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'Up w/Chris Hayes' for Sunday, January 13th, 2013

Read the transcript to the Sunday show

January 13, 2013

Guests: Tara McGuinness, John McWhorter, Amy Goodman, Eli Lake, Chris Anders, Dave Zirin, Michael Brendan Dougherty

CHRIS HAYES, MSNBC ANCHOR: Good morning from York, I`m Chris Hayes. The
country will see more extreme weather today. In the east, highs are
expected to be in the 50s. On the West coast, temperatures are expected to
be near freezing and severe storms are threatening the Mississippi and Ohio
River valleys with flooding. And in Egypt this morning, the court has
ordered a retrial for former President Hosni Mubarak.

Right now I`m joined by MSNBC contributor, Joy Reid, managing editor of our
sister Website Tara McGuinness, executive director of the
Center for American Progress Action Fund, John McWhorter, my friend,
professor of linguistics and American Studies at Columbia University,
contributing editor at "The New Republic" and columnist at the "New York
Daily News" and Amy Goodman, author of "The Silenced Majority: The Stories
of Uprisings, Occupations, Resistance and Help, and, of course, host of
"Democracy Now."

This week President Obama announced three Cabinet nominations, all white
men. The five announced departures from his Cabinet, which as of Wednesday
include Labor Secretary Hilda Solis, the first Latino to serve in the
Cabinet. Only two are males. The appointments have called into question
the president`s commitment to Cabinet diversity in his second term,
concerns further heightened by a picture run in "The New York Times" on
Tuesday, showing President Obama last month in the Oval Office surrounded
by his closest advisers discussing fiscal cliff negotiations.

You noticed only one out of 11 is a woman, senior advisor Valerie Jarrett
whose leg is barely visible. Oh, nice we have this photo illustration
there. That picture is not fully illustrative of the president`s record.
According to the "New York Times" about 43 percent of Mr. Obama`s
appointees have been women. That is roughly the same as Clinton and one-
third more than George W. Bush. He`s also nominated female judges at twice
the rate of President Bush and more women, minority and gay judges than any
previous president has. On Wednesday, White House Press Secretary Jay
Carney defended the president`s record.


JAY CARNEY, WHITE HOUSE PRESS SECRETARY: The president`s senior staff here
is well -- women are well represented in the president`s senior staff here.
Two of the three deputies, deputy chiefs of staff are women. The White
House counsel is a woman. A woman runs Homeland Security for this country.
Secretary Napolitano. There are, you know, there`s -- the Cabinet
Secretary in charge of the most important piece of domestic policy
legislation in the generation is a woman, Kathleen Sebelius. This
president is committed to diversity and look at the record. It is a vast


HAYES: I am of two minds about this story. One, is that this was kind of
trolling and a little bit of a trap to initiate a conversation that I
thought was overblown. Well, here is what I`m saying, the photo spoke, it
was such a powerful photo that it ended up sort of dominating the actual
content of the article that was below the photo, which actually said, look,
this is one-third better than the previous administration, about equal with
Bill Clinton, and there are some deep problems in the pipeline.

At the same time, I think also, there`s that photo is not nothing. I mean,
it says something about what the inner circle is. So I`m curious what you
guys think about invented issue or real issue? Tara.

important that we`re having this discussion, but I think it`s way more
complicated than the photo. We`ve had a year of photos. There`s another
photo of a bunch of people have been sworn in to speak in Congress about
birth control, none of whom were women, so I think we`re sensitized to this
conversation. But I think fundamentally what`s interesting is why we`re
having it and a little bit deeper about what it means for what comes next.
One out of every three people who voted in this election were women who
voted for Obama. You know, we had a discussion about binders of women.
We`re having this discussion about the Cabinet largely because of how we
got here. And I think, you know, the personal matters, but what that means
for the policy actually, it would be a much more interesting conversation.

HAYES: Yeah, I think part of the reason, right, was this -- we`ll play a
little bit of the binders for women. Because that became as kind of tag
line after -- after Mitt Romney told that story in one of the debates.
Take a look.


don`t have to collect a bunch of binders to find qualified, talented,
driven young women.


JOE BIDEN, U.S. VICE PRESIDENT: Oh, the idea to go and ask where a
qualified woman was ...


BIDEN: He should come in my house.


BIDEN: He didn`t need a binder.


HAYES: What does that mean? What does that mean? Why is Joe Biden hiding
qualified women in his house?


HAYES: So confused.

MCGUINNESS: What`s better than Joe Biden. Come on.

JOY REID, MSNBC CONTRIBUTOR: Just you know what -- it`s funny, because
this has been an interesting -- I agree. I`m grad we`re talking about it.
And it`s important to talk about it. But that photo had about a dozen
people in it. I mean the reality is there`re 22 members of the Cabinet,
right, and I actually counted this morning, just to be sure, 22 members of
the Cabinet and Cabinet-level positions. Eight of them are women. Another
five are minority men. So it`s not like that photo is exactly
representative of the Cabinet. That`s one thing.

And then the other thing is the groups that are engaged in the clutching of
the pearls on this are number one, Republicans, who, come on, seriously,
they couldn`t even to your point find any women to talk about birth control
and they`re obsessing over women`s reproductive health. And then, of
course, you have the Beltway media, which is not exactly teeming with women
either. So I mean I just think that it is a little bit of trolling.

But, of course, you know, the first term of a president is kind of like
freshman year. You know, you have to surround yourself with the people
that are sort of good for you and (inaudible) things that are good for you.
The second term is like, you know, you`re an upperclassman and you sort of
pick your own roommates, and it does look like, just from those first
three, like he`s picking bros. Like he`s only picking guys. But it`s
because he`s picking three very high profile positions, it`s not the whole

JOHN MCWHORTER, COLUMBIA UNIVERSITY: I think -- generally, I`m a little
skeptical of a value of what we these days call conversations with a
capital "c." Because often it seems to be ...


MCWHORTER: .. agenda, but in this case I think it`s important.

HAYES: My whole show is founded on the premise of that. But, you know,
the need to question ...


MCWHORTER: We have to talk about it when really we`re talking about, you
know, censoring somebody for their moral views. But in this case, although
I think if we looked 50 years ago with the Obama administration it would be
very hard to say that Obama had some sort of woman problem. Nevertheless,
the fact is, that we do need to keep in mind especially at this pivotal
time that to the extent that there`s a problem here with women, such as
many news stories saying women being, perhaps, more reluctant to take jobs
that require longer hours, and we`ve seen Anne Marie Slaughter article
about that. I think that we do need to keep that in mind. And I think you
and I both, as fathers of young children, see how difficult it can be to do
anything after 5:00 p.m.

HAYES: Yeah.

MCWHORTER: If you`re concerned with a child to the extent that burden
tends to fall disproportionately on women. That`s something that we do
need to keep having that conversation about it, and so I`m glad to see that
come up this week.

AMY GOODMAN, DEMOCRACYNOW.ORG: Oh, we also have to talk about diversity of
political opinion. On the issue of women, go back to the beginning of
President Obama`s first term. Large group of women, leaders, within his
Cabinet and within the White House gather with him to say, we may be here,
but we want to be heard.

HAYES: Right.

GOODMAN: There was an uprising at the very beginning. And then now, look
at who`s leaving. Hilda Solis, the Department of Labor, first Latino
secretary of labor, extremely progressive. Looking at ...

HAYES: Lisa Jackson of the EPA as well.

GOODMAN: Lisa Jackson who may well be leaving among other issues ...

HAYES: Right.

GOODMAN: ... because of Keystone XL. We don`t know where Obama is going
to come down on that, but the pipeline that would bring dirty oil from
Canada down to the Gulf of Mexico that goes to the whole issue of climate
change, so you`re losing very -- not only women, but very progressive
people and what is replacing them. Well, just in the bigger picture you
are talking about Jack Lew, Jacob Lew who, you know, very much follows in
Timothy Geithner`s footsteps and people are asking very serious questions
about him and we`ll talk about accountability. Looking at John Brennan.

HAYES: Right.

GOODMAN: And what it means for him to head the CIA. The man who came out
of the Bush administration, identified with they call it enhanced
interrogation techniques. One might call it torture. Drone attacks.
These are the serious issues that have to be looked at diversity and

HAYES: I think -- yeah.

MCGUINNESS: I think -- and you raise a really good point of also about
which seats women are in.


MCGUINNESS: You know, there are three seats that have never been held by
women as Treasury Secretary, Defense Secretary and Veterans` Affairs and
you think about back to that photo, the fiscal cliff conversation that
where women are sitting, the very first woman ever appointed, was the Labor
Secretary. We have a good history of having women in the labor position.
What about, you know, Treasury Secretary, and what about defense? What
difference would this really make in our conversation? So where they`re
sitting I think really matters.

HAYES: Yeah, and I think one of the things that this issue brings up -- so
there`s -- there`s the idea of just kind of disingenuous attacks, I think,
from Republicans on this. Which have been interesting to me because I
tweeted out the photo of "The Times" photo, which I thought -- it was
really a pretty arresting photo, right, I mean. That I had had the good
fortune of coming up in the world of like lefty media that I don`t -- I
can`t recall being in a meeting with 11 men and one woman. And I don`t
think as a general rule that`s a good idea in any case for anything other
than maybe an NFL football team. Like I don`t understand why that would --
we would have a meeting where that was the case.

But I tweeted it out and it got re-tweeted by a bunch of conservatives
being like, ha, ha, you women of America, you`ve been punked by this
administration. And here`s -- here`s Governor Mike Huckabee kind of doing
like his absolute best at this kind of concern trolling. Take a look.


FMR. GOV. MIKE HUCKABEE (R ) ARKANSAS: You remember back during the
Democratic convention how he accused the Republicans of waging a war on
women? And he made the Democratic convention mostly about abortion and
free contraceptives. And a lot of women must have believed it because he
got 55 percent of the female vote, Mitt Romney, 44 percent. But now a lot
of those females who supported Barack Obama are scratching their heads and
they`re saying, whoa, how come there`s so much testosterone in the Obama
Cabinet and so little estrogen? Give them contraceptives and abortions,
but don`t worry about positions of authority. They shouldn`t be asking for
such things.


