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All In With Chris Hayes, Tuesday, July 22nd, 2014

Read the transcript from the Tuesday show

July 22, 2014

Guest: Michael Birnbaum, James Fallows, Rula Jebreal, Laurence Tribe, Beto


CHRIS HAYES, MSNBC HOST (voice-over): Tonight, we are ALL IN.


HAYES: This fly in the Ukrainian parliament as the MH17 investigation


HAYES: America lays out the case against the pro-Russian separatists
but cannot connect the dots to Russia. We`ll go to Ukraine for the latest.

Then, as rockets fly from Gaza, the FAA grounds all American flights
to Israel.

Plus, as the deadly escalation in the Middle East continues, is the
media covering both sides fairly?

RULA JEBREAL: We are disgustingly biased when it comes to this issue.

HAYES: Rula Jebreal is here tonight.

And just when you thought Obamacare was safe --

UNIDENTIFIED MALE: If this ruling stays in place, it would
essentially obliterate Obamacare.

HAYES: What today`s two major court decisions have to do with deep-
dish pizza.

ALL IN starts right now.


HAYES: Good evening from New York. I`m Chris Hayes.

The cockpit of Malaysia Airlines Flight 17 has been found, cut in
half, apparently by diesel-powered saws. The mystery and confusion
surrounding the crash site and the investigation intensifying as
international monitors who now have access to the crash site said the
Boeing 777 cockpit was sawed in half while under the control of Russian-
backed separatists.


when we were at the cockpit section, when we were leaving we did see
workers using diesel-powered saw to get a closer look at the fuselage. We
can`t draw any conclusions. That`s not our role. But it`s an observation
we made.


HAYES: Just an observation, large part to the cockpit and every part
of the fuselage were carried off. The monitors are not sure why such vital
pieces of evidence from the downed plane were tampered with, though the
evidence that is there seemed to confirm the plane, had indeed, been in the
words of Vice President Biden, blown out of the sky.

"The New York Times" today reported in great detail how photographs of
markings on the fuselage of the plane are consistent with the high-velocity
projectile, a missile. All this a reminder of the brute fact that this is
all taking place in a very active war zone.

As the refrigerated train containing the bodies of victims today
reached Ukrainian government-controlled town of Kharkiv, a day after an
emotional appeal by the Netherlands` minister of foreign affairs to the
United States.


that you first get the news that your husband was killed, and then within
two or three days, you see images of some thug removing the wedding band
from their hands. Just imagine that this could be your spouse. Allow us
to bring the victims` remains home to their loved ones without any further
delay. They deserve to be home.


HAYES: Worse, there is not yet a clear accounting of their remains.
Initial reports indicate the refrigerated train held more than 200 bodies -
- 298 people were on that plane. Investigators will travel to the crash
site tomorrow to begin to sort out that particular nightmarish problem.


moment, we are talking about 200. That is for sure, 200 victims, which
means that there are probably remains left in the area where this disaster
took place.


HAYES: On a day when three senior experts from Malaysia Airlines
reached the site, Russian President Vladimir Putin said his country would
try to ensure the separatists would cooperate with the investigation. He
also called on the West to do more to persuade Ukraine to end hostilities.
Those hostilities have continued unabated since the downing of the plane.

And in Kiev, debates whether the Ukrainian government should continue
to press for military advantage at this moment or accede to request for a
cease-fire exploded in fistfights, a brawl on the floor of the Ukrainian
parliament. Ultimately, Ukraine government approved a presidential decree
for additional military reserves to continue to fight the rebels in eastern

Earlier, I spoke with "Washington Post" foreign correspondent Michael
Birnbaum who`s in Donetsk, Ukraine. I began by asking him what the scene
was at the crash site yester -- today.


MICHAEL BIRNBAUM, WASHINGTON POST (via telephone): Well, the scene
was rather quiet, I have to say. There are two guards currently watching
over the vast site. It`s a big patch of wheat fields. There were
grasshoppers chirping, but nothing much more. No real preventative
measures to keep anybody who wants to wander on to the debris from getting
there and taking anything they want away.

HAYES: Was there any sign of some of the investigators that had been
dispatched that we have been told are now on the ground?

BIRNBAUM: Well, every day the investigators have been visiting
briefly these sites. They`re not really doing a major investigation.
There are a couple of groups currently in Donetsk. They visit the site
which is about 40 miles away from Donetsk every day, but they`re really not
doing a real investigation. They`re just taking a look at the site and
keeping an eye on it, observing what`s happening there, what the changes

HAYES: We saw reporting today that there was some pretty egregious
evidence that the site had been tampered with, including the cockpit being
sawed in half. Any sense of what that is about?

BIRNBAUM: Well, the big question is, to what extent investigators
will be able to find evidence of what happened to Flight 17 if and when
they eventually get here and do a real investigation. And if the --
assuming the plane was, indeed, hit by a missile, one thing you`d be
looking for is signs of how, what kind of impact there was on the plane,
itself. You`d also be looking for fragments from the missile.

