  

JONES:  That was excellent.  That was excellent.  That was excellent.

MADDOW:  It was excellent.  Thanks, Kent.  Thank you.  “COUNTDOWN” starts now. 



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