HAYES: Well, that seems like a fair and reasonable attack. We`ll talk
about that clip right after we take a break.


HAYES: John McWhorter, your response to Mike Huckabee on estrogen?

MCWHORTER: I think that the main thing I would think of is that unless we
think Obama was being cynical about this and I`m not aware of anybody who
does, he did put himself on the line to try to have what would have been in
this photograph, a person, Susan Rice, who is one, black, two, a woman, and
three, unrelated to either one of those things, not somebody who was
exactly known for having the most butter smooth personality in terms of
getting along with people. There`s a kind of Larry Summers abrasiveness
aspect to her, and yet the idea was that she was going to be secretary of
state. He meant it. That didn`t work out, but it`s hard for me to forget
that in terms of what`s going on now. So I think it`s a ridiculous charge
just because of Rice alone.

REID: And by the way, when she was put forward and we don`t know if she
was the first pick, but when she was put forward she was immediately
attacked and attacked in the most debasing terms by people like John McCain
who basically went right to saying, she`s not smart enough ...


REID: And you now, really attacked her in such an ugly way that I think
it`s ironic that anyone from that party having seen and witnessed and
participated in that would then try to turn the charge around on the

MCGUINNESS: But then I think -- I think ...

HAYES: So there`s an interesting question here, I think, which is -- who
has standing to make this claim? Which I think ends up being the kind of
second beat of the conversation because I`ve seen people respond to and I
think, completely legitimately respond to it by being like, you know, the
White House press corps. Hello? Have you seen the White House press
corps? White House press corps and white men and white men and white men
and some women.

GOODMAN: The operative word, the first word, the White House press corps.

HAYES: Yes, exactly. The White House press corps. And I mean -- and
media broadly is, you know, is incredibly male and incredibly white. And
so the question is -- who has the standing to make the claim? And I think
people -- there`s some kind of understandable resistance to anyone
attacking the White House, but then at the same time, it also seems like
that`s kind of a cop-out, right? It`s the president of the United States
and this stuff does matter if we are committed to diversity across these
like various metrics, gender and race and also diversity of viewpoint,
diversity like you are saying, just during the break, in terms of people
and where they`re coming from a class perspective.

MCGUINNESS: I think it`s really interesting not only to think about this
in the space of Cabinet appointments. The media, which is writing about
it, is one piece, the business world is woefully behind basically
everywhere. You know, religious institutions that fundamentally, I think,
if we`re going to make change in this space we are going to need to make it
across the board. And that it`s telling and that there`s an interaction of
these different groups.

HAYES: But then there`s this resistance to how that`s done. I mean the
deep question is - OK if we all say this is a goal and I think there`s a
broad, social consensus that it should be a goal, the breakdown comes along
implementing it, right? And when you get into this - this I thought, this
was very interesting interaction that our -- one of our second producers
found. This is back in Clinton -- Bill Clinton facing the exact same kind
of charge and railing to Andrea Mitchell against the "bean counters" who
were, essentially, auditing his diversity record. Take a look.


president`s staff and Cabinet ought to look like America. I think it ought
to look like America.

UNIDENTIFIED FEMALE: Today Clinton rejected complaints from women`s groups
that he hasn`t delivered.

CLINTON: People who are doing this talking are by and large are talking
about quotas and I don`t believe in quotas. And they are checking on

UNIDENTIFIED FEMALE: He was visibly angry that critics are ignoring sub-
Cabinet appointees who are female.

CLINTON: And they would have been counted those positions against our
administration, those bean counters who are doing that, if I had appointed
white men to those positions, and you know that`s true.


MCWHORTER: Well, a question that we have to ask here is -- if we want to
solve this problem, and I think we all do, are we talking about combating
what`s called "sexism?" For example, is the reason the White House press
corps has a certain problem with balance of types of people because they`re
people who think that women aren`t as capable and therefore, the women
don`t get the jobs? If that`s part of it, how much of a part, and then how
much of it is a matter of combating aspects of society which may be
remnants of sexism along time ago or a longish time ago, but are now just
settled in such as the way companies have policies for childcare et cetera.
And that -- those are tough questions to answer. I don`t know if we can be
scientific about it.

REID: Right. But isn`t it also a pipeline issue, too? Because if you
think about where Treasury secretaries come from, right, and you have to go
back a lot further than the president`s pick. You have to go back to a lot
of these guys come from Wall Street, they come out of the Federal Reserve
system. How many women and minorities are in that pipeline? Or you look
at defense, you know, Michelle Flournoy, who was sort of the front runner,
a lot of people had a lot invested in her getting the defense seat, but she
is mostly a technocrat, right? So the idea that we were going to try to
for the first time have someone who`s been in combat, somebody who enlisted
in Vietnam, you know, you go back to Chuck Hagel and from that standpoint
he is providing that diversity. Are women getting the opportunities to
move in the military to where they would be even in a position to take that
job? So I think we also have to address issues of pipeline. It`s not --
it doesn`t start at the presidential appointments.

MCWHORTER: But the question is still why are women not in the pipeline?
What can be done about it in the present tense to fix it? And those
questions are just always difficult to answer and sometimes, difficult to
talk about, is what I thought -- that`s interesting.

HAYES: Yeah, and I also think there`s this kind of social network
question. And I think in some ways that gets to be - that`s where the real
issue is here. Because there`s two questions about a, how should we be
measuring this, right? So, all of the appointments, right, all of the
Cabinet level appointments, who`s in his inner circle because I think once
you get to that last thing about who is in his inner circle, it is a very
male inner circle. I don`t think there`s ...

REID: Valerie Jarrett.

HAYES: Except for Valerie Jarrett. But it is, you know.


HAYES: It is a largely male inner circle. I don`t think anyone would
bring ...


HAYES: And so -- and so, the question that becomes like, who -- having
lived in Washington and watch this operate and my wife worked in the White
House, you know, so much of Washington operates along the kind of spidering
out of these social networks, right? Who knows who.


HAYES: And that`s how this -- that`s how jobs and appointments happen. I
mean, no one`s - you know, there`s not some batch applications coming in
and somebody`s here reading through every application. It`s, oh, I worked
with this person the last time we were in the Clinton, and so, there`s a
lot of vestigial momentum in certain directions of who is going to be
there. And I thought it was really interesting that Charlie Rangel on our
air here basically made this critique. I want to play that clip and get
your response to it right after this.



REP. CHARLIE RANGEL, (D), NEW YORK: It`s embarrassing as hell. I kind of
think there`s no excuse when it`s the second term. If it`s the first term
you can say people had got to know who is around these qualified and what
do you get this job number one. I had thought and maybe it`s so, that it
could be the Harvard problem where people just know each other, trust each
other and women and minorities don`t get a chance to rub elbows and their
reputations and experiences not known. But he`s had four years to work the
bench to work the second team. So that in the second term, these people
should be just as experienced as anybody -- any other American.


GOODMAN: You know it`s interesting, speaking of the Harvard problem,
right? You had Larry Summers who was the president of Harvard who famously
and ultimately was forced out because of his comments that women can`t do
math and science, right? He was the Treasury secretary, then it`s Timothy
Geithner and now we`re just -- the tradition is continuing. But that`s
what equal opportunity is about. You have to go beyond the people you
know. You`ve got to -- and it has to be all over the country. That`s what
job searches are about. Reaching out to people. It`s not just your
comfort zone and that`s going to make a better country. It`s not just for
reasons. It`s very practical when you look at the economy, for example.
It would have been extremely practical to get someone who`s not actually
involved in the economic crisis.

HAYES: Right. Exactly.

REID: But you have to realize, too, that with Charlie Rangel`s critique
the caveat to that is that there`s this long-standing kind of, I won`t call
it bitterness, but sort of separation between the CDC, between the
Congressional Black Caucus members and Barack Obama, because he kind of
stepped outside of the black pipeline. He didn`t play ball with them.


HAYES: And the sort of other version, I wouldn`t call it the "Harvard
problem," I`m just -- the basic social networks. I mean ...

REID: Correct.

HAYES: The entire rise of Barack Obama was in some ways building a
parallel set of networks ...

REID: Exactly.

HAYES: ... to the one that had existed in African-American politics,
particularly in a lot of primary states, that had engendered a lot of
frustration and anger.

REID: Yeah, so whenever they get an opportunity to voice that frustration
they (inaudible).

HAYES: No, but I do think -- I do think the Harvard -- I thought this line
about the Harvard problem was a really interesting and important one, which
is that -- you know, you do see this -- and, you know, I`m Caucasian,
that`s right, I mean I`ve seen this firsthand because I`ve been embedded in
that world. Yeah, people who went to expensive fancy schools together know
each other. People who work together at the same law firm, white shoe law
firm, that pays six figures, know each other and those networks of power
are the networks that in this administration, in the administration before
that, in the administration before that, tended to channel people in and I
don`t know where the alternatives are. I mean one -- one of the
alternatives is the United States military, which actually works as a
fairly good engine of social mobility in terms of getting people through
the ranks that come from all different walks of life, but there isn`t any
kind of civilian version, I think, right now that in American life that`s
producing this kind of inclusive, you know, engine of social mobility to
get people into those sorts of things.

MCWHORTER: Something worries me a little bit about, though, calling it a
network of power. Because even though it is, I think that we`re dealing
also with something that`s human, which is just the birds of a feather.
Not necessarily that you`re thinking, we, who are white and in power, must
keep it among ourselves, the way, for example, white aristocrats did tend
to think 50 years ago. I think it`s really just -- it`s who I know.

REID: Yes, that`s right.

MCWHORTER: It`s who I hang out with. And I don`t think that`s ever going
to change about human beings, and so the answer seems to be that until we
have the diversity that we`re looking for we have to counteract that
natural human tendency and look beyond.

HAYES: And that`s why I think, and we go back to this Clinton quote about
like -- well, how should this be rectified? Right. Everyone hates quotas.
Quotas are bad. Quotas are bad. I think quotas are good. I`m pro-quota.

REID: Yeah.

HAYES: Because I think you actually need --

MCWHORTER: Temporarily.