So, cutting up pieces of the plane really could potentially compromise
the investigation, and the group of international observers that`s on the
site here and has been visiting every day has said that they did see
evidence that the cockpit had been cut in half with gas-powered saws. So
that does lead to major questions about what investigators will be able to
see when they get here.

HAYES: While all this is going on, of course, this remains a war
zone. I mean, Ukrainian military has been engaged in kinetic activity in
that part of Ukraine. Does it feel like a war zone there? Does it feel
like a relatively stable area under the watchful eye of the People`s
Republic of Donetsk?

BIRNBAUM: No, it feels like a war zone. You hear loud explosions all
the time. Just yesterday, there was a lot of activity, explosions,
artillery fire, near the Donetsk railway stations and airport. That`s
opposite in direction from the crash site, from the city of Donetsk, but
nevertheless, the Ukrainian military has decided to continue a fairly large
offensive on the city as investigators slowly gather here and work on the

And just today, at the site, you could see off in the horizon large
plumes of black smoke. You could also hear explosions of offensives to the
east of Ukraine -- in the Luhansk region where there`s been a tremendous
amount of fighting in the last couple days.

HAYES: You did a really incredible piece about one family who
literally had a body fall through their roof on to their kitchen table. I
guess my question is, the people that you`ve spoken to in that region, what
do they make of what is going on?

BIRNBAUM: Well, people have lots of digit ideas, but they by in large
are really angry with the Ukrainian military for what they see as an
offensive that does not make any distinguishing between the rebels who`ve
taken up arms and ordinary civilians. A lot of residential complexes have
been hit with artillery fire in the area around Donetsk. People are really
angry about that. They feel paranoid about what the intentions of the
government in Kiev are for them.

And there are a lot of theories about what happened to the airplane.
Some people kind of accept the Western line that it was hit by a missile.
You know, that was probably fired by rebels. But a lot of people also have
other theories that it was downed by Ukrainian missile, that it was some
sort of conspiracy to hurt Russia and to hurt the image of the rebels in
the world.

HAYES: Michael Birnbaum, "The Washington Post" -- thank you so much.



HAYES: The White House today told NBC News it is standing by what the
president, U.N. Ambassador Samantha Power, and Secretary of State John
Kerry have all been saying about Russian training and support for the
separatists that the U.S. claim likely shot down the plane.

This after a briefing today given by the Department of National
Intelligence in which officials said they do not know exactly who fired the
surface-to-air missile. But according to "The Washington Post", senior
officials cited sensors that traced the path of the missile, shrapnel
markings on the downed aircraft, voiceprint analysis of separatists
claiming the strike, and a flood of photos and other data from social media

Meanwhile, there`s mounting evidence the plane`s wreckage is riddled
with holes from shrapnel. And that is significant, because the SA-11
missile or BUK is a fragmenting warhead, which means it`s designed to
explode near its target before hitting the target as detailed by "The New
York Times," rather like the missile version of a sawed-off shot gun.

Joining me now, NBC News security analyst, Don Borelli.

Don, you`ve investigated horrific scenes before, the embassy bombings
in Africa. If you arrived, what are you looking for? How important is the
stuff there for figuring out what happened?

you have an investigation involving a weapon of mass destruction, I`m going
to use that term because that appears to be the case here, the missile
being the WMD.

HAYES: And technical FBI sense of the word.

BORELLI: Technical FBI sense of the word, yes. You -- the crime
scene is absolutely critical. You have to secure it. You have to process
it. It`s perishable. There`s a lot of physical evidence that can be
extracted from that crime scene including as your previous guest said,
residue, fragments from the bomb, shrapnel. All the things that will
support the other information that`s been obtained to show that was in fact
the cause of taking down the airliner.

HAYES: So, can you conceivably find the parts of the missile that
took it down?

BORELLI: Sure. Absolutely. You can find bits and pieces, fragments,
in just about any kind of an explosion.

You will find some remnants of the bomb, itself, including as your
other guest said, the shrapnel residue. Other things like that.

HAYES: So what is the next step if you`re doing this investigation?
And how important, I guess, is the intelligence that`s coming from off the
site as opposed to what`s on the site since we can`t at this point
guarantee the sort of sanctity of the site?

BORELLI: Well, you want to try to get as much as you want to support
the intelligence. And it`s going to be a very tough team for this team
that`s on the ground. I mean, normally when you have a situation where you
have full cooperation of the government, it could take weeks to process a
crime scene like this.

HAYES: And hundreds of people.

BORELLI: Hundreds.

HAYES: I mean, if you`re doing grid searches on 10 square miles to
find some little piece of a missile that might be this big that might be
the thing that is the kind of smoking gun, as it were, you got to have a
lot of people doing that, right?

BORELLI: You got to have a lot of people. They need to have special
equipment. They need to have training. Everything needs to be
methodically documented.

