The Rachel Maddow Show, Transcript 12/14/09

Guests:
Kent Jones, Sen. Ron Wyden, Steve Benen, Meredith Fuchs, Katie Parker
Transcript:

RACHEL MADDOW, HOST:  Good evening, Keith.  Thanks very much for that.

And good evening from Washington, D.C., being this close to the Capitol does not make Senator Joe Lieberman‘s stand against health care any easier to swallow.  We‘ll review it with Senator Ron Wyden of Oregon, who‘s sitting right here with me.

Senator Tom Harkin‘s got a radical plan to make Joe Lieberman‘s opposition irrelevant.  We will assess likelihood of filibuster-busting.

The Bush administration played “Dog ate my homework” with tens of millions of e-mails they weren‘t supposed to lose.  And tonight, those e-mails are found.

And be amazed or afraid or both.  We have some astounding video of an octopus being really resourceful with a coconut.  I know this is a news show and everything, but trust me, this—it‘s newsworthy.

All that ahead.

Plus, an update on American politicians and the “kill the gays bill” in Uganda that we have been covering for more than a week.

But we begin tonight with some legitimately breaking news coming from the building right over my shoulder.

Senate Democrats just emerged from a reportedly tense closed-door meeting on health reform to announce that one of the cornerstones of their latest agreement is close to being ditched.  Democratic Senator Max Baucus of Montana is telling reporters tonight that the proposal to let people younger than 65 get Medicare is now likely to be out of the bill.

The Medicare buy-in is what Senate liberals were expecting to get in exchange for giving up on the public option.  The plan was to lower the eligibility age for the ever-popular Medicare program, allowing people aged 55 to 65 to pay to participate in it.

Now, according to a number of Senate Democrats, that provision is out.  Who‘s responsible?  Most likely, it‘s—you guessed it—Senator Joe Lieberman of Connecticut.

The way Senate liberals decided to compromise with Joe Lieberman when he said he wanted to kill the public option was to drop that public option in exchange for something that everybody knows Joe Lieberman supports—the expansion of Medicare.

Nine years ago, Democratic vice presidential candidate, Joe Lieberman, sang the praises of the Medicare buy-in when he was stumping alongside Al Gore in places like Maine, where he talked to the “Bangor Daily News” saying, quote, “Lieberman said during the interview that the fastest growing group of uninsured are those 55 to 65.  For that reason, the ticket, meaning Gore and Lieberman, proposes an expansion of Medicare to allow those and older to buy into the public program.”  That was nine years ago.

Three years ago, in 2006, when he was being challenged from the left in a primary in his home state by Ned Lamont, Mr. Lieberman supported expanding Medicare then as well.  Three months ago, he talked about that campaign stance favorably when he was asked about it by the “Connecticut Post.”

This video obtained from “The Connecticut Post” by reporter Greg Sargent today.

(BEGIN VIDEO CLIP)

SEN. JOE LIEBERMAN (I), CONNECTICUT:  When it came to Medicare, I was very focused on a group post-50, maybe post—more like post-55, people who have retired early or, unfortunately, have been laid off early, who lose their health insurance and they‘re too young to qualify for Medicare.  And what I was proposing is that they have an option to buy into Medicare early, and again, on the premise that that would be less expensive.

(END VIDEO CLIP)

MADDOW:  An option to buy into Medicare.  The Medicare buy-in is, essentially, a trademarked Joe Lieberman policy idea.  It‘s an idea that he‘s promoted and explained and campaigned on repeatedly.  Expand Medicare by allowing people younger than 65 to buy into it.

This is the thing for which liberals were asked to trade away the public option.  Get Joe Lieberman on board, supporting health reform, by killing the public option and replacing it with something Joe Lieberman likes, expanding Medicare.

Surprise!  Joe Lieberman‘s now against expanding Medicare, all of a sudden.  So against it, in fact, that he‘s not only going to vote no on any bill that expands Medicare, he promises to filibuster and block anyone else from voting on any bill that expands Medicare—which, don‘t forget, was his idea.

And the more you look at the details of this, the worse and weirder it gets.  Last week when Senate Democrats announced they had reached a broad agreement and the idea of a Medicare buy-in was reported to be included in that, here‘s how Senator Lieberman responded.

(BEGIN VIDEO CLIP)

NEIL CAVUTO, FOX NEWS:  Which way you‘re going to go on this?

LIEBERMAN:  Good to be here.  Well, the direct answer is, Joe doesn‘t know, because Joe doesn‘t know what‘s—nor do most other members of the Democratic Caucus—know what‘s in the compromised proposals that came out of the “Group of 10” senators that Senator Reid sent to the Congressional Budget Office.  The announcement, really, is that—I don‘t know how anybody can decide until you see the actual language of these compromised proposals.

