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'The Rachel Maddow Show' for Wednesday, August 11th, 2010

Read the transcript to the Wednesday show

Guests: Gail Collins, Jonathan Hopkins, Katherine Miller, Katherine Miller,

Lt. Col. Victor Fehrenbach, M. Andrew Woodmansee


RACHEL MADDOW, HOST:  Good evening, Keith.  You do actually look very well lit.  What‘s going on?

OLBERMANN:  I‘m very well lit.  I‘ve been hanging out with these two. 

Thank you.

MADDOW:  Excellent.  Thanks, you guys.

Thanks to you at home for staying with us for the next hour.

We begin tonight with two enduring images of modern American conservative politics.  The first one is George W. Bush climbing on board Marine One and getting choppered away from the White House for the very last time.  That was, of course, the day of Barack Obama‘s presidential inauguration last January.

Here‘s the other image, the Republican Party‘s next-in-line standard-bearer, John McCain, throwing in the towel on election night, acknowledging personal defeat for himself in that election and overall electoral defeat for the Republican Party.

Those two images, President Bush leaving office and his would-be replacement, Senator McCain, becoming unable to replace him—those two images left the Republican Party sort of where it‘s been for the last couple of years—leaderless and from time to time, a little rudderless but very, very much out of power.

A few months after the presidential election, a grand total of 20 percent of Americans identified themselves as Republicans.  That‘s it.  Lowest in a generation.

Now, if you‘re a Republican, if you‘re a conservative-minded person,

if you find yourself frequently on the right side of the fence, how do you

how do you feel at that point?  You could feel demoralized or beaten down or hopeless—or, more likely, because you‘re an optimist, you could feel like there‘s nowhere to go but up.  We‘ve got a party to rebuild!


And that‘s exactly what we have seen happen over the last year and a half.  It has been the greatest show on Earth—or at least the greatest show in American politics.  The right rebuilding itself post-Bush, post-McCain.

And now, we are far enough into the midterm election season.  We‘re far enough into the next election that we are starting to have an answer to that question, to that question of what the American right looks like post-Bush and post-McCain.

And the surprising thing about the answer is that the right has come back undoubtedly, but they have come back without the Republican Party.  With John Boehner, the top Republican in the House, with Mitch McConnell, the top Republican in the Senate, with Michael Steele at the helm of the official Republican Party, conservatives have apparently decided to abandon that old thing and go rogue, to do it on their own.

Given the results of last night‘s primary elections, there have now been enough primaries.  There‘s been enough political decision-making for the midterms on the right to make out a pretty clear pattern here.  Republican Party establishment candidates are out.  Conservative movement candidates are in.

This was a trend that appeared even before last night.  Earlier this year in Kentucky, of course, the Republican establishment pick, Trey Grayson, was trounced by the much more conservative Rand Paul.

In Nevada, Republican establishment pick, Sue Lowden, the chickens for checkups lady, she was trounced by the more conservative Sharron Angle.

In Florida, the Republican Party‘s original establishment pick, Charlie Crist, was essentially forced out of the Republican Party and into the independent column by conservative candidate Marco Rubio.

The Republican Party makes its endorsement—make their endorsement, the party gets behind its candidate, and then—the conservative movement candidate beats the endorsed Republican Party candidate.  It keeps happening over and over and over again.

Last night, it happened again in Colorado.  The Republican establishment pick, Lieutenant Governor Jane Norton, was beaten by the more conservative movement candidate Ken Buck.

In Connecticut, the Republican establishment pick recruited to run for the seat by the Republican Senate Campaign Committee, Rob Simmons—he was ousted by wrestling executive, Linda McMahon.

Now, on the one hand, this means new blood on the Republican side, absolutely.  If those—if those candidates win, it is a very different GOP in Washington come January than the folks they‘ve got there now.  On the other hand, it‘s kind of hard to imagine that these candidates are all going to make good general election candidates.

When you look at them in aggregate, it‘s kind of amazing.  Meet the Republican class of 2010.


UNIDENTIFIED MALE:  Would you have voted for the Civil Rights Act of 1964?

RAND PAUL ®, KENTUCKY SENATORIAL CANDIDATE:  I like the Civil Rights Act in the sense that it ended discrimination in all public domains, and I‘m all in favor of that.


PAUL:  You had to ask me the “but.”  I don‘t like the idea of telling private business owners—I abhor racism, but at the same time, I do believe in private ownership.

What I don‘t like from the president‘s administration is this sort of, you know, “I‘ll put my boot heel on the throat of BP.”  I think that sounds really un-American and his criticism of business.

SHARRON ANGLE ®, NEVADA SENATORIAL CANDIDATE:  If this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies and saying, “My goodness, what can we do to turn this country around?”  And I‘ll tell you, the first thing they needed to do is take Harry Reid out.

We have put in so much entitlement into our government that we really have spoiled our citizenry and said, “You don‘t want the jobs that are available.”