That`s why these things take a long time. The team that`s there now
is just really working under adverse conditions. They got their own safety
to be aware of. And they -- it just looks like they`re basically there
with a few cell phone cameras and note pads and things, not all the
sophisticated equipment that you would normally see.

HAYES: So what are the odds we just never get the definitive truth
out of this?

BORELLI: Well, I think we will get the definitive truth. I think
there`s going to be a lot of information that`s going to come forward. A
lot of it may be in classified form right now, and maybe there will be
efforts to declassify it, to use it in context of the criminal
investigation. I think there are a lot of other pieces that foreign
governments will have and it`s going to be not just, you know, a U.S.-led
thing. Clearly, this will be an international effort with pressure put on
the --

HAYES: But even under these conditions, even what always seem -- the
sawed cockpit -- Lord knows what`s been carted off from the site. You
still think there could be evidence in that site that would establish what

BORELLI: I think there absolutely could be. I think we should not
give up on the crime scene. It`s not pristine. It`s not the way you would
like to see it.

HAYES: There`s still stuff.

BORELLI: Not by the book, but we should not rule it out.

HAYES: NBC News security analyst, Don Borelli -- thanks a lot.
Appreciate it.

All right. This is what the airspace over Israel looks like tonight.
The FAA has instructed U.S. airlines, they are prohibited from flying to or
from the main airplane that handles 90 percent of air traffic into and out
of Israel from abroad, a 24-hour period that started this afternoon.
Israel`s not happy about it. More on that, next.


HAYES: Palestinian journalist Rula Jebreal caused quite a stir
yesterday when she criticized this network for our coverage of the conflict
in Gaza. I disagree with what she had to say, and she will be here to hash
it out with me ahead.

Plus, Governor Rick Perry pulls the emergency lever to deal with the
border in Texas. One Democratic Texas lawmaker is having none of it, and
he will join me.

Stay with us.


HAYES: Israel`s access to much of the outside world is now cut off
following a decision by the Federal Aviation Administration to suspend all
American flights to and from Tel Aviv`s Ben Gurion Airport.

The 24-hour ban applies only to U.S. carriers, but some major European
airlines also canceled flights, including in France, KLM, and German
carrier Lufthansa. Even a Russian airlines jet from Moscow was forced to
turn around in midair on its way to Tel Aviv.

Israel hasn`t seen an aviation shutdown like this since the run-up to
the Gulf War in 1991, when Saddam Hussein was firing Scud missiles into his
territory. The reason for today`s ban, a single rocket fired from Gaza
striking a suburban house just a mile away from Tel Aviv`s Ben Gurion
International Airport. The largest airport in Israel, Ben Gurion serves 90
percent of flights in and out of the country. And given Israel`s location,
surrounded by less than friendly neighbors, Ben Gurion acts as the
country`s bridge to the rest of the world.

But it`s not just the psychological effect of having that bridge cut
off. If the flight ban coming at the height of summer tourist season lasts
for any significant length of time, it could take a really toll on Israel`s

Israel reacted strongly to the FAA`s decision. Transportation
minister saying, quote, "There is no reason for the American companies to
stop their flight and give a prize to terror."

State Department confirming Israeli Prime Minister Benjamin Netanyahu
raised the issue on a call tonight with Secretary of State John Kerry and
the rift between the Federal Aviation Administration and government of
Israel is not the only gap that`s opened up between American and Israeli
officials in recent days.

John Kerry in Cairo today to address the growing Middle East crisis
explicitly called for a cease-fire to end Israel`s ground incursion into


JOHN KERRY, SECRETARY OF STATE: The loss of lives and humanitarian
impact is really heartbreaking, and we`re joining our international
partners in reiterating our call for an immediate end to the fighting and a
return to the cease-fire that was reached in 2012.


HAYES: So far, Kerry`s exhortations have been unsuccessful. On a
phone call with Netanyahu on Sunday, President Obama raised serious
concerns about the growing number of civilian casualties in Gaza.

When it comes to current conflict, it`s become increasingly clear,
over the last few days particularly, the U.S. and Israel are not longer
quite on the same page.

Joining me now, James Fallows, national correspondent for "The
Atlantic", a guy very into planes, a flight nerd, and someone who`s covered
the Israel-Palestine conflict for a long time.

Let`s start with the flight part of it. I was surprised that Israel
was mad, because my first thought today was this would be an opportunity
for them to say to the rest of the world -- do we see what we`re living
under, do you see the threat we face? And now you, too, are feeling this

But that was not the reaction from the Israelis.

JAMES FALLOWS, THE ATLANTIC: Eight. I think if they had a better
sense of the U.S. psychology, perhaps that might be the argument they would

I think it`s probably -- despite the resistance on the Israeli
government side, I think it was the right thing for the U.S. government to
do. I say government as opposed to looking at each individual airline,
because as we obviously think back to the Malaysian shoot-down last week,
the problem there was that the burden was placed on individual airlines to
say, well, is the government restriction enough or not?