HAYES: You need them in the same way that -- in the same way that the
format of a haiku poem can produce insight that one would not have
otherwise or any kind of formal constraint actually produces innovation and
creativity. The formal constraint of something like a quota, of actually
going through and auditing and doing the numbers is going to force you ...

REID: Right.

HAYES: ... to be more energetic and inventive and innovative and think
outside of your comfort zone when thinking about staffing.

REID: It`s like the Rooney rule. And this is what had to happen ...

HAYES: Wait a minute. It`s a great idea.

REID: Right?

HAYES: Explain the Rooney rule.

REID: And that what happened if you didn`t have African-Americans rising
to the level of coaching and in the back end, particularly in professional
football and baseball, and a lot of these professional sports leagues there
were just no African-Americans in the back office.

HAYES: And it was incredibly embarrassing optically, in which you have
tons of African-American athletes ...

REID: On the field ...

HAYES: Who are only coached exclusively by white men.

REID: Exactly, so the idea was that whenever a coaching position came up
you had to consider a certain number of African-Americans, of minorities,
before you could make a final selection process, and it did force the
league to become more diverse, and I think and that`s -- and I agree with
you, you do sometimes need to do the bean counting.

MCGUINNESS: I do think that quotas complicate things. I ran a big program
in Nepal to get women in the local government, based on the fact that you
couldn`t be a political party if you didn`t run a certain number of women

HAYES: There are many countries around the world that have ...

MCGUINNESS: Just that (ph) case.

HAYES: ... enshrined quotas.

MCGUINNESS: And these quotas really -- if you look at us compared to many
other countries, really, it can make a difference. I think they`re a means
to an end, they are not an end, and they can be complicated. In the first
round, what people did was they ran their sister or their mother and people
were not trained and it actually, you know, disproved the point that women
could be competent local government leaders. Round two, they trained a
bunch of women, it was different.

But I think there`s this question of, you know, what are we getting at. I
think it`s a way to get us in, but in the end, the outcome is really
different. I think back to the Harvard question, there`s an aspect of it
that`s the network, there`s an aspect that Harvard is very expensive. And
who, you know, what it takes to get into this pipeline adds the whole other
layer, I think part of this comes down to, you know, class. And who`s
being represented in different economic capacities. It`s easier to see the
women and the gender or race in a photo. When it comes to a diversity of
opinion and how that`s really impacting policy, which is where we should be
taking the conversation. There`s a lot of other layers to this in the
Harvard - in the Harvard problem.

HAYES: Right. And you can have one can imagine, I`d say, a national
security team that was multiracial and uniformly neoconservative in its
orientation. And look, I think there`s a question about what -- how do we
tabulates that at the end of the day?

REID: Yeah, there`s sort of a black seat on the Supreme Court. That
doesn`t mean African-Americans are happy with the person sitting in it.
They loved Thurgood Marshall and now we`ve got Clarence Thomas.

MCWHORTER: I mean, I think the question is what we mean by diversity and
diversity of opinion. How we allocate it. Presumably, diversity would
mean diversity of individuals` opinions rather than supposing that people
who fall into a certain category are going to have certain ideas, because
often those ideas might be the ones that we, depending on what we`re, like,
but then there`s the other side of the coin when we might not like them, so
what we are looking for is an individual kind of diversity and that would
include the class kind as well, but that`s hard to do in the present tense
to express that story.

HAYES: And let me say -- and also, I think, the final component is I think
life experience really does matter. Having, you know, having covered
Washington and it`s like, where - and one of the things we try to do at
this table is bring people who have a lot of different life experiences,
you know, served in the Marines or were homeless or are unemployed or are
sociologists because that does matter and produces better thinking when you
have people from various, diverse backgrounds. Tara McGuinness.

GOODMAN: I`ve always felt that if Congress members lost their health care
for a week ...


GOODMAN: ... we would have universal health care in this country, if they


GOODMAN: ... had to deal with taking care of the kids and their family.

HAYES: Tara McGuinness, the Center for American Act -- Progress Action,
I`m really glad to have you at the table, thanks for being here.

Does support for the policies of the Bush war on terror disqualify you to
lead at the CIA? That`s next.


HAYES: This week, President Obama nominated his chief counter-terrorism
adviser, John Brennan to be the next director of the CIA. At first glance
Brennan has the perfect resume for the job. He is a 25 year veteran of the
agency, he speaks fluent Arabic and served as the CIA`s deputy executive
director from 2001 to 2003, director of the Terrorist Threat Integration
Center from 2003 to 2004 and is director of the interim National
Counterterrorism Center from 2004 to 2005. Brennan also seemed to have the
perfect resume in 2008 when his name was floated to head the agency, back
then, however, the absolutely central role he held at the CIA post 9/11 and
his full-throated on the record defense of the Bush era policies of
rendition and enhanced interrogation techniques short of water boarding
which he says is torture, caused genuine outrage. Here`s Brennan in a
2007 interview.


acknowledged that it has detained about 100 terrorists since 9/11 and about
a third have been - have been subjected to what the CIA refers to as
enhanced interrogation tactics and only a small proportion of those have,
in fact, been subjected to the most serious types of enhanced procedure.
There have been a lot of information that has come out from these
interrogation procedures that the agency has, in fact, used against the
real hard-core terrorists. It has saved lives. And let`s not forget,
these are hardened terrorists who have been responsible for 9/11. Who have
shown no remorse at all for the death of 3,000 innocents.


HAYES: In 2008, the backlash against Brennan was so strong he withdrew his
name from consideration saying, it has been immaterial to the critics that
I`ve been a strong opponent of many of the policies of the Bush
administration such as the preemptive war in Iraq and coercive
interrogation tactics to include waterboarding. He was instead appointed
to be the president`s chief counterterrorism adviser and this will -- he`s
been described by many as the architect of Obama`s signature war on terror
policy. Targeted killing, largely through drone strikes.

Four years later, the concerns about having Brennan head the CIA are muted
and we can only hope the confirmation process will bring the necessary
accounting of his role in not only President Bush`s war on terror, but in
President Obama`s as well. Joining me now is Eli Lake, senior national
security reporter from "Newsweek" and "The Daily Beast." And Chris Anders,
senior legislative council of the ACLU Washington, D.C legislative office.
Great to have you both here.

UNIDENTIFIED MALE: Great. Thanks for having me.

HAYES: Eli, from the -- I guess from the perspective of the universe of
the security folks and let me say this before I start the conversation, I
really wanted to have CIA people at the table today, and we basically
couldn`t get it done, because in order to speak about this stuff, they have
to get clearance with the agency, and they said there was a backlog. So,
we were trying very desperately, and our incredibly diligent booking
producers were trying to get CIA people, because I think the institutional
bureaucratic perspective on this is really important. And let me just
express my frustration with the fact that we can`t have them here, A. And
B, that all these conversations happen shrouded behind secrecy.

So, we are going to have this conversation, there is all this secret
information we don`t have access to, and that`s massively frustrating from
the perspective of a democratic citizen.

So that said, Eli, where do you think folks around the sort of security
apparatus, the kind of front line officers, the civil servants from the
CIA, where do you think they are on this question of both Brennan and the
legacy of the Bush years and the torture regime, in terms of how they think
about it?

ELI LAKE, THE DAILYBEAST.COM: It`s hard for me to give you a kind of
universal ...

HAYES: Right. Sure.

LAKE: ... this is what everybody in the CIA thinks. But I think that
there`s clearly a sense that when there was a question or a potential for
legal action in some capacity against CIA officers even if personally I
know that there are plenty of CIA officers who disagreed with these
enhanced interrogation techniques, but they felt that it was way too far
that they were basically being asked to do something for their country and
then potentially would have -- many of them have had to take out insurance
plans, because they thought that they would be sued in some capacity as
well. So that was something that I think was a bullet that somewhat
dodged, but no, really, that`s Leon Panetta who takes over as the director
of the agency and then becomes its biggest advocate and eventually the
Justice Department`s re-review of those cases and that issue has largely
sort of subsided. I think Brennan probably ...

HAYES: Subsided meaning the Justice Department just says, we`re not going
to prosecute anyone?

LAKE: Well, I - I mean what I gather and I guess (inaudible) is that they
looked into it and they decided not to go forward or re-open any of these
particular cases. But that, I know, was a huge issue and that really does
get to the whole functionality of the agency. If you have officers who
think that when they`re told to do something -- I mean, the CIA, keep in
mind, it breaks the law internationally.

HAYES: Right.

LAKE: ... espionage is against the law in other countries. So, if you ask
someone to break the law and then you tell them that they could facing
consequences later on, I mean how you are going to have a functioning ...

HAYES: We should know that there`s a distinction between break a law in
another country and breaking the law in the U.S.

LAKE: I agree. I agree, but the point is, is that, you know, the CIA has
a legacy of breaking lots of laws ...


LAKE: ... in order to kind of do what`s sometimes called "directed
action," which is a euphemism for things like coups and assassination plots
and other things like that. And, you know, there`s a legitimate question,
will CIA officers be held accountable in the courts later on for following

HAYES: What do we know about - first of all, I guess, I would ask you -
how germane do you think John Brennan`s record in the CIA during the Bush
years is to his - his appointment?

CHRIS ANDERS, ACLU: I think it`s very germane. And if you look at --
during the Bush administration, there were about a dozen officials who are
sent by the Bush administration to the Senate for basically, promotions.
For better jobs. And looking for Senate confirmations of them. The
Senate, with the exception of Alberto Gonzales, I think rejected every
single one of them or they withdrew on their own. And they had records and
in some cases, I think they probably were less - less extensive than what
John Brennan has. So, this Senate -- it should take that same approach
that they took with the Bush nominees. He was a central player at the CIA,
he was deputy executive director for a while, he was chief of staff to
Porter Goss, Bush`s - Bush`s CIA director. He knew everything, I think,
it`s safe to say, he knew everything about the torture program, about the
secret prisons that Porter Goss knew.

HAYES: I want you to hold that thought. I`m going to ask about
accountability and also, John Brennan, for all, in the glass four years as
counter-terrorism adviser. All right, after we take this break.