UNIDENTIFIED MALE:  How do you feel about abortion?  Are you for abortion, against abortion?  If you‘re for it, in what instances would you allow for abortion?

KEN BUCK ®, COLORADO SENATORIAL CANDIDATE:  I am pro-life, and I‘ll answer the next question.  I don‘t believe in the exceptions to rape or incest.


MADDOW:  Right now, the political momentum in this country is undoubtedly on the Republican Party‘s side.  2010, in theory, should be a really awesome year for Republicans.  They couldn‘t really ask for a better political climate in which to run.

And so, if you are a conservative activist, if you‘re ideologically motivated to try to move the country as far to the right as you can, then you look at a year like this, you look at a year in which the right has a ton of tailwind, you look at a year like this as an opportunity to get in all of your not-electable-in-any-normal-year far-right candidates.

I mean, you look at a guy like Ken Buck and you say, if not this year, when, ken?

And so, conservatives are really going for it this year.  They are rejecting all of the Republican Party‘s establishment picks.  They are instead voting in candidates further to the right.  Not only Sharron Angle and Rand Paul, not only these folks—but the folks who are still now being elected this late in the primary season, guys like Ken Buck who are so far to the right that if this isn‘t their year, then probably no year is.

Without the mediating and moderating effect of a functioning, governing party in Washington deciding who the party‘s candidates are going to be, Republican primaries so far this year have been—whoo hoo!  Off the rails.  Repeal the Civil Rights Act, force women to have rapist babies, churches get to endorse candidates now.  Whoo hoo!

Conservatives have filled election ballots with all of these really extreme candidates.  None of the high-profile, midterm GOP candidacies, though, importantly, none of them were built by the Republican Party establishment.

The conservative movement has essentially supplanted the Republican Party‘s role in choosing Republican candidates.  And in so doing, they perhaps have inadvertently given new life to Democrats‘ chances in what by all accounts really ought to be a really red year.

Joining us now is “New York Times” columnist, Gail Collins.

Ms. Collins, thank you very much for coming in tonight.


MADDOW:  Let me ask you—let me give you the opportunity to shoot my premise full of holes.

COLLINS:  It‘s a pretty good premise, you know?

MADDOW:  Do you think that the movement is supplanting the party?

COLLINS:  Well, you know, usually what happens when you‘ve got a party that‘s fallen out of favor, as the Republicans did, then they‘re out far while and they get desperate, and then they rethink things and they come up with a new plan, a new vision.  This didn‘t happen for them because the economy fell apart.  And so, they don‘t have to do any of those things.

So, they basically have all the people who got them into the hole to begin with and all these new people who want to dig their own brand-new hole somewhere else, and there‘s nobody really putting the thing together.

MADDOW:  But it does seem like it‘s—I mean, it‘s a—it‘s a strategy that‘s either going to pay off hugely because we‘re going to have the most radical Republican slate of candidates elected in my lifetime certainly, or we are—or they‘ve just shot themselves in the foot in terms of their electoral chances.  I—you would think that their strategy would be to lay as low as possible, to run the least memorable candidates at all, and hope people vote for them as not Democrats.

Instead, the whole country is, you know, mouth agape, stunned by everything that Sharron Angle says.

COLLINS:  Yes.  And, you know, could be worse because a lot of these -

a lot of these elections we‘ve had, the person who won who was the more normal calm person only won because there were 12 Tea Party candidates running against them.


MADDOW:  Right.

COLLINS:  It could have been worse for them than it is.  But it‘s just

there‘s no party there.  They‘re running the party as a failed party, and the right wing, the Tea Party people understand that, so they‘re making up their own thing.  But there‘s nothing there.  There‘s no real center there to hold.


MADDOW:  Does—how much does it matter to have a functioning party apparatus?  I mean, it seems like a lot of what‘s going on, a lot of the energy on the Republican side or at least on the conservative side is around Michael Steele, around the RNC, around even the campaign committees.  They‘re sort of organizing on their own.

Does that mean that the party doesn‘t matter anymore?

COLLINS:  It will matter in the long run.  I mean, sooner or later, you get to Washington and if you actually have a bunch of people there who are in the majority or the near majority, you‘ve got to come up with a plan.  And you‘ve got to come up with a leader.  You‘ve got to come up with some ideas.

I mean, so far, there‘s no real plan there.  You don‘t have any vision of what the Republicans would do except they‘d cut taxes.  Other than that, there‘s no “there” there.

MADDOW:  The Democratic Party, of course, never likes to miss an opportunity to miss an opportunity.


MADDOW:  How are they handling the sort of unexpected surprise of the real—the real extremism among the Republican primary winners?

COLLINS:  So far, very well.  I mean, they‘re not doing anything except just sort of lay there and wait, and holding on to their commercials, which, you know, will come beating forth in about three or four weeks and being happy.  I don‘t think they‘ve done many strange or stupid things in the races that are coming up.  I mean, you‘ve got your occasional, you know, “I was in Vietnam, I wasn‘t in Vietnam” kind of thing going on.