I think it`s good for the federal -- the FAA to say, look, for the
time being, we want these U.S. carriers to steer clear.

HAYES: Yes, how do you make that decision? I mean, you wrote a place
about whether, in the case of MH17, it should have been flying through a
war stone. Some people said it shouldn`t have. Some think it should.

You seem it think it wasn`t really to blame, it was flying high
enough. How do make that decision about -- how do you weigh the risks
here? We`re talking about one rocket that struck one house a mile from the

FALLOWS: Yes, that`s a risk. In the same time, it was an even more
remote possibility that brought down the Malaysian flight because only an
actual military anti-aircraft equipment could have brought that down.

HAYES: That`s right.

FALLOWS: -- which had not been used in that theater.

I think there are two options here, having governments, which have
intel capability and they can stand up sort of state-to-state, make these
decisions or have all the individual airlines. Imagine the friction now if
only Delta, or only United was sort of taking the heat. I think this is
actually the right thing and I wish ICAO, the international organization
was doing the same thing.

HAYES: It`s interesting to me that Netanyahu raised this issue with
Kerry because it`s part of what seems to me a broader rift sort of
appearing between U.S. policy right now on the war in Gaza and Israeli
policy which is we`re going to do this until we have destroyed the tunnels,
until we`ve achieved our military objectives -- and an American government
that`s increasingly saying, stop.

FALLOWS: This is true. You and I both know, I with even longer
tenure than you, a lot longer tenure than you, that this is an unusual time
because the U.S. with all of its long history of support for Israel is
saying that the strategic consequences of this move just do not seem
promising in any way. I think it was defense minister yesterday who said
the -- the Israeli defense minister -- that this would go on until it
brought quiet to Gaza.

The track record of bringing quiet to operations like this is not

HAYES: And yet, at the same time, it is another indicator of the
realness of rockets, which obviously we`ve been covering the horrible
humanitarian toll, civilians dead in Gaza, over 600. Israelis have been
living under this constant threat, and though the death toll has been
nothing remotely like it, in fact, rockets haven`t killed anyone, there is
the constant sense of being under siege that Israelis genuinely feel and is
driving Israeli politics at a moment when it seems to me, from what I can
tell, vast swaths of a majority of the populist there support the continued
ground invasion in Gaza.

FALLOWS: Now, one would certainly not minimize the toll of these
rockets and the fear they engender especially in Southern Israel, nor one
minimize the wave of apparently anti-Semitic outbreaks happening especially
in Europe where people are not going to Israeli consulates to protest but
the synagogues which is not the way you protest state policy.

So, this is a real, real situation, but it seems as if it`s driving
the Israeli center of its politics in a direction that is going to estrange
it further from the United States on current course.

HAYES: And yet you are seeing in -- I think part of this we`ve had
reporting on this network, on NBC News, of just the horrible human toll in
Gaza. And that, I think, is driving right now where John Kerry and
president are coming from.

James Fallows from "The Atlantic" -- thank you so much.

FALLOWS: Thank you, Chris.

HAYES: Palestinian journalist Rula Jebreal appeared on this network
yesterday and criticized the way we`re covering the situation in Gaza. I
think we`re doing a good job covering the crisis. She`ll be here to talk
to me, ahead.


HAYES: If you`ve been following the news from Gaza, you know there`s
a ground offensive going on and also a media war, a public relations battle
waged on television, radio and the comment section of every single report
that is written or produced about it.

Last night, Jon Stewart brought that PR war to life.


JON STEWART, THE DAILY SHOW: We`ll start tonight in the Middle East
where Israel --

UNIDENTIFIED MALE: What, Israel isn`t supposed to defend itself?

UNIDENTIFIED FEMALE: Oh, yes, if Mexico bombs Texas --

UNIDENTIFIED MALE: Country held to the same standard as --




STEWART: Just merely mentioning Israel, or questioning in any way the
effectiveness or humanity of Israel`s policies is not the same thing as
being pro-Hamas.

UNIDENTIFIED FEMALE: So you`re against murder children?






Why don`t we just talk about something lighter like Ukraine?

UNIDENTIFIED MALE: Yes, I`m good with that.


HAYES: That is pretty on point. I`m going to talk with the Gaza
media wars with someone who came on this network yesterday to call our
coverage of the conflict, quote, "disgustingly biased." That`s next.
Stick around.



RULA JEBREAL, JOURNALIST: We`re ridiculous. We are disgustingly
biased when it comes to this issue. Look at how many airtime Netanyahu and
his folks have on air on a daily basis, Andrea Mitchell and others. I
never see one Palestinian being interviewed on these same issues.


UNIDENTIFIED MALE: Well, I will push back on that a little. We have
had Palestinian voices.


JEBREAL: Maybe for 30 seconds, and then you have 25 minutes for Bibi
Netanyahu and half-an-hour for Naftali Bennett and many others.


HAYES: All right, that happened, that exchange play yesterday on air
in this building.