(END VIDEO CLIP)

MADDOW:  Joe knows that Joe can‘t decide until he sees the Congressional Budget Office score.  Senator Lieberman wasn‘t exactly warm to the compromise, but he at least committed to waiting to pass judgment on it until he knew what the financial costs of it would be.  That was what he said on Thursday.

Three days later, on Sunday, Senator Lieberman decided even that didn‘t matter to him anymore.  Three days after saying he would wait to hear what the CBO said, after saying everyone should wait to see what the CBO said, he decided he didn‘t care what the CBO said.  He was against it already, no matter what.

(BEGIN VIDEO CLIP)

LIEBERMAN:  On one part of it, the so-called “Medicare buy-in,” the opposition to it has been growing as the week has gone on.

BOB SCHIEFFER, CBS NEWS:  What do you have to do to do that?

LIEBERMAN:  You‘ve got to take out the Medicare buy-in.

(END VIDEO CLIP)

MADDOW:  You got to take out the Medicare buy-in I have been proposing for years.

And Mr. Lieberman is not only against his own trademarked health policy idea, he‘s not only not waiting for the CBO score that he once held up as a necessary precursor to any judgment on the bill.  Senator Lieberman is now promising to kill the entire bill if that provision remains in it.

And tonight, he appears to be winning.  Again, said Mr. Lieberman a short time ago, and I quote, “Put me down tonight as encouraged about the direction these talks are going.”

Joining us now is Democratic Senator Ron Wyden of Oregon.  He‘s a member of the Senate Finance Committee.

Senator Wyden, it‘s good to see you.  Thanks very much for coming in.

SEN. RON WYDEN (D), OREGON:  Thank you, Rachel.

MADDOW:  I know it‘s uncomfortable for senators to sit through somebody else criticizing other senators.  And so, I realize this isn‘t the easiest discussion to have.  But I have to ask you, if what my take is on Senator Lieberman‘s position seems right to you.  Am I getting any of this wrong?

WYDEN:  Listen, it‘s obvious that he is looking at this proposal.  He has mixed feelings about it.  But this cake is far from baked.  We are waiting now from the Congressional Budget Office, their positions.

I think we ought to send a message to progressives all across the country, let‘s keep fighting.  We want to turn the tables on the insurance lobby.  I‘ve been working on this since before you were born.  It‘s hard for me to admit it.  I was co-director of the Gray Panthers.

Insurance companies were ripping people off then, they are still doing it.  And Democrats in our caucus are going to stay at it until we get real reform.

MADDOW:  I know you were in the closed-door meeting tonight among Senate Democrats on Capitol Hill.  Can you tell us about what the strategy is, either of the leadership or of the caucus as a whole moving forward?

WYDEN:  It was a very powerful session.  Senators walked into that room, knowing that folks at the grassroots level are counting on us.  They‘re counting on us to really get health reform right.  Single moms from Portland, Oregon, to Portland, Maine, who go to bed at night in a cold sweat, want to know, for example, that insurance companies can‘t cancel them if they get sick.  They want to make sure that there‘s real competition, that there‘s real choice, that there‘s a way to hold those insurers accountable.

I think it‘s the view of the caucus that what we need to do is lay a strong foundation—a foundation that we can build on in the years ahead.  We are not going to get everything that we want in round one, but we‘re going to get a foundation that we can build on in the years ahead.

MADDOW:  If what is passed, if what you can get done politically right now is no public option and no expansion of Medicare, so, essentially, while private insurance will be reformed, Americans will be forced through the mandate to buy private insurance.  If that is what can be done in round one, is there not a risk that Americans will be so aggravated by being forced to spend money on the private insurance industry, which we all feel is ripping us off, that there will be no political capital left to go back to the health care reform again?

WYDEN:  We certainly have to make health coverage affordable.  For example, I‘m particularly concerned about the years before 2014 when the bill kicks in.  So, I‘ve suggested that that insurance premium fee, it‘s about $6.7 billion, it‘d be adjusted.  If insurance companies hold their premiums down, they wouldn‘t pay as much tax.  If they don‘t, they‘d pay more tax.

So you bet, we need to take additional steps to make coverage more affordable, to offer more choice, and Senator Reid made it clear tonight that he‘s open to good ideas that can help us get the votes we need to pass reform.

MADDOW:  Is there going to be any competition for private health insurance companies?

WYDEN:  We‘re going to make a start here.  I believe that the proposal with the Office of Personnel Management, this is the proposal that‘s modeled after members of Congress, if we can make sure that folks across this country have a wide array of choices the way members of Congress do, and we can get folks into big groups—groups with a lot of healthy people, so there‘s not the adverse selection that jacks up premiums, we can make a start and start particularly with insurance reform.