But really, compared to what‘s happening on the Republican side, the Democrats look like a very sensible, orderly group right now, which is inconceivable to me.  How could this be?  It‘s not possible.

MADDOW:  Does that imply some sort of organizing force on the Democratic side that the Republicans don‘t have right now?  Is that coming from the White House?  Is that coming from Tim Kaine?  Are Democrats actually having meetings and talking to each other and coordinating these things?

COLLINS:  There‘s bunches of different things.  You know, there‘s the White House, there‘s Tim Kaine, there‘s the Senate Democrats, there‘s the House Democrats.  All those people are working and they‘re not fighting, really, with each other—which is really all you can ask for.  You really can‘t ask for some great overriding genius running the whole thing at this point.

MADDOW:  The big sort of chattering class story of the week has been this swipe that the White House spokesman took at the “professional left,” essentially complaining about the Democratic base, complaining about stuff not done.

COLLINS:  Right.  Right.

MADDOW:  That‘s fun as a personality-driven story, I think.  But, I think, the more substantive question that derives from that is: what will Democrats do to actually get people excited enough to go vote for them in November?

COLLINS:  It will be the getting out the vote trick that will work.  I‘m not sure you can get the Republicans very excited about going out to vote for their people either.  In the end, it‘s going to come down to pure fear.  Whichever party can convince the public that the other party is the more terrifying and horrible is going to be the one that wins.

MADDOW:  That implies it‘s going to be a fun season.

COLLINS:  It‘s going to be so good.


COLLINS:  It‘s going to be wonderful.

MADDOW:  “New York Times” columnist, Gail Collins—it‘s always great to have you on the show.  Thank you for coming.  Thanks.

COLLINS:  Good to see you.

MADDOW:  So, coming up next—I would like to introduce you to the first of our three exclusive stories tonight.  We are about to have one of those cable news nights that makes the White House mad, about which I do not gave flying flip.  But let‘s get it started—next.


MADDOW:  When 9/11 happened in September of 2001, Jonathan J. Hopkins was brand-new graduate from the United States Military Academy at West Point.  Out of a class of 933 vets at West Point, Mr. Hopkins was fourth overall—fourth out of 933.  He received the Knox Award, which is given to the cadet with the highest-rated military efficiency in the entire class.

As a newly-minted Army officer, Jonathan Hopkins deployed into combat at the start of the Iraq war, when a 4,000-soldier brigade went in to Kirkuk at the start of the war, Hopkins‘ platoon, the platoon he led, was one of the first.  Ten days later, he was the lead element of his battalion in a vehicular assault on Kirkuk.

Over the next several years, Jonathan Hopkins would rise to the rank of captain and served three combat deployments in both Iraq and Afghanistan.  He became commander of a striker infantry company.  He earned three Bronze Stars, one with Valor.

Yesterday, now former U.S. Army Captain Jonathan J. Hopkins was fired because regardless of all that I just said about him, our country now officially rejects his service and wants him out of the military because of “don‘t ask, don‘t tell.”

Joining us now is Jonathan Hopkins, discharged yesterday from the United States Army.

Mr. Hopkins, thanks very much for joining us.


MADDOW:  I know that you received your discharge orders yesterday.  How long did the overall process of separating you from the military take under “don‘t ask, don‘t tell”?

HOPKINS:  It took almost exactly 14 months from the time they first started the investigation until I left the Army, during which I continued to work day-to-day business just as I had before.

MADDOW:  So, over those 14 months—I mean, you were still many the Army for a long time while this process was unfolding.  Were there negative incidents, negative reaction of any kind amongst your fellow soldiers once that process started?

HOPKINS:  Really, no.  My experiences with my chain of command and my bosses and the peers that I worked directly with was really—actually quite outstanding.  They‘re professional.  We worked in an element of mutual respect, which is exactly as it existed before I was outed about 14 months ago.

I‘ve talked to people that used to be in my infantry company, you know, some of whom may have assumed that I was gay beforehand because there‘s not too many unmarried captains and commanders in the Army.  And even then, they assumed that when I was in the unit, that maybe he‘s gay but he‘s a good commander, is exactly what they‘ve said.  And so, it didn‘t really matter, because what mattered is he took care of us, he trained us for combat, he worked well with all of us.  So, that‘s fundamentally what it came down to.

MADDOW:  I understand that you didn‘t voluntarily come out but somebody else outed you to the Army without asking you to get into any details that you don‘t want to get into.  Is that basically the situation?

HOPKINS:  That‘s basically the situation except for if I take you back 14 months, my battalion commander brought me in, it was the same day that I was announced that I was on promotion for—to “major” a year early, which only a small minority of the Army receives.  At the same time, he said, but also you‘re under investigation for being gay.