Rula Jebreal, who had that criticism of this network`s coverage of the
conflict in Gaza, later tweeted this -- quote -- "My forthcoming TV
appearances have been canceled. Is there a link between my expose and the

Let me take you behind the curtain of cable news business for a
moment. If you appear on a cable news network, you trash that network and
one of his hosts by name on any issues, Gaza, infrastructure spending,
sports coverage, or funny Internet cat videos, the folks at the network
will not take kindly to it. Not some grand conspiracy at work. Fairly
predictable case of cause and effect.

But I know Rula Jebreal. I like Rula Jebreal. We have had a lot of
conversations on this topic and others. I know the issue of how the fight
in Gaza is covered in the media is an important one. And I actually think
we`re doing a pretty good job. I wanted to invite Rula Jebreal to join me
here tonight to hash it out.

Rula, I`m glad you`re here.

JEBREAL: Thank you, Chris, for having me.

HAYES: All right, so, first, let me say this. Andrea Mitchell
specifically I think she is an exemplary journalist, in my opinion. I
think her work speaks for herself. I don`t want to litigate her

I do think the point you`re making broadly about an imbalance in the
representation of Palestinians and Israelis or Arabs and Jews around the
conflict has largely been true broadly in the media, right? I agree with
you on that. That has been the case.

I think our network, this time around, and I think the media more
generally, and now I`m talking about "The New York Times" and other places,
have been doing a much better job in this conflict. I think the image that
most Americans are seeing from this conflict, by and large, are images of
the destruction in Gaza.

I think that`s been the defining feature of this, and, in fact,
there`s all these people talking about how the Israelis are losing the
media war for the first time.

JEBREAL: Listen, if that`s true, then you have to explain to me why
the public opinion is 99 percent for Israelis, if that`s true, why the
scholars, the most respected American scholars, Juan Cole, for example, who
you invited, yourself, first to study that explained that, in 2011, --
actually `12, the last...


HAYES: The last time we had the Gaza conflict.

JEBREAL: You had -- on one network, CNN, you had 45 Israeli officials
vs. 11.

This time around, you have -- between June 13 and July 10, you had 17
Israeli public officials vs. one. Let me also finish.



JEBREAL: What I was talking about yesterday -- and my frustration
comes from my love for journalism and media and my love for unbiased

I think we are really creating a disservice to our public opinion in
America. Let me just explain why. Not only because we`re giving more
airtime to the Israelis, but actually we are not covering the content in
which -- the context in which the conflict is taking place.

Most Americans think, OK, Israelis are minding their own business and
Palestine wake up one day in Gaza and they decide, OK, let me fire
missiles. This is not what`s happening. They don`t know anything about
the siege, the 1.8 million Palestinians leaving under siege in extreme
poverty with 90 percent didn`t don`t have access even to water.

So, the military occupation in the West Bank, they don`t understand
and they don`t even know what`s going on.

HAYES: OK. Let me say two things.

JEBREAL: Please.

HAYES: One in terms of this imbalance of officials, I think that
imbalance in officials is a product of a lot of things. One of them is, we
set out last week -- I said I want to talk to the Israeli officials and I
want to talk to Hamas officials.

It is, it turns out, extremely difficult to get a Hamas official to
come on your TV show, right?

JEBREAL: You don`t have to. Palestinians are not only Hamas.


HAYES: Of course, but, in this case, but, in this case, those are the
two entities that are fighting right now, right? I mean, those are the two
people -- the two groups that are fighting each other are the Israeli --
the IDF and Hamas. Right?

JEBREAL: Let me continue the second piece of my thought.


JEBREAL: Us, by forming the public opinion in that direction, what we
are suggesting to the audience, that Hamas is the only existing entity,
it`s fighting with Israel, ignoring, of course, the moderates, and not
understanding that by backing these kind of policies, listen, public
opinion, of course, will be translated in eventual policies and supporting
for certain policies from our politicians.

We`re strengthening Hamas and undermining more and more the moderates.
We are actually supporting the Israeli policies that are being destructive
and will not guarantee securities and undermining American interests in the
world and in the region. This is simple facts.


HAYES: Let me agree with you on one place of agreement. The way the
crisis is covered, if there is violence, we cover it. If there`s no
violence, we don`t cover it. And I think that creates an imbalance that
puts us in a situation in which the forces that are pursuing violence end
up being the most empowered, because if you sit quietly and you negotiate,
like Mahmoud Abbas has been doing in the West Bank and the Palestinian
Authority, no one covers it.

That is a structural problem.

JEBREAL: Can you please dispute that some networks -- and I`m not
talking -- I think MSNBC has been doing better job than others, but some
networks, you have 25 minutes of Bibi Netanyahu all Sunday shows, and all
Monday shows and others...


HAYES: But that`s true for so many other issues.


JEBREAL: And on the Palestinian sides -- but then when it`s
translated to failed policies, you have to question our responsibility in
the media.

You can`t say that our responsibility in the media is to promote these
kind of views and that are translated into backing Israel

HAYES: But if you, look...