HAYES: So, Chris Anders in the ACLU, I mean you just said before we went
to break, basically, the Senate should view the Brennan nomination
skeptically or they should apply the same principles they applied in the
Bush administration, which is that when people are sent to the Senate who
were embedded at relatively high levels in the CIA during the torture
regime, that that is a kind of black mark on their record and I want to - I
just want to give the argument in opposition to that for a moment, right?
Which is, A., what Eli is saying, right -- It was -- they were told it was
cleared by the OLC. The OLC said this was legal. It came down from the
White House. They are, you know, in the authority structure. They are -
they are a product of the executive branch, which was telling them what
they were doing was legal and then also, I think in Brennan`s defense
there`s the fact that he came out and called waterboarding, which is the
most extreme of the methods that were put on the table, he called it
torture, unambiguously in 2007. Take a look.


UNIDENTIFIED FEMALE: So was Secretary Rice correct today when she called
it a vital tool ...


HAYES: He says, I think it is certainly subjecting an individual`s severe
pain and suffering which is the classic definition of torture, and I
believe quite frankly it`s inconsistent with American values and is
something that should be prohibited." Does that -- is that exculpatory in
your view?

ANDERS: Well, he was -- he`s not some CIA agent who was at the line level.
He was - he was not out in the field. He was the deputy executive
director. That all the key points, he was chief of staff to Porter Goss
during a lot of these key points. He wasn`t some fly on the wall, he also
wasn`t someone who was at the bottom of the chain. And one of the things I
think is really interesting to look at is -- when he withdrew his candidacy
for this position four years ago, he wrote to then Senator, and I guess who
was president elect at that point, Obama, withdrawing his name and at that
time he said that he had no role in the decision making process for

But what we do know is that he knew everything about it. So one of the
things that I think the Senate`s going to have to figure out is, there`s -
was he kind of a fly on the wall? Was he just cc`ed on every memo or was -
you know, one -- at one side of the spectrum. The other side of the
spectrum is being, I guess, the decider. He`s saying he wasn`t that
decider, but there`s a lot of space in between. And in D.C., chief of
staff or a deputy director, what they are usually are implementers. They
are not deciders, they`re not flies on the wall. They`re implementers.
And for someone at that level, if he was implementing this torture program,
the secret prison program, the secret (ph) rendition program, that`s a big

REID: Well, I mean, you know what? I think this discussion is complicated
by the fact that everyone is implicated in this, right? Congress is
implicated. They have successively - in successive Congresses they have
eventually had a hands-off approach to these ideas of torture. We don`t
know how much the senior - at the senior level Congress even knew about
what was going on. If you -- you know, the things that the Bush
administration did that were odious to just about every American.

HAYES: Not just to -- not just to about every American.


HAYES: No, that`s not true. I mean -- yes, I mean.

REID: Well -- to, well, that`s important. They were done by the Bush
administration and they were all given a free pass. And somebody like
this, I think, is not the implementer, is not the person that you need to
look at. You just look at the Bush administration, all of whom got off
scot-free from having done these ...

GOODMAN: And I think we have to go see on the Bush administration, we have
to go from the continuum of the Bush administration to the Obama
administration, because John Brennan doesn`t just come out of the Bush
administration ...

HAYES: Right.

GOODMAN: He`s also been there for four years of President Obama. And
they`re involved with the drone program. I just came from Doha, Qatar
where I was covering the climate change summit, but during that time, I
went over to al-Jazeera and they interviewed the only journalist who was
held at Guantanamo for six years. His name is Sami Al-Haj, never charged,
released after six years. Held in Afghanistan, then in Guantanamo. He was
tortured, he was constantly interrogated about what -- who were the bosses
at al-Jazeera. It was an astounding story of how this man was held, only
freed after a 400 day hunger fast.

The reason I raise Sami al-Haj is when people watch the Senate confirmation
hearings of John Brennan, he`s an example of one of the few voices of the
voiceless who can describe the reality of what is happening on the ground
at Guantanamo. This is not just about John Brennan. It goes to President
Obama as well who promised to close it. It`s now the fourth anniversary of
President Obama promising to close it.

REID: And Congress blocked it. We need to remember, Congress is also
implicated in that. I mean, it was one of the first executive orders--


GOODMAN: Absolutely fine, but --

RIED: And Democrats wouldn`t vote for it.

GOODMAN: You`re absolutely right. Everyone is implicated here, but John
Brennan, the inner circle of President Obama and that goes to the issue of
the drone wars as well.

ANDERS: Let us push back for a second, though, and just defend Congress
and the Senate maybe for a moment. Back during the Bush administration,
there were people who were put up for these positions. And one of John
Brennan`s colleagues, John Rizzo, who was - who was at that time, acting
general counsel of the CIA, that`s a Senate-confirmed position to become
the general counsel of the CIA, he was - he had such a rough hearing and
such a rough confirmation process that he was forced to withdraw his name
from consideration for that position. There were other people, too. The
deputy - the candidate to be deputy attorney general of the Justice
Department, Tim Flanagan, also withdrew his nomination. There were a
number of other people including some top military leaders whose careers
basically ended because of this. Now, it`s not the same as going to
prison, it`s not the same as being charged with a crime for a role in
torture, but it`s a big deal in D.C. And the Senate ...

HAYES: But you can say that - you can say that John Brennan got -- had to
spend four years in the penalty box, right? I mean that he didn`t ...

LAKE: That`s not -- hardly a penalty box.

HAYES: Right, but ...

LAKE: But that is -


LAKE: The penalty box being the White House and a leader in the
intelligence community. And if I may say so, I think that the rest of this
panel is engaged in a bit of moral posturing here, because I think that the
policy of supporting allied counter-terrorism and security services, which
I think do far more shocking of the conscience interrogations than
everything we know about the EIT program for the CIA, and that went on ...

GOODMAN: When you say EIT, you should say torture. You`re talking about
enhanced interrogation techniques, but we --


REID: -- acknowledge that waterboarding was torture, and I think ...

LAKE: I want to push back against that. I mean, I first of all, agree
that waterboarding is - does shock the conscience, and America shouldn`t do
it, but there is a debate about what necessarily constitutes torture, and
just to assert that without accounting for the fact that there`s a
disagreement on it, I disagree with you.

HAYES: Oh, you can call it whatever you want. I call it torture, but you
can continue.

LAKE: You can call it torture, and I`m not defending, it, but what I`m
trying to say is that there`s something deeper going on, which is that the
U.S. liaison relationship before and after Bush with the Pakistani
services, the Egyptian services under Mubarak and other countries is
probably from a moral perspective worse than anything that was done under
the secret programs at the CIA.

HAYES: This is - and what you`re talking about here, is the practice of
rendition, right, which is ...

LAKE: More than rendition ...

HAYES: Right.

LAKE: It`s more than rendition. Because rendition is when you capture
someone in country A and you bring him to country B. It is the joint
operations that exist in total secrecy with these other services, where
they pick something up and they use U.S. intelligence, where they use U.S.
for something like that, and then the U.S. sort of steps away, and it
becomes a local ...

HAYES: Go do your thing, ISI.

LAKE: And they train the same people, and we`re doing everything else.

HAYES: I want to get -- I want to get you thought on that in a second.
Let`s take a quick break.


HAYES: Joy, I`m sorry, I cut your off right before we went to break.

REID: Well, I was going to say that one of the reasons that a lot of
people believe that John Brennan is the guy that Barack Obama wants is
because there`s this sense that a lot of what`s being done here in terms of
the targeted killings with drones et cetera is partly about force
protection. It`s about not wanting to put boots on the ground in order to
wage the so-called war on terror. And the idea that these operations
shouldn`t even exist in the CIA, they should be done in the Pentagon, and
one of the things the president would need in order to move some of these
operation into the Pentagon is a willing CIA director who wouldn`t fight
it. So the thinking being that if John Brennan was willing to allow a lot
of these operations to move into the defense sphere out of the sort of
secretive world of the CIA, that would be a good outcome.


GOODMAN: We have to ask not just should it be done in the CIA or the

UNIDENTIFIED MALE: Or should it be done, right.

GOODMAN: -- should it be done at all. And I think of four years ago, when
Brennan was first going to be nominated, but was forced to withdraw his --
withdraw from any consideration. And I think of Medea Benjamin standing
up, she was the protester at Code Pink, who stood up while he was speaking
and saying, I speak here to remember Tariq Aziz, the 16-year-old in
Pakistan who was killed in a drone attack when he was simply investigating
what was happening. He had just held a news conference the day before to
say what`s happening in my country. She said, I speak here for 16-year-old
Abdulrahman Awlaki, who was the son of the cleric in Yemen. 16 years old,
born in Denver. How was it that two weeks after his father was killed, he
was then killed in a drone strike.

This goes to John Brennan, who was intimately involved with this, and it
goes of course ultimately to President Obama. This whole program of
drones, of targeted killings, must be questioned. What Medea Benjamin said
when she stood up was I speak for the Constitution, I speak for my love of
law and order. These are the kinds of debates we should be having.

HAYES: Well, and there`s no question from (inaudible) that John Brennan is
intimately involved with the targeted killing program. That`s, every bit
of, every insider account --

LAKE: He chooses the targets.

HAYES: He chooses the targets. In fact, here is the, there`s a sort of
like recurring trope about him as this priest-like presence, Jesuitical.
This is a "Washington Post" profile of Brennan. "Some White House aides
describe him as a nearly priest-like presence in their midst with a moral
depth leavened by a dry Irish wit. One CIA colleague, former General
Counsel John Rizzo, who of course you just mentioned, recalled his
rectitude surfacing in unexpected ways. Brennan once questioned Rizzo`s
use of the BCC function in the agency`s e-mail system to send a blind copy
of a message to a third party without the primary recipient`s knowledge.
He wasn`t joking, Rizzo said. He regarded that as underhanded."