It‘s really kind of exemplifies the paradox here that some of the people the Army judges to be among the best also might be taken out by this policy that isn‘t based on your performance but instead on how you were born.

So, when he informed me of that, I talked to my chaplain for a couple hours, just to make sure I was making the right choice, and I walked back into his office, and I told him what the truth was, because essentially I assumed—I came to the conclusion that I‘d lived a government-mandated lie to cover up who I was, to actually have to fib a bit so that I wasn‘t ever telling anybody that I was gay.  And that lie really just had to come to an end.  It was time to just be honest.

That‘s what we‘ve been—we‘re dedicated to from the time we enter West Point all through our military career: duty, honor, country.  The Army values: honor, integrity—they matter.  And I thought that applied here.

MADDOW:  How much did you think of the prospect of the policy being changed—the prospect that if you just held on long enough, the policy might be changed and you might be OK to stay in without lying?

HOPKINS:  I knew that I, and even some of my friends, who I also who are gay have thought a lot about it.  It‘s really just kind of like a survivor mentality to a point.  I mean, you‘re focused mostly on your job, but this is a constant, severe distraction.  It causes you to be paranoid, et cetera.

And so, during that time, you‘re just hoping you can make it through a situation and that nobody is going to find a reason to want to out you or somebody might not find out accidentally and you can just make it until the policy changes—which everybody seems to assume is going to happen in the next year or two.

MADDOW:  Are you—are you angry?  I mean, after giving the Army more than—more than 10 years of your life, after West Point, after three combat tours—I mean, to find yourself a civilian for the first time today, do you feel mad?

HOPKINS:  I don‘t think that‘s the right emotion.  I mean, the bottom line is: I love the Army.  I‘ve always loved the Army, or else I wouldn‘t have spent—I wouldn‘t have spent nine years depriving myself of the ability to have happy personal relationships with others and a reasonably successful personal life and just focused professionally.  Because I loved what I was doing, I thought it was—I thought the people that I did work with were incredible.

So, the Army is just a bunch of people.  It‘s 530,000 people, most of which I would—I enjoy serving with.

So, I can‘t be mad at the Army—although this whole process has gone through its times of devastation initially, a bit of anger and bitterness for a brief period of time, and that‘s best gotten over.  And then going through a period of sadness, that, yes, I‘m getting out, and a degree of understanding and trying to learn from this period of adversity, because given the experience and the negative aspects of this experience, the only thing that can be gotten from it is to learn and to grow.

MADDOW:  What is next for you?

HOPKINS:  After this, I‘ll be—I‘m heading out to Georgetown here in just a few days to study national security policy for a master‘s degree in that.  I expect that—I mean, this whole issue with me leaving the military has kind of left its mark, as well.  So, certainly I‘m going to do what I can to help change the policy, help people see the light that judging people based on their performance is what has always mattered in the military, whether we‘re overturning segregation or integration of women or with this issue.  That‘s what matters to keeping soldiers alive.

So, serving in whatever capacity I can to help along with that, whether it‘s working with groups like Nights Out or Out Serve, a newly formed one, that has quite some potential to have impact—that‘s something that I hope to be involved in because we all care about trying to do the right thing by the soldiers in our military.

MADDOW:  Captain Jonathan Hopkins, fired from the U.S. Army under “don‘t ask, don‘t tell” policy as of yesterday—thank you for your time tonight.  Thank you for your service.

HOPKINS:  Have a good night, Rachel.

MADDOW:  At this point, I‘m sure in certain quarters in Washington, we are being discussed as unseemly for interviewing people whose military careers the commander-in-chief is currently right now ending despite all his professed urgency to the contrary.  I look forward eagerly to the complaints.

There‘s more to come—ahead.


MADDOW:  The Army‘s physical fitness test is a test that I don‘t want to take.  And you probably don‘t want to take it either, but if you are in the Army, you‘re taking it.  It is a blunt, simple, standardized test for the fitness level of anyone in the Army.

Now, the test has three components: how fast can you run two miles; in two minutes, how many push-ups can you do; and in two minutes, how many sit-ups can you do.

For each of those things, the way it works is—for the two-mile run and the sit-ups and the push-ups, you get a score that‘s based on the Army‘s standardized scoring criteria.  The way it works is you get essentially a maximum of 100 points for each of those things.

Here‘s how Cadet Sergeant Katherine Miller did on her Army physical fitness test.  For a 17- to 21-year-old female, you rate the maximum 100 points, the top score, if you can complete a two-mile run in 15:36.  Katie Miller did it in 13:40.  She beat the 100 percent performance time by nearly two minutes.

For push-ups, you reach reached the maximum 100 points, the top score, if in two minutes you can do 42.  Katie Miller did 68.

For sit-ups, you reach the maximum 100 points, the top score, if in two minutes, you can do 78 sit-ups.  Katie Miller did 100.

Which means on the Army physical fitness test, out of a theoretical maximum score of 300 points, Katie Miller scored a 367 -- which you can cuddle up with the next time your self-esteem gets the better of you.