JEBREAL: And supporting it and all the level, policies that are
failing on the ground.


HAYES: Let me say one more thing. I agree the policies are failing.

JEBREAL: We`re insecure. We`re less secure as Americans because of
these failed policies.

HAYES: I agree. I agree.

But let me say this also. Airtime always strikes me as a bad metric.
Right? And let me just say this final point. There are interviews and
there are interviews. Right? You can talk to -- I had Mark Regev on this
program for 16 minutes. All right? That`s a very long interview. But
there was a lot to talk to him about.

And you know what? If I can get a Hamas representative to come for 16


JEBREAL: You really with all honesty are telling me that the
Palestinians are interviewed on the same way...


HAYES: No, they are not. They are not. They are not. No, I don`t
think the numbers bear that out.

JEBREAL: And the whole conflict is represented the same way?


JEBREAL: And I`m not talking as a Palestinian. I`m talking as
somebody that works in the media that feel the responsibility towards my
audience, and feel that, you know what, we have ethics.

And I came to journalism after living under occupation, coming here,
believing in one thing, that America is about two, three things. One of
them is freedom of speech. When I come back from Europe after being there
and look at the media here, I am stunned and I am actually concerned that
our interests in the world, our standing in the world is being undermined
because of our...


HAYES: Let me just say this. I think that this coverage of this
conflict, I think this conflict, and I think if you look at American
opinion about how they feel about this conflict, has been different than
the last two.

Rula Jebreal...

JEBREAL: Yesterday, CNN said, most Americans, 90 percent love Israel
and hate...


HAYES: Right. But this conflict, I think you will see it borne out
in the public opinion.

JEBREAL: We will see that.

HAYES: Thank you for coming on.

JEBREAL: Thank you.

HAYES: All right.

Here`s a question for you. How is the Affordable Care Act -- this
seems like a ridiculous segue. How is it the Affordable Care Act like
Domino`s Pizza? And a follow-up, how does a court`s answer to that
question control the fate of Obamacare? That`s next.


HAYES: All right. Around 10:30 a.m. Eastern time today, Obamacare
was in deep, deep trouble.


UNIDENTIFIED MALE: And in news just in, a federal appeals court has
dealt a major setback to Obamacare.

UNIDENTIFIED FEMALE: More breaking news. This time, it concerns
Obamacare and a dramatic blow by a federal appeals court aimed at health
care tax credits.


HAYES: Two hours later, however, things were looking up.


breaking news now, a second federal appeals court has reached a conflicting
opinion, another decision, in connection to tax credits granted through the
Affordable Care Act.


HAYES: OK. So here`s what happened.

There were two rulings concerning the latest legal challenge to
Obamacare, which is perhaps at once both the most ridiculous and the most
threatening challenge the law has faced.

The case is built on a single sentence in the law that authorizes
health care subsidies for low-income Americans purchasing insurance, and
that sentence says the subsidies which, let`s keep in mind, are the key to
the affordable part in the Affordable Care Act, that those subsidies are
available to people who enrolled "through an exchange established by the
state under 1311."

That`s the section of the law that sets up state-based health care
exchanges. OK. But 36 states are not using state-based exchanges.
They`re relying at least on part on the federal health care exchange. So
having lost every other fight to destroy the law, conservatives pointed to
that line to argue that only those who enroll through state-based exchanges
in the minority of states that set them up are eligible for the health care
subsidies that are the key to the whole bill.

If you went through the federal exchange, they said, you`re out of
luck by the letter of the law. No subsidies for you. If that`s truly the
case, Obamacare basically falls apart or at least it does in the 36 mostly
Republican-run states that haven`t set up their own exchanges. You need
the subsidies to make the system work.

Without them, according to one estimate, premiums in federal exchange
states increase 76 percent, and more half of the eight million Americans
who purchased subsidized coverage would have to pay more. In the first
ruling today, a three-judge panel, two Republican-appointed members of the
federal D.C. Circuit Court, which is one step below the Supreme Court,
effectively argue that even though the whole point of Obamacare is to
provide affordable health care coverage for all Americans, Congress never
authorized subsidies for Americans who enrolled through the federal

In other words, they found that Congress in that little sentence, they
drafted a law that contradicted the law`s intent. In the other federal
decision today, this one from the Fourth Circuit Court of Appeals, a three-
judge panel all appointed by Democrats came to the conclusion that when
you`re trying to interpret a law, you should assume the law was not
constructed to render itself inoperable.

One of the judges used a pizza analogy to make the point. "If I asked
for pizza from Pizza Hut for lunch, but clarified I would be fine with a
pizza from Domino`s," the justice wrote, "and I then specify I want ham and
pepperoni on my pizza from Pizza Hut, my friend who returns from Domino`s
with a ham and pepperoni pizza has still complied with a literal
construction of my lunch order."

Joining me now, Laurence Tribe, constitutional law professor at
Harvard Law School, author of "Uncertain Justice: The Roberts Court and the
Constitution," who`s been banging the drum on this case.