And I think one of the things, one of the ways in which I think the defense
of the targeted killing program has been carried out by the Obama
administration is to say, look, we understand we`re playing with some
dangerous stuff here. But we have people of tremendous moral rectitude
overseeing the program, and we have an incredibly intense internal process,
and it`s very sophisticated, and it`s very rigorous, and there is a legal
memo from the OLC saying that we have the constitutional authority to do

Of course, we don`t know anything about what that legal memo looks like,
what the actual -- how the list actually gets drawn up. And so the
maddening thing about all of this is, yes, we should have the debate about
targeting killings, we should have the debate about John Brennan`s role.

GOODMAN: About Obama`s kill list.

HAYES: Yes, we should have a debate about all of that, and yet all of that
has been at every turn blocked by the administration and by courts from
getting out into the public sphere, and so what we`re having is a debate
without the information. Eli, I want you to respond to that right after we


HAYES: A break.


HAYES: Hello from New York. I`m Chris Hayes. With me this morning, I
have MSNBC contributor Joy Reid. Eli Lake of Newsweek and the Daily Beast.
Chris Anders of the ACLU and Amy Goodman of Democracy Now.

We are talking about the nomination of John Brennan to head the CIA. He is
the president`s chief counterterrorism adviser, has been absolutely by all
accounts instrumental in devising the strategy for waging this what is no
longer called officially the global war on terror, but is something. Is,
you know, kinetic activities in a whole bunch of countries and a lot of
targeted killing.

And one of the questions I think on the table is -- what role he has played
in that. And also this kind of accountability question. I thought -- I
wanted to bring into the conversation -- we were talking about the kill
list. But I also wondered, when we talked about accountability, to bring
in the story of John Kiriakou, because I think it`s really important.

These two things are happening in the same week, which is John Kiriakou who
is about to go to prison -- John Kiriakou is a CIA agent. On January the
25th, he has a sentencing hearing. He agreed to serve 30 months as part of
a plea deal. Pleaded guilty to violating the Intelligence Identities
Protection Act by e-mailing the name of a covert CIA officer to a reporter
as -- in the midst of a reporter reporting out what was going on with the
torture regime in the CIA.

He`s the first, current or former CIA officer to be convicted of disclosing
classified information to a reporter, and he is, as of now, the only person
who`s going to do jail time for their involvement in the torture regime.
No one else is going to see the inside of a jail cell, except this guy, who
talked to a reporter about what was going on.

And then in the same week, someone who is relatively high up in the chain
of command at the CIA during this period of time is nominated to head the
agency. And I think it`s one thing to say, to me it`s one thing to say as
I think you were making the argument before, Eli, that look, you know,
these people put themselves on the line, and they were given legal
assurances and the CIA has to do their job. And actually, if you want to
go after anyone, you should go after people -- in particular, Joy, you were
saying, look, you know, all these other people are implicated. But then to
match that with the fact that this dude is going to go to jail for 30
months because me talked about the program to a reporter so that we can
know about it?

LAKE: He disclosed the identity of someone undercover.


HAYES: You were a reporter.

LAKE: I will never defend people going to jail for that stupid identities
undercover -- and I agree with you, I don`t like it when there are these
high-level prosecutions.

HAYES: So --


LAKE: I agree with you.

HAYES: You`re a great security reporter. I know things because people
talk to you.

LAKE: Yes, I agree. No, I agree, but I was just making the distinction
there that, from the CIA`s perspective, because I sometimes feel like I
have to play the role--

HAYES: That`s fine.

LAKE: And I want to make it very clear no more leak laws, no more leak
investigations, and leak to me. But I would say that from the CIA`s
perspective, they believe that there`s a huge distinction between giving up
the identity of somebody who is undercover, which is why that law was
basically passed after there were, I guess it was the Philip Agee book that
identified the CIA station chief in Greece, and then he was later killed.
It looks like -- it turned out that it looks like the killers knew that
before the Agee disclosures, but nonetheless, there`s a huge difference
from the CIA`s perspective between identifying someone who is undercover
and whose identity is secret, and then doing something--

HAYES: And waterboarding someone with--


HAYES: But that`s from the CIA perspective. That shouldn`t necessarily be
the Justice Department perspective is my feeling.


GOODMAN: But remember, under President Obama, more whistle-blowers have
been prosecuted than under all other presidents combined.

HAYES: Although those have been under -- we should be clear about what
we`re saying here, that`s the Espionage Act, which is different than this,
right? This is not the Espionage Act that he ends up (inaudible).


REID: And we have to remember, too, the vice president of the United
States, his deputy Scooter Libby and Karl Rove were never prosecuted for
outing a CIA undercover operative. So I just want to say--


LAKE: Neither was Dick Armitage, who was responsible for the original--

HAYES: Here`s the point about that, right, which is that we say, look, if
we want to have an accountability moment, the accountability should have
been with all those people who crafted the policy in the Bush
administration, who wrote the memo like John Yoo, who notoriously wrote the
subsequently revoked OLC memo, right, that talked about organ failure,
right? That is just morally odious in every possible way.

It`s the president of the United States, President Barack Obama, who made
the choice that they were not going to face accountability. So it`s not
just -- here`s the president, January 11, 2009, basically making this
argument about moving forward that`s become the kind of hallmark. Take a


OBAMA: I don`t believe that anybody is above the law. On the other hand,
I also have a belief that we need to look forward as opposed to looking
backwards. And part of my job is to make sure that, for example, at the
CIA, you`ve got extraordinarily talented people who are working very hard
to keep Americans safe. I don`t want them to suddenly feel like they`ve
got to spend all their time looking over their shoulders and lawyering.


GOODMAN: I think that`s what people should be doing. Is they should be
very concerned about whether or not they would go to jail.

You know, last night at Riverside Church in New York, hundreds gathered to
celebrate the 85th birthday of Ramsey Clark, the former U.S. attorney
general. Among -- one of the last times I saw Ramsey Clark was in
Syracuse. He was testifying at a trial of scores of people, peace
activists, who had laid down their bodies in front of the Amford (ph) air
base, protesting the fact that their drones are directed. Their drones,
people go in -- and for people to understand how drones work, you don`t
have to be in the field. They`re on a computer, and you`re just killing
people from the comfort of your -- of a mile from your house.

And these people got convicted, and Ramsey Clark, the former U.S. attorney
general, was speaking out on their behalf.

We have to give voice to, not only the victims, because this doesn`t
increase our national security. The fact that most people in Pakistan see
the U.S. as the enemy -- it is not what most people in the United States
understand. They`re not supposed to be an enemy. Because of the number of
drone attacks that have been going on there. I hope that this John Brennan
nomination will open up a full discussion about torture and drone wars, and
what the U.S. is doing. That`s what would be productive.

HAYES: Why is that not going to happen, Eli?

LAKE: Well, because the policy of killing terrorists is widely popular,
and it is not just popular from a kind of --

GOODMAN: It`s not terrorists. We`re talking about--


LAKE: Whatever you want to say about the drone program, and I would agree
that in all of these calls for more transparency and less secrecy, I`m with
the left on this. But I would just make it very, very clear that what is
the alternative? In terms of --

GOODMAN: To killing innocent people?

LAKE: No, it`s not about killing innocent people. A lot of these drone
attacks have also been successful, and the reason -- the fact of the matter
is we don`t know, because it is --


GOODMAN: Eli, Stanford and NYU just did a study.

LAKE: I am aware of that study.

GOODMAN: Called "Living under drones." Thousands of people have been
killed, innocent people have been killed under these drone attacks. When
you say, well, we got some people who were guilty -- first of all, were
they tried, but second of all, even if they did, what about--

LAKE: No. They weren`t tried, because it`s a war.

GOODMAN: -- the thousands of people who are innocent?

LAKE: I think you have to look at the fact -- the fact that Elias Kashmiri
(ph) no longer breathes, the fact that bin Laden no longer breathes, the
world is safer.


LAKE: Those are very popular policies. Now, I think it`s a reasonable
position to say, I want all the data, I want what the CIA knows about its
civilian casualties. I want to know how they make these decisions, and I
want all of that, and I`m for that.

But I think the notion that the entire program is under--


REID: And by the way, shock and awe, dropping cluster bombs all over Iraq,
also killed a lot of civilians, but we had a Congress that authorized the
president of the United States, George W. Bush, to wage unlimited war on
terrorists, to decide who those terrorists were and to go and kill them,
whether killing them with bunker buster bombs or killing them with drones.

When the Congress of the United States gives to the president the power to
wage war, it`s very rare that an executive gives back power. That`s why we
have a balance of power.


LAKE: I think a very important point. An alternative to the drone program
is the hunt for the killers of Ambassador Stephens in Libya, which rely on
security services that are not (inaudible) and won`t help people.

HAYES: Let me intervene for a moment. I think that`s partly a false
choice. I just to be clear, what you`re talking about is the authorization
for the use of military force, which was passed essentially unanimously by
both houses of Congress, which gives incredibly broad powers, and which has
been used -- was used by the Bush administration and subsequently used by
the Obama administration as the statutory legal basis for much of what they
do and their conduct, though I`ll say -- and again, we come back to this --
the actual reasoning for why they`re able, for instance, the White House,
to target someone like Anwar al-Awlaki, an American citizen, right, who was
put on the kill list and was killed, right, as an American citizen without
due process, OK? Well, the OLC contends, we think, because of leaks to
reporters, that they have a process that meets the constitutional threshold
of due process, but we don`t know what that legal reasoning looks like,
because that memo is locked behind secrecy, and they won`t give it up in
FOIR, and a court, a district court judge just ruled that they don`t have
to give it out.

So I think there`s just a few -- I just want to, like, compartmentalize a
few of the issues here, because they all run together.

The number of civilian casualties of the drone program I think is a
massively important strategic consideration and a moral consideration.
Right? Is the ratio of terrorists killed to civilians 1-10, 1-1, 10-1?
That matters in the calculation.

Second of all, what do we know about the drone program before we can even
make those moral or strategic evaluations? We don`t know. And then third
of all, should we be doing it at all? Right? Even if we`re doing it in a
relatively efficient way, right? Are there alternatives to targeted
killing in other countries? So those -- but the problem is that none of
those things can be debated with any specificity, sophistication or rigor
in the absence of even the most basic kind of information that we do not
have access to.