Katie Miller is at West Point.  She‘s due to graduate in the spring of 2012.  She is a graduate of U.S. Army Airborne School already.  Her grade point average is 3.829 out of 4.0.

The subjective judgment of cadet supervisors of her military performance is graded even higher than that.  It is over 3.9.  She is ranked ninth overall in her class of more than 1,100 West Point cadets.

But she will not be graduating from West Point.  She is transferring out.  She‘s leaving for Yale because, she says, the “don‘t ask, don‘t tell” policy means that her integrity has been compromised, which means she is unable to live up to Army values.

Cadet Sergeant Katherine A. Miller submitted her resignation on Monday.  She joins us from West Point now.

Cadet Miller—Katie, thanks very much for joining us.  I appreciate your time.


MADDOW:  Where exactly are you right now?  I can tell you‘re on a webcam, but I can‘t tell where you are.

MILLER:  Well, I‘m staying in a temporary barracks at West Point while I go through my resignation.

MADDOW:  I understand you submitted your resignation earlier this week.  What‘s the process now?  Are you still technically a cadet at this point?

MILLER:  Yes, ma‘am.  I have not officially been out-processed yet. 

So, I remain a cadet at West Point.

MADDOW:  You wrote in your resignation statement, which I read today, “I have created a heterosexual dating history to recruit to fellow cadets when they inquire.  I‘ve endured sexual harassment for fear of being accused as a lesbian by rejecting or reporting these events.  I‘ve lied to my classmates and compromised my integrity and my identity by adhering to existing military policy.”

When you submitted that resignation, what was the reaction from your chain of command?


DON‘T TELL:  Well, actually, my chain of command was initially very supportive.  My TAC officer, the first level of my chain of command, was extremely supportive.  He maintained professionalism throughout the entire time and made it clear he was here to help me and that he was going to accept my resignation. 

Also, when I went to the next higher-up, my regimental tactical officer, he accepted my resignation, though he was wary of my intentions. 

MADDOW:  Wary of your intentions in the sense that he wasn‘t sure that you were resigning for the reasons you said you were resigning? 

MILLER:  He wasn‘t sure that was a good enough reason to resign.  So I was scrutinized a little bit for that.  But beyond that, they‘ve been very supportive and professional the entire time. 

MADDOW:  When you described the compromise to your integrity by adhering to existing military policy, when you describe what it‘s been like to essentially be - to be at West Point with this policy in place in the military, why did that become unsustainable or unbearable for you?  Why did you feel that you had to resign?  What drove the timing for you? 

MILLER:  Well, what‘s interesting - because your first two years at West Point, you can actually resign at any time without owing the Army any sort of commitment or any sort of recruitment afterward. 

However, upon starting your third year, a contract must be signed essentially committing yourself for 10 years to the military.  And for the first two years, I was just sort of learning about - learning about myself and not really understanding the repression that I was feeling.

And then now that it‘s come down time to make the decision, I‘m going on my third year, I can‘t bring myself to sign on the dotted line, to commit myself to the military for 10 years while the policy remains in place. 

MADDOW:  You obviously knew about the Don‘t Ask, Don‘t Tell policy when you applied to West Point in the first place.  You described sort of a couple years of personal growth, development of your own personal standing over those couple of years. 

But when you entered West Point, did you think that Don‘t Ask, Don‘t Tell would be repealed by now or that even if it was still in place that you‘d be able to endure it? 

MILLER:  Before high school I was very much in the closet.  I had to come to terms with myself until high school.  But around that same time I knew that I really wanted to go to West Point and I really wanted to serve my country. 

And I was able to put my - personal aspects of my identity in the backseat, that being my sexuality, so I could fulfill these wishes.  But being re-closeted has been a much bigger challenge than I ever anticipated.  It‘s taken a much bigger toll socially, mentally, emotionally than I could have imagined.  And I completely underestimated this when I decided to enter into the military. 

MADDOW:  If the policy were repealed - if the policy were repealed either anytime soon or in the next few years, would you consider rejoining the Army? 

MILLER:  Absolutely.  I‘m actually really committed to military service and it‘s something that‘s near and dear to my heart.  And should Don‘t Ask, Don‘t Tell be repealed soon, I would definitely consider returning to West Point.  Or if it‘s not repealed that soon, to commission via a different source and serve my country as an officer in the United States Army. 

MADDOW:  Cadet Katie Miller, top 10 West Point cadet who‘s going to be attending Yale next year on scholarship, thank you for being here and good luck through what, I‘m sure, is a pretty traumatic process at this point.  Thanks for talking to us tonight.

MILLER:  Thank you for having me, ma‘am. 

MADDOW:  So the White House has made it clear this week that they are mystified - mystified by liberals not being more happy with them.  Mystified.  It‘s crazy.  Liberals ought to be drug tested.  What do they have to complain about?  We have more ahead. 