Two decisions today, Professor. Who got it right?

Circuit got it right, and I think Judge Edwards, who dissented in the D.C.
Circuit, got it right, but I wouldn`t absolutely count on the U.S. Supreme
Court to get it right, because I think there are four justices there, the
same four who were prepared to invalidate all of the Affordable Care Act,
who tend for the literal reading of statutes.

And there are four justices who tend to focus very much on what would
make the law sensible. But the D.C. Circuit said that an unintentional
drafting gap is enough to require a literal reading, even if it makes the
law fall apart.

HAYES: I want to emphasize something I think is important here. In
the last challenge we had about the mandate, the constitutionality of the
mandate, there was at least a kind of principle at stake, perhaps, about
whether the government could compel you to do this thing and whether it was
a tax, all sorts of constitutional issues at stake.

There was an ideological content. There is no ideological content
here. Plaintiffs are arguing these idiots screwed up and eight million
Americans should have to eat it, basically.

TRIBE: And there is in a way a constitutional principle at stake,
because if you actually read the law that way, then a number of people,
it`s unclear how many, but the Fourth Circuit says quite a few people may
end up having not only to eat it, but having to pay a penalty if they don`t
eat it, and at the same time not getting the money that they need to afford
to buy it.

That might be unconstitutional. And one other theory seems to be that
what Congress was trying to do was perhaps put pressure on the states to
create their own exchanges and do it by holding people in those states

HAYES: Right.

TRIBE: If you don`t create an exchange, the people in your state...

HAYES: Don`t get the subsidies.

TRIBE: ... who are lower income don`t get the subsidy.

That might be an unconstitutional form of pressure on the states. So
in a way, the very same kind of practical reasoning that led Chief Justice
Roberts in the earlier knockdown round of Obamacare to say that he would
interpret the law as a tax, even though that required a bit of bending,
might lead him to say that he will interpret the unintended gap in this law
as though Congress had written what it meant to write.

And I think that`s what ought to happen, but if it does, it`s likely
to be 5-4. So it`s going to be another cliffhanger in the U.S. Supreme

HAYES: OK. So next -- this case right now, there`s -- you have got
one circuit, D.C. Circuit saying one thing, Fourth Circuit saying another.
The D.C. Circuit was a three-judge panel. It could be heard what is called
en banc, right, which is the entire D.C. Circuit.

And there`s an interesting wrinkle here, which is that D.C. Circuit
looks very different than it did a year ago, because after Harry Reid
engaged the nuclear option and got rid of judicial filibusters, this White
House was able to put a number of people on that specific powerful court
just in the past year that changes the composition. How does that affect
how this might play out in the next round?

TRIBE: Well, it`s partly going to be up to the solicitor general. Is
he going to ask the full D.C. Circuit to consider the case before the
losers in the Fourth Circuit, the ones who wanted to rip Obamacare apart
completely, go straight to the U.S. Supreme Court, which is what they might

So it`s really very hard to plan out exactly who`s going to get where

HAYES: But let me be also, just to go back to the sort of bad faith,
the bad faith of this really does bother me, actually, I have to say, even
as someone who likes sort of interesting legal issues.

Let`s just be clear. There wasn`t a plaintiff walking around who was
like, I`m being injured by this misconstrual of a statute. Right? This
was just brought by people that want to destroy Obamacare.

TRIBE: No, well, they actually did find people with injuries.

HAYES: Of course, right.

TRIBE: They found people who had some dollar injury and that was all
it took in order to get standing.

But clearly the purpose of the suit was to dismantle the Affordable
Care Act. No one doubts that. That isn`t so different from lots of
ideological litigation.

HAYES: Right, impact litigation.

Laurence Tribe from Harvard Law School, I really appreciate it. Thank

TRIBE: Right. Thanks, Chris.

HAYES: All right, Governor Rick Perry is sending up to 1,000 National
Guard troops to the border, cannot really explain why. We will talk about
that next.



BRIT HUME, FOX NEWS: Governor, but the question I`m trying to get at
with you is this. If these children who have undergone these harrowing
journeys to escape from the most desperate conditions in their home
countries have gotten this far, are they really going to be deterred by the
presence of troops along the border who won`t shoot them and can`t arrest

GOV. RICK PERRY (R), TEXAS: Yes, I think we`re talking about two
different things here. And what we`re talking about is sending the message
back now so we can staunch the bleeding.


HAYES: Just over a week ago, FOX News host Brit Hume seemed to be
having a difficult time understanding exactly why Texas Republican Governor
Rick Perry wanted to send National Guard troops to the Texas border with

And, yesterday, Governor Perry announced he would, indeed, be
deploying as many as 1,000 National Guard troops to the border. Still,
some people are left without a clear rationale for why this is happening,
including the law enforcement officials in the governor`s own state.