ANDERS: And I think to Eli`s point about how popular these programs are,
the reason that the targeted killing program does poll well is because of
selective leaks. The only thing that people know about the program are
what`s being put out there as its successes. And the reality of the
program and the scope of the program, the failures of the program, the
legal opinions are all being hidden from the public, and they`re even being
hidden from Senators.

HAYES: And I`ll say this, I`ll say this as the final point. I think,
again, in these calculations, if people saw the Facebook page of
Abdulrahman Awlaki, who is a 16-year-old kid with a Facebook page from
Denver, that we killed, the American people killed, right? That would
change, I think, people`s way of thinking about the program.

Now, again, you`re going to say, obviously, we were not targeting him, that
was an accident, there`s collateral damage in war, and there is all sorts
of arguments--

LAKE: I`m willing to suspend all that, because I agree with you. We don`t
know, and we need to get more information.

HAYES: And so the Brennan confirmation hearing could be an opportunity, if
members of the committee are watching this, could be an opportunity, it
really could be an opportunity to ask some hard questions about that.

Eli Lake of Newsweek and the Daily Beast, Chris Anders of ACLU and Amy
Goodman of Democracy Now, thank you for joining us.

GOODMAN: I want to thank you so much, Chris, and I just want to say a
shout-out to the family of Aaron Swartz. You`ll talk about him in a little

HAYES: We`re going to talk about him.

GOODMAN: A young man who just hung himself, who was fighting for a more
transparent world.

HAYES: One area of American life where wrongdoing has been strongly
condemned after this.


HAYES: We`ve been talking about the lack of accountability for
intelligence officials who engaged in or approved of torture. We`ve seen a
similar lack of accountability in so many other elite institutions, from
Wall Street to Congress to the Catholic Church. But after more than a
decade of massive institutional failures, political dysfunction and
incompetence, systemic financial fraud and wars waged on false premises,
all of which have essentially gone without official sanction, there`s at
least one area of American life where wrongdoing has been strongly and
unequivocally condemned. Professional sports.

This week for the first time in 17 years, the Baseball Writers Association
of America chose to elect no one to the Baseball Hall of Fame because so
many of the leading candidates -- Roger Clemens and Barry Bonds, in
particular -- have been accused of using performance-enhancing drugs. Even
deserving candidates who had never tested positive for steroid use have
been shut out of the Hall on the mere suspicion they may have cheated as

After the Hall of Fame debacle this week, Major League Baseball announced
an even more restrictive drug testing program in an effort to put the
steroid era as far in the rearview mirror as possible. Baseball
commissioner Bud Selig said the new agreement, quote, "addresses critical
drug issues and symbolizes Major League Baseball`s continued vigilance
against synthetic human growth hormone, testosterone, and other
performance-enhancing substances. And that the league would continue to do
everything it can to maintain a leadership stature in the anti-doping
efforts in the years ahead."

Meanwhile, "USA Today" reporting yesterday that Lance Armstrong plans to,
quote, make an admission about doping in an interview with Oprah Winfrey
that he`ll tape tomorrow. Armstrong was stripped of his seven Tour de
France titles and banned from professional cycling after an investigation
by the U.S. Anti-Doping Agency found that he used and distributed
performance-enhancing drugs. So far at least, Armstrong has strenuously
denied that he ever engaged in doping.

Joining me now is Dave Zirin, author of "Game Over: How Politics have
Turned the Sports World Upside Down," and my colleague at "The Nation"
magazine, where he is a columnist writing about the politics of sports.
John McWhorter back at the table, professor of linguistics and American
studies at Columbia University and a columnist at "The New York Daily
News." Also joining us is Michael Brendan Dougherty, national
correspondent for the "American Conservative" magazine and a contributor to
"ESPN" magazine who wrote a great piece about Andrew Luck just a few weeks


HAYES: It was really good. I think this is such a fascinating kind of
microcosm and, like, a look at the culture of America, where it`s like we
got people who, like -- HSBC is like laundering billions of dollars of
drugs for like drug kingpins worldwide, and they get like a settlement and
it`s on page A-16. You`ve got a bunch of people who were approving
waterboarding, who were just like shot through the intelligence agencies,
right? And like everyone is just freaking out about the baseball players,
and my favorite example of this is this is documentary filmmaker Ken Burns.
This is him on steroid use by baseball players. Take a look.

"I have no guarantee that anyone you loved and think is way above" -- I`m
sorry. "I have no guarantee that anyone you loved and think is way above
that didn`t do it. And that`s why they need to wait and wait and wait,
because it makes it impossible for us to judge excellence in this era.
Those mother-f`ers should suffer for a while." Wow. What is it -- first
of all, I guess let`s talk about baseball first, and we`ll get to
Armstrong. What did you guys think about the decision by the writers to
not elect anyone?

DAVE ZIRIN, THENATION.COM: Well, the same writers who in the 1990s turned
a blind eye while these records were being set. I thought it was a
colossal sham and hypocritical for about a thousand different reasons that
we could go after here, not the least of which is that the Baseball Hall of
Fame is rife with players who are guilty of other kinds of transgressions,
to put it mildly. And so to put this kind of stamp on the 1990s, to
pretend the 1990s didn`t happen effectively, was something that I thought
was a fraudulent act by the Baseball Writers Association of America.

DOUGHERTY: Well, also, in a way, the baseball writers, in effect, are
absolving Major League Baseball itself, by saying it`s just a problem with
the players, not a problem of lack of enforcement. I mean, this was
becoming obvious not just to the writers, but to the teams themselves,
that, you know, Barry Bonds and Mark McGwire and Sammy Sosa did not just do
this in the weight room. That they were the first ones to discover a gym
or something like that. So in a way, this is a way of absolving them.

However, I do think that, although I like the condemnation of cheating and
I applaud it with you that this organ of fairness still functions among one
class of people, sports fans, the problem is the way the ballots are set
up, as long as the baseball writers continue to dither, it creates a double
injustice where the steroid guys will remain on the ballot, because they
won`t get less than 5 percent and they won`t get 75 percent, and they will
again block other worthy people from being considered for their
achievements naturally.

REID: But I mean, you know what? You say lack of enforcement? I say
encouragement. Look, when I was a kid, baseball games were 2-0, 1-0.
Suddenly, now they`re 14-9. And you can`t tell me that Major League
Baseball didn`t like the fact that you have these scores.


REID: You have basketball, you have football, you have more high-scoring
sports. You have baseball, where you have to wait eight innings for
someone to score. They loved the fact that there were a lot of more home
runs. They loved it, they encouraged it.

HAYES: And the home run race in 1998 between McGwire and Sosa was
absolutely, I mean there is no question, great for baseball. We saw
attendance go up. We saw revenue go up. It was like the housing bubble.
It was the version of the housing bubble.

ZIRIN: I once had a player say to me that when it comes to steroids in
Major League Baseball and performance-enhancing drugs, distribution is a
team issue but punishment is an individual issue. This idea that the
entire weight of the era goes on Barry Bonds, like he`s like the Jean
Valjean of the 21st century sports world, this pursued, prosecuted
creature, and yet the institution is let off scot-free.

MCWHORTER: I`m not sure why it`s wrong, though, despite all these things
that were done in the past and all the blind eyes that were turned, that at
this point there`s some sort of discipline and some sort of accountability
being leveled. This is a genuine question. Why is it wrong that here we
are at this point, time always keeps going, now we`re disavowing what went
on before, and it`s not going to be happening again. Presumably. Isn`t
that a good thing?

HAYES: I want you to answer that question right after we take a break.


HAYES: We just discovered during the break that John wrote a critical
review of one of Dave`s books.

ZIRIN: I guess the opposite of love is not hate, but indifference. So I
appreciate the passion.

MCWHORTER: I learned so much from this.

HAYES: But you asked a question which I think is a really good one, right,
which is to say, what is wrong with basically attempting to start to assert
some accountability, and expression of -- this was wrong in saying, look,
there`s this -- no one`s going to get in the hall and this is how we`re
going to at least start to put a stake in the ground.

MCWHORTER: I thought this was about progress.

ZIRIN: There is a small part of me though that feels like trying to
enforce this accountability acts as this kind of weapon of mass
destruction, and saying in American society, we`re going to be moral on the
question of Barry Bonds, we`re going to be moral on the question of Lance
Armstrong. As for the whole lying to go to war in Iraq thing or the
financial markets, that we`re not going to talk about that too much, so
there`s a social function--

MCWHORTER: But that`s not the baseball writers problem. I mean--

ZIRIN: I think that`s true, that it`s not the writers who are saying that
as well, but I think it serves that social function. But the bigger issue
is the issue of hypocrisy, when they`re trying to assert this on the `90s,
when so much of the history of baseball is rife with not only people using
performance-enhancing drugs, but a whole era before 1947 where you had the
ultimate performance enhancer of hitters of not having to bat against
Satchel Page or pitchers of not having to pitch against Josh Gibson. I
mean, the institution itself is problematic.

REID: Doesn`t it make it easy to do it when so many people dislike Barry
Bonds? It`s not like the baseball writers are in love with Barry Bonds.
He`s like the perfect villain.


HAYES: I think you`re treading on dangerously morally relativistic ground
here. Because I think -- I agree that I think the self-righteousness of
those mother-f`ers should suffer, is a little over the top, but, like,
look, the sport went through, I think, a really distinct period there. You
can say there were different infractions in the past and people used
greenies and amphetamines, and we know all that, but the comprehensiveness
with which institutionally, from the top all the way down, this shot
through the sport and destroyed the norms and rules within it was distinct
and it is something worthy of accounting.

ZIRIN: But isn`t it the opposite of moral relativism to say that it`s
immoral to put the weight of that era on the shoulders of Barry Bonds, Mark
McGwire, Sammy Sosa and not looking at the ways -- the owners aren`t
returning that money, they`re not returning the $2.5 billion television
deals, the hundreds of millions of dollars in public funding for stadiums
that really did grow out of the steroid era.

DOUGHERTY: The sport itself does suffer from the bad reputation it
acquired. So there is a price that`s paid. In the case of the Hall of
Famers that are not going to be Hall of Famers because of the writer`s
objections to their steroid use, they`re going to lose income too. I mean,
you pay more to have a Hall of Famer come and appear at your memorabilia
event and sign cards and things like that.