MADDOW:  It has been 17 years since the policy of kicking people out of the military for being gay has been codified under the weirdly named Don‘t Ask, Don‘t Tell policy, in which people who neither ask nor tell get kicked out anyway. 

In those 17 years people have fought the policy with a lot of different approaches.  People have protested.  People have organized legal defense groups for members of the military who are facing getting kicked out.  Folks have made it into a campaign issue in all sorts of different levels of campaigns. 

People have even elected people to very high office - very, very, very high office - in fact, who have pledged to scrap the policy. 


BARACK OBAMA, UNITED STATES PRESIDENT:  I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. 

UNIDENTIFIED FEMALE:  You spoke with President Obama today.  What did you tell him? 


basically told him that I was currently being discharged under Don‘t Ask, Don‘t Tell.  And I told him the situation for me was urgent and I needed his help. 

UNIDENTIFIED FEMALE:  And were you satisfied with the answer you got from the president? 

FEHRENBACH:  He looked me right in the eye, and he said, “We‘re going to get this done.”


MADDOW:  For all of those strategies, for all of those promises, the policy is still in place.  People are still getting fired today, this week. 

Now, after patiently twisting in the wind for about two long years while supposed leadership against this policy limps toward a less-than-certain result, the highest ranking person in America who is facing getting fired under this policy today made a dramatic and aggressive last-ditch move to stop it, to stop it for him and to stop it for everyone.  We have that story exclusively tonight on this show.  It‘s next.


MADDOW:  Here‘s the way it works now.  If you are a U.S. Air Force pilot getting fired by your commander in chief, Barack Obama, from the military under the “don‘t ask, don‘t tell” policy, here‘s how it works.  Whether somebody outs you or you out yourself, whether the accusation is true or not, your case goes to a review board.  That review board makes a recommendation on whether or not you should be fired, and if you are a particularly high-ranking person being fired from the military by Barack Obama because you are gay, that recommendation will go to, if you‘re in the Air Force, it will go to the Office of the Secretary of the Air Force. 

At that point, once the recommendation is received, the clock starts ticking.  There‘s a ten-day period, a ten-day window for one of three things to happen.  The secretary of the Air Force can reject the review board recommendation and say, no, actually this person is going to stay in, we are not going to separate them from the military because of this policy.  That‘s one option.  Or, the secretary of the Air Force could accept the recommendation and say, yes, all right, we‘re going to kick that person out.  Or, the secretary of the Air Force could do nothing, in which case the review board decision stands and the person still gets kicked out. 

That ten-day ticking time bomb has been tick, tick, ticking since at least a week ago now for Lieutenant Colonel Victor Fehrenbach.  He and his lawyers learned that that review board recommendation was at the office of the secretary of the Air Force last Wednesday.  We don‘t know exactly when it was sent there and when the ten-day ticking started, but we know we‘re well into it.  And that means unless drastic action is taken, Lieutenant Colonel Victor Fehrenbach is in his last day or two of his decorated 19-year military career. 

But like he has told us multiple times on this show, he is fighting back, this time with a legal case to try to block the Air Force from firing him. It‘s on the front page of the “New York Times” web site right now. 

Joining us now in his first TV interview since filing his lawsuit is Lieutenant Colonel Victor Fehrenbach, and he‘s appearing for the first time on this show with a lawyer.  His lawyer is Drew Woodmansee.

Gentlemen, thanks very much for joining us tonight. 

FEHRENBACH:  Thank you, Rachel. 


MADDOW:  Colonel Fehrenbach, let me start with you.  I know you received word last Wednesday that your case had been sent to the secretary of the Air Force with a recommendation.  Is it your understanding that that means the recommendation is almost surely that you should be separated from the military? 

FEHRENBACH:  That is our understanding, Rachel, because the way the regulation reads, if the personnel review board decided to retain me, then there‘d be no reason for my case to be forwarded to the secretary of the Air Force.  The only reason it would be forwarded to the secretary was if the recommendation was for a discharge, so that he can either, like you mentioned, agree with that action by signing off on it, or just letting it happen on its own, or he could do the right thing and apply the new enforcement standards and retain me, which we still hope is the case. 

MADDOW:  And by applying the new standards, those reflect the new restrictive interpretation of “don‘t ask, don‘t tell” implemented by Secretary Gates, and you believe that that—that interpretation of the “don‘t ask, don‘t tell” rule should have excluded you from being fired in this case. 

FEHRENBACH:  Absolutely, Rachel.  And when the secretary announced these new standards in March, he said that they did apply to open cases, and my case is still open to this date.  And those—each one of those factors that he announced applies to my case.  And if they don‘t apply to my case, then, Rachel, they don‘t—they don‘t apply to any case. 

So we hope they do take this opportunity to apply those new enforcement standards, and also, as my lawyer will talk about, the Witt standard, which is the law of the land in the Ninth Circuit, we hope they take the opportunity to follow the law and to follow the new enforcement standards that they themselves announced. 