"Dallas Morning News" quotes a sheriff from the southernmost county in
Texas saying: "I don`t know what good they can do. You just can`t come out
here and be a police officer. A lot of people do things for political
reasons. I don`t know that it helps."

A commander of the Texas National Guard told "The Dallas Morning News"
his troops would undergoing training and be deployed slowly over the next
month. In other words, despite the emergency atmosphere surrounding the
order by Governor Perry, the border of Texas will likely remain unguarded
by the Texas National Guard for another few weeks.

Meanwhile, the White House and senior administration officials,
including Department of Homeland Security Secretary Jeh Johnson, got on the
phone with governors across the country today to talk about the situation
at the border.

Some of the news from the administration this afternoon included a
decision to speed up deportation of Central American adults who arrive here
without children.


adults who come here without their children as part of this recent rise in
illegal migration, we have dramatically turned the time around that it take
-- we have dramatically reduced the time that it takes to repatriate and
remove these adults from an average time of something like 33 days down to
four days.


HAYES: Homeland Security Secretary Johnson also added federal border
control agencies will soon run out of money without emergency funds from

A short time later, Senate Democrats announced they plan to unveil a
$2.7 billion border funding bill, a billion dollars less than the
president`s initial request.

Joining me now, Congressman Beto O`Rourke, Democrat from Texas.

And, Congressman O`Rourke, Governor Perry says Border Patrol is too
occupied and overwhelmed with dealing with these children and sometimes
these children coming with their moms, so the Guard is going to basically
backfill the role of standing guard to make sure criminals and bad guys
don`t run over the border. What`s so wrong about that?

REP. BETO O`ROURKE (D), TEXAS: You know, the Border Patrol are doing
an excellent job in Texas and they don`t need the National Guard.

By any measure that you look at, the border between the U.S. and
Mexico and Texas has never been safer. I know a lot of people don`t want
to believe that, but if you look at the numbers, in 2000, we had 1.6
million apprehensions. Last year, we had a little over 400,000.

I represent the safest city in America today, and that`s El Paso,
Texas, the largest truly binational city on the U.S./Mexico border. And if
it`s these kids that the governor is scared about, in June, we had about
350 kids trying to enter the U.S. on average per day. As of last week, the
number is down to 150.

So any way you want to look at this, whether it`s the amount that
we`re spending on the border, which is $18 billion a year, more than all
other federal law enforcement combined, the number of northbound
apprehensions, or the record number of southbound deportations, almost two
million under this president, this situation is in hand, and there`s no
practical, legitimate reason to militarize it now.

HAYES: Is it a stunt?

O`ROURKE: You have to wonder.

I don`t want to question someone else`s motivations, but when you look
at the facts, when you talk to law enforcement on the ground, when you
speak to the Border Patrol, if we do anything, let`s add to the Border
Patrol in the Rio Grande Valley.

Let`s take from other sectors that are secure, move assets to where we
may have some manning issues. But let`s not militarize this situation.
One of the last times that we did this, in the 1990s, we shot and killed a
fellow U.S. citizen, an 18-year-old farmer, Ezekiel Hernandez, who was a
U.S. citizen on the U.S. side of the border, shot by a Marine who was
placed there at precisely the wrong place and the wrong time.

The Border Patrol are trained to apprehend migrants, to stop drug
smugglers, to do the job of protecting the border. The U.S. military is

HAYES: What about this idea of atmospherics, that basically the key
here is that these rumors have drifted down to Central America, El
Salvador, Honduras, and Guatemala primarily, where 80 percent of these kids
are coming from, that basically says we`re welcoming you with open arms, if
you`re running away from this terrible situation, come, come, come, you
will get a fair shot here, maybe you will get a refugee status, and that
the optic somehow of people at the border with guns will dispel that?

O`ROURKE: Well, I don`t know about that.

If it were simply Central American kids exploiting some loophole in
our generosity, our compassion, or our laws, then you would see kids from
Nicaragua. That is the second poorest country in the hemisphere after
Haiti. And I have spoken to the folks who are working with the families
and children in El Paso.

And of the thousands who have come through, not one Nicaraguense has
been there. So, what we have is a very desperate situation in three
countries, through which most of the drug traffic that ends up in this drug
market, the largest in the world, passes.

We have three countries that have been neglected when they have severe
governance and corruption and human rights issues. And we have three
countries where, when we do involve ourselves, in the 1980s, or going back
to the 1950s in Guatemala, where we knocked off their democratically
elected president, our intervention is -- has very negative consequences.

And so when you look at our involvement in Central America, you see
that we have some ownership in this issue. There`s some culpability on the
part of the United States. And we also are presented with a humanitarian
issue, young children on their own presenting themselves for asylum.

I think it`s very clear that we need to do the right thing. We have
the capacity to do the right thing. There`s no crisis at the border.
There`s simply an opportunity to help those who are in need and who deserve
our aid right now.

HAYES: Congressman Beto O`Rourke of El Paso, the safest city in
America, he tells me. We will have to fact-check that.

That is ALL IN for this evening.


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