HAYES: One of the things that`s really interesting here because it relates
back to the CIA problem, right, which is like when you have something --
and this is the point you were making, Joy. It`s like, OK, we got an
institution that was kind of went through a period of moral rot all the way
through, right, from the top down to the bottom, the front line people were
doing it -- the front line people, those CIA interrogators or the baseball
players actually taking the juice. And they were supported and facilitated
and covered up for by a whole set of institutional structures that allowed
that to continue. And then comes the question, where should the reckoning
be? And I think one of the dangers is if you -- when you start to zero in
on an individual, right, it looks like hypocrisy, but then the other
solution just seems to be, like, which is the solution we`ve done with the
torture era is, we can`t go after anyone individually, so let`s leave it
all behind us.

I actually think the baseball players, in not doing that, are actually --
it`s better. I`m sort of with John on that.

DOUGHERTY: But there`s a problem in the sense of, it`s not like the CIA,
where there are memos about almost everything and that you can actually
discover. With baseball players, this was done informally, this is passing
things from locker to locker, this is -- we don`t have good tests from 1989
to 2004 to judge by.

HAYES: So we literally don`t know.

DOUGHERTY: We can`t know. So if Mike Piazza breaks through because the
only accusation is that he had bacne--

ZIRIN: If he had a better dermatologist, he`d be in the Hall of Fame.

DOUGHERTY: Right, exactly. But he might get in, because he had over 50
percent of the vote, whereas the other big names didn`t.

HAYES: For those who are not sports guys, Mike Piazza probably one of the
best power hitting catchers in the history of baseball, one of the best
hitting catchers in the history of baseball, and he`s one of these people
who`s in the gray area. Roger Clemens and Barry Bonds, we`re all pretty
sure about what they did. There`s a lot of other people who have actually
come out and admitted it. Jose Canseco famously. Piazza has never -- has
said he never did, but there`s this obsession with finding it out.

Here`s Murray Chass, who is like -- this is like his white whale that he`s
hunting is the Piazza drug story. "Piazza never tested positive for
steroid use, and that has been his defense against charges that he used
steroids. But in baseball, he`s long been a steroid suspect. All his
teammates and anyone else in teams clubhouses saw his acne-covered back, a
telltale sign of steroids." Until baseball started to test for steroids,
then the acne magically disappeared. Case closed. I want to get your
thoughts on that, and then I also want to talk about the idea which Ross
Douthat wrote about and one of the former teammates of Lance Armstrong
wrote about, which is the idea of a truth and reconciliation committee as
the way to deal with this kind of period in the sports, right after this.


HAYES: Talking about the doping scandals in both Major League Baseball and
in U.S. cycling, and the reactions to them, and how to sort of deal with --
how to deal with an institution that went through a period in which there
was a lot of moral rot.

And I just want to be very clear, in terms of comparing different
institutions. Torture on the moral scale of wrong is way, way, way
different than using performance-enhancing drugs. I would never equate the
two, just so that`s very clear, but in terms of how an institution deals
with what went on within the institution -- and this is true for Wall
Street and a whole bunch of other things as well -- and baseball did this
thing this week where they didn`t elect anyone to the Hall of Fame.

There is also now the big Lance Armstrong issue. Right? So Lance
Armstrong is fascinating too, because the U.S. Anti-Doping Agency issued
this incredibly stern report, very comprehensive. I mean, if you read that
thing, it`s pretty -- again, it`s only one side of the story. Right?
There`s no defense brief to read as well, but Lance Armstrong comes across
kind of like a Tony Soprano figure, right? Like he`s basically running
this sort of criminal enterprise and like bringing people into it, and kind
of like, you start out and then you get Lance Armstrong tells you how to
start doping, and there is this very kind of corrupting aspect to the whole
thing. And the U.S. Anti-Doping Agency CEO Travis Tygart said this, "in
regard to the truth and reconciliation process, I firmly believe you have
to reset the sport and have a cleansing period. If not, the past continues
to drip, drip, drip and will dig itself up" -- a mixed metaphor, that`s OK.
"People who doped in the past -- and it could be recent past -- have never
been held accountable. And if they`ve never been exposed or held
accountable, the more likely they are to continue to dope. So as long as
they`re still in the sport, and many of them are at some levels as
athletes, directors, team owners, maybe in the ranks in the cycling`s
governing body, they are less likely to change on their own."

MCWHORTER: You know, there`s something to be said -- I want to just say at
the outset -- about the fact that, OK, we`re talking about baseball
players, and it might seem somewhat trivial or theatrical talking about
Tony Soprano, compared to larger issues such as drones, such as malfeasance
on Wall Street, but in a way maybe this serves a purpose, because human
beings can begin with the visceral. You walk by any bar and you see people
watching these sports on TV. For me, that`s something very alien to what I
do, I`m home playing the piano, but I see how important these things are to
most people.


MCWHORTER: Or you know, Lance Armstrong, (inaudible), or Lance Armstrong,
and he`s this one person, this powerful personality -- maybe we can go from
this to applying these things to more abstract, less visceral issues.
There`s a lesson to be learned here, I hope.

DOUGHERTY: It`s something I wanted to say is that, you know, sports are
this working-class, associated with this working-class pastime, and
sometimes, we were talking about it backstage, and Marxists have said that
sports are a distraction. But I actually think this is exactly right,
that especially polite liberals and the wonk class could learn from sports
fans that an intense desire for fairness can be cleansing. No one is
looking at Barry Bonds and saying he`s too big to prosecute, like this
British bank. Right? But in a sense the dirtiest trick --

HAYES: You`re saying the kind of like retributional impulse that you`re
seeing from fans.

DOUGHERTY: I`m saying the desire for fairness. Because in a way, when you
look at these scandals like too big to fail, it`s really the dirtiest trick
the devil ever played on polite liberals, was saying that this corruption,
this entrenched corruption, is identified with the well-being of everyone.
And that you actually have to protect it. You actually have to protect a
giant bank from prosecution or from its own failures.

ZIRIN: The too big --

DOUGHERTY: From everyone else.

ZIRIN: The too big to fail in this case, though, is Major League Baseball.
I agree with what John just said, but I take it from a different view. To
me there`s something dangerous about the narrative that says you clean
things up by going after the person at the low end of the chain of command.
It`s like saying that Abu Ghraib is about Lynndie England and not about
going up the scale. And that`s why I feel passionately about the way that
sports -- I totally agree -- sends this message for the country. It`s like
a stalking horse about how we`re going to look at these different issues.
And when you have a situation like Congress does what the former
Representative Tom Lantos has called, "the theater of the absurd," by doing
these steroid trials, and they don`t call -- they only call one general
manager in this whole thing, Brian Sabian of the Giants, they call zero
owners to talk about it, it sends a message.

HAYES: And they berate the union specifically. There`s quotes in my book
about John McCain going after the player`s union. So then what do you
think about the Lance Armstrong thing, right? Because Lance Armstrong does
seem like, there -- you really are going after the capo, right? And then
it took some -- it actually did, I think, take some risk on the part of
institutional cycling to go after this icon. This guy who was the most
successful athlete in his sport in history, A. And B, has this amazing
personal story of beating back cancer and coming back and winning, and, C,
was a cultural phenomenon. I mean, John Kerry, if you go look at 2004
campaign footage, every single rally, John Kerry, has got a Livestrong
yellow bracelet on this arm. And there was a period of time where every
single person you ran into in this country had a Livestrong bracelet. And
so for them to actually go after and deliver that kind of accountability on
him --

REID: Well, I mean, not to cut you off, but I mean, we`re in an age where
nothing is heroic and no one is heroic, right? Tiger Woods went down.
Lance Armstrong is not really a hero. Baseball is a lie.


REID: Right, exactly, and I mean, I think that for parents of kids who
play sports, this whole spectacle has been even more depressing, because, I
just lived in Florida, which is a factory for little football players, and
no one talks about the injuries these kids are suffering. The extent to
which they`re destroying their growing bodies in order to play this sport,
because sports has this great iconography that is almost all a lie. That`s
sort of a lesson we`re learning.

ZIRIN: We`ve really become a country, like they said in the "Batman"
movie, die a hero or live long enough to become a villain. And with the
case of Lance Armstrong, it`s very specific for two different reasons. The
first is what you said, is like you read the report, and no other athlete
has ever been presented with this kind of like, hey, you want to bike with
me? There`s some things you got to do if you want to bike with me?

HAYES: That is exactly what it comes across like.

ZIRIN: And you really do feel like, it`s like did Mario Puzo write this
thing. But the second part is, my goodness. It`s like, I have relatives
who have fought through cancer. It`s like that rubber bracelet is a bond,
which makes me feel like -- Lance Armstrong, they could find out he did
anything short of drowning puppies, and it would be like, I`ll stand up for
Lance Armstrong.

HAYES: More on that right after we take a break.


HAYES: So lance Armstrong is going to be appear on Oprah on Thursday,
taping the interview tomorrow. And I think the point you made is really
important, Dave, I mean, in terms of the importance of Livestrong and what
that meant and what that meant to so many people.

And the thing I was just saying in the break is that`s why I was kind of
amazed and admire the Anti-Doping Agency`s report, because if there`s
anyone that`s too big to fail, it`s Lance Armstrong. Right, and you can
even imagine people, when that report was being created, or when they were
doing it, making the same arguments that were made about the banks. Right?
Which is if you do this, you`re going to hurt a lot of people who had
nothing to do with Lance Armstrong. You are going to cut off the funds to
his charity, the charity does really important work. You know what I mean?
And yet, they did it anyway, because, I think to their credit, there`s a
genuinely desire for accountability, and I think part of that genuine
desire gets back to what Michael said about how sports pulls out that part
of us that really hates cheating.