MADDOW:  Well, Drew, let me ask you about that with the Witt standard.  I mean, what‘s going on right now legally is that “don‘t ask, don‘t tell” has been in place for 17 years.  Its expected repeal is coming through the policy process, not through the courts.  What is it that makes you think Victor, Colonel Fehrenbach, has a shot at stopping this policy legally? 

WOODMANSEE:  Well, Rachel, part of it has to do with the man‘s extraordinary record.  The man is a war hero.  He‘s been recognized by the Air Force as a war hero.  And his service record is so extraordinary that the Air Force has zero evidence in the record that would warrant discharging him under “don‘t ask, don‘t tell.” 

The Witt case that Lieutenant Colonel Fehrenbach just referred to was decided in 2008 by the Ninth Circuit.  Prior to the Witt case, the burden was on the service member to show that his remaining in the Air Force was not a detriment to morale, good order, and cohesion of the unit.  Now, after Witt, the burden is on the Air Force to come forward with evidence and to meet its heavy burden of proof to show that retaining him would, in fact, harm morale, would actually harm the unit.  And the evidence in the record is quite clear that retaining him is great for the unit, it‘s great for the Air Force. 

His 2010 officer performance report from February 2010 specifically said that he, quote, “raised morale.”  And when you apply the Witt standard and against that record, it is clear that he should not be discharged under this policy. 

MADDOW:  Drew, what do you think is the likelihood that a federal judge will step in and actually injunct the government from separating Victor from service at this point?  They would have to actually stop the government, stop the military from doing something it seems like it is steamrolling toward doing. 

WOODMANSEE:  Rachel, it‘s always hard to give percentages on these things, and it‘s hard to predict with certainty.  However, I have great faith in the court system in this country.  When an objective member of the judiciary takes a look at this with a fresh eye, in light of the Witt standard and in light of this man‘s extraordinary record of service to this country, I‘m highly optimistic that we‘ll get some relief, and at least have a window of opportunity where the status quo is preserved until a full hearing can be held on this, with all the evidence that the court wishes to hear, so the court can make a determination on a full record.  But we are asking the court in the meantime to preserve the status quo, to allow him to continue to serve his country until a full hearing can be had.

MADDOW:  Well, Colonel Fehrenbach, the last time that you were here on this show, you said that you and your legal team had tried to arrange essentially a meeting between you and the review board, so that you could make your case.  But that request was denied.  What would you have wanted to say to them if they had given you that chance to defend yourself and your record? 

FEHRENBACH:  Just as Drew alluded to, Rachel, to present my record, but then also again to stress to them that certain aspects of the law as it stood, you know, when I went to my review board, they were not followed by the Air Force.  And certainly the new enforcement standards apply as well as the Witt standard. 

You know, even before my first discharge board in April of 2009, we actually had a preliminary board hearing and we asked the Air Force to use the Witt standard in my case, and they refused that request.  And, in fact, when it came to that one prong of the policy that said, you know, whether I was detrimental to good order, discipline, morale and unit cohesion, the Air Force proved nothing.  They brought nothing to that discharge board.  All they said was the law states that as fact, and that presumption the law is based on is false. 

So I hope that if we‘re successful in this injunction, we don‘t just help my career where I‘m able to deploy again and to serve 20 or more years—because that‘s all I wanted to do these last 23 years is to serve my country—we hope this helps other pending cases and other cases that fall under these new enforcement standards.  We hope to help everyone out there that is going through this process right now. 

MADDOW:  Victor, nobody right now says—nobody will argue with the sort of outlook that “don‘t ask, don‘t tell” is on its way toward being repealed.  We know what that process would look like in Washington.  We understand that that process is essentially rolling toward completion.  Certainly other things could happen, but everybody believes the policy is on its way toward being repealed.  The president personally looked you in the eye and told you that this would get done.  Do you think it is conceivable, from your experience in the Air Force, your experience in the military all this time, would it be impossible for the president to just stop implementation of the policy, to hold implementation of the policy until the repeal process can be completed?  Couldn‘t he just do that? 

FEHRENBACH:  I have read several reports that said he could, using an executive order.  He could also use stop-loss procedures.  But what the Service Members Legal Defense Network and other organizations are promoting is that we do need to change the “don‘t ask, don‘t tell.”  This law was enacted by Congress, and the only way to get permanent change and a permanent solution is for Congress to repeal this law. 

But that doesn‘t mean that we don‘t need presidential leadership and courage here.  We definitely need the president to step forward and to lead this fight to end this discrimination, this unconstitutional law.  

MADDOW:  Lieutenant Colonel Victor Fehrenbach and attorney Drew Woodmansee.  Thank you for joining us this evening.  I understand that time is of the essence and things may happen very quickly right now, both in the case and in the proceedings with the possible discharge.  Please, keep us posted on the outcome, you guys, thank you.

FEHRENBACH:  Thanks, Rachel.

WOODMANSEE:  Absolutely.

FEHRENBACH:  If I could just add, it‘s my mother‘s birthday today, and I just want to tell her happy birthday, and thanks for all the love and support.  And I love her and I wish I could be there to celebrate with her.


MADDOW:  As if people didn‘t love you enough already, Victor, really?  You had to put the cherry on top like that? 


MADDOW:  Thank you, and happy birthday to Victor‘s mom. 

Appreciate you guys.  Thank you.

WOODMANSEE:  Thank you, Rachel.

MADDOW:  Coming up on “COUNTDOWN,” the right-wing freak-out over Muslim Americans having the same religious freedom as anyone else in this country. 

And coming up on this show, a modest proposal.  It‘s at least a proposal.  That‘s next.



ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  I think those are accomplishments that we all should be proud of regardless of whether it encompasses 100 percent of what we had wanted to begin with.

UNIDENTIFIED FEMALE:  What about the rest of that‘s outstanding - gay

rights, Guantanamo -

GIBBS:  These are all of the things that the president made commitments on and is focused on doing.  We have a process underway with the Pentagon to make changes that the president outlined in the campaign, and, quite frankly, before the campaign, with Don‘t Ask, Don‘t Tell, as somebody running for the U.S. Senate in 2004.  We have a process to make good on overturning Don‘t Ask, Don‘t Tell. 

UNIDENTIFIED FEMALE:  What do you say to progressives who, on reading your comments yesterday, say, “If that is their attitude, I‘m staying home in November?”

GIBBS:  I don‘t think they will because I think what is at stake in November is too important to do that.  


MADDOW:  On tonight‘s show, you have met U.S. Army Captain Jonathan Hopkins, U.S. Military Academy Cdt. Sgt. Katherine Miller and U.S. Air Force Lt. Col. Victor Fehrenbach, all of whom are having their careers ended right now.

The $25 million that you and I, the taxpayers, have spent on Victor Fehrenbach‘s training as an F-15 fighter pilot - that‘s down the tubes.  That‘s over.  The decade of investment that you and I paid for that built Jonathan J. Hopkins into a striker brigade combat team commander - that‘s down the tubes.  That‘s over. 

The $350,000 per cadet training investment that you and I made in building Cdt. Sgt. Katie Miller into a top 10 at West Point, Yale-caliber scholar who could also bench press you, if need be, in a pinch - that‘s down the tube.  That is over. 

None of those three men and woman wants it to be over.  They want to serve, that‘s why they signed up.  But as we take our time winding down this policy that everyone says will be ending, as we shamble toward justice maybe. we as a country are, meanwhile, continuing to put the lives of these individuals through the meat grinder every day.

Col. Fehrenbach has filed his lawsuit because his legal team thinks his discharge orders are due at any minute.  Capt. Hopkins was discharged this week. 

Cdt. Sgt. Miller‘s resignation was processed - it was being processed this week on the sole basis of the continued enforcement of the this policy, this policy that everyone says it is going to end when they get around to it maybe early next year. 

There‘s a process.   What‘s the rush?  Why are we kicking people out now, in the meantime, while we are waiting for the views of the commander-in-chief and the defense secretary and the chairman of the joint chiefs-of-staff to be implemented? 

If you are changing the policy soon, why not hold off the ruination of lives under the policy now, in the meantime?  Why not do that?  I‘ll tell you why.  Because that would take some political capital.  That would take some guts. 

And liberals, according to this White House, ought to be drug tested if we‘re expecting to see that from this White House right now.  Stop complaining and be happy for what you have. 

Lt. Dan Choi, Col. Fehrenbach and Capt. Hopkins and Cdt. Sgt.  Miller - they are expendable, because doing what it would take to save them would be hard.  So go ahead and watch their careers destroyed but stop complaining about it. 

I talked at the top of the show tonight with Gail Collins about how one way to motivate your natural base for an election is fear, to make your base afraid of what the other side has to offer.  And that is true.  That works.  That works on both sides. 

It works for conservatives about liberals and it works for liberals about conservatives.  But one other way, one, frankly, less soul-sucking way to motivate your base and to win an election and to keep winning elections and to, frankly, have history look kindly upon you is to get your base to cheer for you, not just to cheer against someone else, to see you standing up, not just to bad guys with worse ideas than you, but you standing up for what is right because you know it is right, because we know you know it‘s right, even though you also know standing up for it is hard. 

That is how you regain the enthusiasm of your base.  That is how you win the respect of your base.  That is how you win the respect of the country.  And admit it, that is how you win your own self-respect, too. 

If Don‘t Ask, Don‘t Tell is going to end, the president could stop enforcement of the policy pending that change.  Why isn‘t he?

That does it for us tonight.  We will see you again tomorrow night.  “COUNTDOWN WITH KEITH OLBERMANN” starts right now.  Good night. 



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