ZIRIN: But there is a part of us I just thinks that needs -- and I`m going
to be alone on this -- I think saying that we need to take a step back and
say, USADA, that is the U.S. Anti-Doping Agency, got millions of dollars in
taxpayer money for over the course of years to go after someone who hasn`t
been a competitive cyclist for about five years, hasn`t won a Tour de
France in five or six years. And so I think it`s worth taking a step back
and saying, given where we are as a country, is this where we want our
resources and our obsessions to lie? Do we want federal agents looking at
cyclists as if they`re Ahab going after--


HAYES: Yes, the crotchety Old Testament part of me that has seen no one
get punished for anything for years says -- yes! I mean, seriously.


HAYES: Really, and I think you and I differ on this, but I do think
there`s something really important about that, and then there`s the
question of, what do you do about the sport now? Right? And I think that--

ZIRIN: But that`s the thing, too. If you -- the reason why they haven`t
awarded any of the seven Tour de Frances to the seconds-place winners is
because all seven second-place winners have been implicated as well.


MCWHORTER: This is also more about our becoming sort of one community.
The Internet must have something to do with this, in that we would reach
this fever pitch and actually have this kind of reform, that really doesn`t
have any capitalist motive. It really does seem to be a kind of an uptick
in what`s considered morality in this prosecuting cheating.

I think it`s a wonderful thing, it wouldn`t have happened before, and I`m
hoping it starts with baseball, God love baseball, and then maybe moves to
other sorts of things.

HAYES: What I think baseball has to do is get a lot more specific. And I
want to give a shoutout to Fred McGriff, great slugger, first baseman, who
-- there is no evidence that he ever took steroids -- went through his
career hitting 30 homers and 100 RBIs, should be in the Hall and has now
been caught up in essentially this sweeping over-punishment.

All right, what you should know for the news week ahead, coming up next.


HAYES: In just a moment, what you should know for the week ahead, but
first a few updates.

The nominations for this year`s Academy Awards were announced this week,
and the list included several films we have talked about on the show.
Congratulations are in order to those involved in the remarkable,
groundbreaking documentary, "How to Survive a Plague," nominated for best
documentary. We featured the documentary on our show in September and
interviewed director David France.

The same goes for "Lincoln" screenwriter Tony Kushner, who we interviewed
in November, and was nominated for best adapted screenplay, just one of
"Lincoln`s" 12 nods. And "Zero Dark Thirty," a film we discussed at length
last month, received five nominations, including best film.

We also want to update you on a story we discussed yesterday. The
possibility that the Treasury Department could, under a little known
statute, mint a trillion-dollar platinum coin and deposit it into its bank
account in the Federal Reserve in order to sidestep a fight with
Congressional Republicans over the debt limit. Anthony Colie (ph), a
spokesperson for the Treasury Department, issued a statement yesterday
afternoon saying that quote, "neither the Treasury Department nor the
Federal Reserve believes the law can or should be used to facilitate the
production of platinum coins for the purpose of avoiding an increase in the
debt limit."

And finally a quick personal update. I`ll be in Baltimore on Wednesday to
talk about my book, "Twilight of the Elites: America After Meritocracy."
It`s got a chapter about the steroids era in baseball, and I`ll be at the
Enoch Pratt free library Wednesday night. For more information, check out
our Facebook page,

All right, so what should you know for the week coming up? You should know
that the hacker, programmer, writer and activist Aaron Swartz has died of
suicide at age 26. His body was found in his apartment on Friday. Aaron
was one of those preternaturally brilliant precocious hackers who at the
age of 14 co-developed the really simple syndication or RSS web protocol,
which is a key component of much of the web`s entire publishing
infrastructure. By 19, he co-founded a company that would merge with
Reddit, a user-generated social news site that is now one of the most
highly trafficked news sites in the world.

Aaron read voraciously, uploading reviews of dozens of books to his blog,
and he wrote beautifully and prolifically. He worked as a progressive
activist with the group Progressive Change Campaign Committee, founded
Demand Progress, which was instrumental in fights to keep the Internet open
and free, and in the battle to stop and defeat the Stop Online Piracy Act.

He developed the architecture for the creative common licensing system that
so many on the Internet use, and in 2010, he and I were both fellows at
Harvard`s Safra Center for Ethics. Aaron and I would grab lunch and talk
politics and ideas, and he would talk about the various books he was in the
process of writing or planning on writing. He was a remarkable kind of
21st century nerd Renaissance man.

He also suffered from depression. He wrote about his depression in 2007 in
a post titled "Sick." "Surely there have been times when you`ve been
said," he wrote, "Perhaps a loved one has abandoned you or a plan has gone
horribly awry. Your face falls. Perhaps you cry. You feel worthless, you
wonder whether it`s worth going on. Everything you think about seems
bleak. The things you have done, the things you hope to do. The people
around you. You want to lie in bed and keep the lights off. Depressed
mood is like that, only it doesn`t come for any reason and it does not go
for any either. Go outside and get some fresh air, or cuddle with a loved
one, you don`t feel any better, only more upset at being unable to feel the
joy that everyone else seems to feel. Everything gets colored by sadness."

You should know if you are depressed, you are not alone. There are
literally millions of people out there suffering from depression, and help
is available.

You should also know that at the time of his death, Aaron was being
prosecuted by the federal government and threatened with up to 35 years in
prison and $1 million in fines for the crime of, and I am not exaggerating
here, downloading too many free articles from the online database of
scholarly work, JSTOR. Aaron had allegedly used a simple computer script
to use MIT`s network to massively download academic articles from the
database that he himself had legitimate access to -- almost 5 million in
all -- with the intent, prosecutors alleged, of making them freely
available, although he never did.

You should know that despite JSTOR declining to press charges or pursue
prosecution, federal prosecutors dropped a staggering 13-count felony
indictment on Aaron for his alleged actions.

In a statement about his death, Aaron`s family and partner wrote, "Aaron`s
death is not simply a personal tragedy. It`s the product of a criminal
justice system rife with intimidation and prosecutorial overreach.
Decisions made by officials in a Massachusetts U.S. attorney`s office and
at MIT contributed to his death."

You should know his death is a good reason to revisit the 1986 Computer
Fraud and Abuse Act, the law under which he was prosecuted, since it is far
too broad, and it`s also a good time to take a hard look at Massachusetts
U.S. attorney Carmen Ortiz, whose office prosecuted Aaron with such
reckless disproportion vigor, and who is reportedly considering a run for

You should know we are going to miss you, Aaron. We are going to miss your
brilliant mind, your righteous heart, and your sensitive soul.

I want to find out what my guests think we should know for the week coming
up. Joy, I`ll start with you.

REID: OK. Well, you should know that conservatives are discovering that
Ronald Reagan, the patron saint of all things conservative, committed yet
another act that they are now outraged about, which is in 1967, when he was
governor of California, signing the Mulford Act, and the Mulford Act was
designed to thwart the Black Panthers from doing armed patrols, watching
police officers, and it banned the carrying of weapons, of guns, in public
or in cars. But interestingly enough, Mulford, which the act was named
after, was a state assemblyman who represented the district that included
UC Berkeley, and whose signature achievement was to try to evict anti-war
protesters off the Berkeley campus, because he believed they were not
really students, they were beatniks and communists and perverts. That was
sort of his signature--


HAYES: -- tangled ideological roots of gun control.

REID: There`s irony.


ZIRIN: Every year there is a controversial Super Bowl ad. You should know
that this year, it will be for a company called Soda Stream. They
carbonate beverages. They turn water into club soda. Soda Stream is also
an Israeli company, it`s an Israeli company that exists -- the factory
exists in the occupied -- it`s on an illegal settlement in the West Bank.
And this is already leading to a lot of protests that this commercial is
going to be played in the Super Bowl, since it`s on an illegal settlement.
There`s a protest today in Washington, D.C. being held by Jewish Voices for
Peace against Soda Stream, and a counter-protest by people supporting Soda
Stream and the idea of having these companies on illegal settlements in the
West Bank, and this will show up on the largest possible social stage in
the United States, the Super Bowl.

HAYES: I did not know that. Something to look out for. John McWhorter?

MCWHORTER: It`s interesting. Looking at this story of the Obama
administration and women got me thinking about women in the arts and
there`s very different kinds of statistics. It just happened right now
that we have Tina Fey and Amy Poehler who are going to be hosting the
Golden Globes. The upcoming premier of "The Girls" series on HBO written
by Lena Dunham. "Sex and the City" was written by a man. This one is
quite different. And last time I checked the New York Times best-seller
list, there were I think five women in the top ten, and three women in the
top 10 on non-fiction, five in fiction. And so I think that that`s a good
thing, too, even if we have discrepancies to make up for in other aspects
of the country.

HAYES: Michael Brendan Dougherty.

DOUGHERTY: I just recommend everyone go to "The New York Times" and find a
series that`s being done on gifted and talented programs in New York City
schools. There`s no one lesson to be drawn from this, but it`s a
fascinating portrait of perhaps a system -- a segregated system within a
system, whether you believe it`s segregated by merit or deliberately
segregated on race. Read the reporting.

What they have found is that every time a new test is introduced to resolve
the problem of racial disparity, the racial disparities actually increase.

HAYES: I actually have a whole chapter in my book about the school I went
to, which is a magnet, gifted and talented school, high school, Hunter high
school here in New York and about precisely this issue, and that reporting
has been fantastic.

I want to thank my guests today. MSNBC contributor Joy Reid, Dave Zirin
from "The Nation" magazine, John McWhorter from Columbia University, and
Michael Brendan Dougherty from the "American Conservative" magazine. Thank
you all.

Thank you for joining us. We`ll be back next weekend, Saturday and Sunday
at 8:00 Eastern time. We`ll be on our first road trip, y`all, in
Washington, D.C. for the run-up to President Obama`s second inauguration.
We will be talking to some of the new members of Congress and with civil
rights activist Myrlie Evers-Williams, widow of Medgar Evers, who will
deliver the invocation for President Obama`s inauguration.

Coming up next is "MELISSA HARRIS-PERRY." On today`s "MHP," Melissa
explores what is at stake in the gun debate in Washington. Then makes a
complete turn to embrace women in comedy as Tina Fey and Amy Poehler get
set to host the Golden Globes tonight, which I`m psyched for. Is it a mark
of victory for women in a field dominated by men?

That`s "MELISSA HARRIS-PERRY" coming up next. We`ll see you next week here
on UP.



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