MADDOW:  I can tell the contrast between when you and I have talked about what‘s possible on health reform today versus what we‘ve talked about in previous days.  And I realize that there‘s still, to get anything is still going to be a big public push from the Democrats.

If what‘s possible right now has become so limited, because of the opposition of conservatives within the Democratic Caucus—does it make sense to use reconciliation, which would require only 51 votes, not 60, but would probably make the process take longer and would require it to be revisited in five years?

WYDEN:  First of all, with reconciliation, you can‘t get any of the insurance reforms.  Reconciliation deals with budget matters.  So you can‘t get the protection for folks from preexisting conditions.  You can‘t protect them from cancellations.  You can‘t even get the exchanges up and running.

Let‘s make sure folks know what we are going to get.  We‘re going to get 30 million people covered.  We‘re going to get these insurance reforms, lifetime limit protections.  We‘re going to get a real foundation.

I don‘t want people across the country, activists who have worked for months and months to understand that we are getting everything that we have sought.  But I think we are getting enough to say that this is a foundation and we‘ll will able to send a message to those activists that their hard work has paid off.

MADDOW:  Is there anything that‘s likely to pass that would go into effect in 2010?

WYDEN:  Absolutely.  I want to make sure, for example, that protection with respect to pre-existing conditions, if that goes into effect, we‘re going to have at a minimum a re-insurance pool, so that those protections get in place quickly.

MADDOW:  Senator Ron Wyden, Democrat of Oregon, it‘s a real pleasure to talk to you about this.  Thank you for coming in.

WYDEN:  Thank you.

MADDOW:  Today, it‘s health reform.  Tomorrow, who knows what crucial legislation will get whacked with a filibuster by Joe Lieberman, maybe, or some future Lieberman.  Is it time to take away that particular legislative stick?  Should the rules of the Senate be changed to stop one senator from seizing this much country-changing power?  That issue is next.

Plus, in seven states, it is illegal to hold public office if you are an atheist.  Seven states in the United States of America, in the 2000s, yes, currently.  One newly elected official is having his job threatened because he doesn‘t believe in God.  That‘s coming up.

(COMMERCIAL BREAK)

MADDOW:  For a couple of months now, Senator Joe Lieberman has been blocking all of health reform personally, saying he will filibuster it along with Republicans, unless he gets every single thing he wants in the bill.  Joe Lieberman did not always feel this way about the filibuster.

(BEGIN VIDEO CLIP)

LIEBERMAN:  And it also fuzzes up the whole question of accountability.  If the majority is held accountable for producing, if the minority makes it impossible for the majority to produce, because you need more than 51 votes to pass a bill, then how‘s the—how‘s the public going to fairly hold the majority accountable?

(END VIDEO CLIP)

MADDOW:  Joe Lieberman‘s once-upon-a time, totally reasonable principled argument against it taking more than 51 votes to pass a bill—against what Joe Lieberman is doing right now to kill health reform.  If only there was a way to introduce Joe Lieberman today to his younger, more principled self.  More to come.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

LIEBERMAN:  If the public option plan is in there, as a matter of conscience, I will not allow this bill to come to a final vote.

I would vote to stop final vote on this health care reform bill.

I would use the power I have as a single senator to stop a final vote.

(END VIDEO CLIP)

MADDOW:  That, of course, is independent Senator Joseph Isadore Lieberman of Connecticut, very clearly enunciating his position on the use of the filibuster this year.  This year, in 2009, Joe Lieberman loves the filibuster.  He calls it “the power I have as a single senator.”  It‘s almost romantic.

But, you know, there‘s a funny backstory to Senator Lieberman‘s current love affair with the filibuster.  Once upon a time, Senator Lieberman hated the filibuster.  He hated it so much that he actually co-sponsored anti-filibuster legislation with Senator Tom Harkin of Iowa.  Senator Lieberman and Senator Harkin tried to kill the filibuster.

According to the “Hartford Courant‘s” reporting on January 6th, 1995, contemporaneous reporting, quote, “The filibuster, Lieberman said, hurts the credibility of the entire Senate and impedes progress.  He spoke of the tyranny of the minority.”

After the anti-filibuster measure failed by a big margin back then, Senator Lieberman decried the vote against it.

(BEGIN VIDEO CLIP)

LIEBERMAN:  The filibuster, as wrong as it is, and as unfortunate as its consequences have been, because it‘s created gridlock, has increased the power of every individual senator.  And senators are not too good at yielding individual power.

(END VIDEO CLIP)

MADDOW:  This is the same senator who now waxes poetic about using his power as a single senator to kill health reform; then waxing poetic about greedy senators being unwilling to yield their individual authority.

After his and Tom Harkin‘s proposal to kill filibuster failed, Senator Lieberman said at the time that he would keep fighting to kill it.

(BEGIN VIDEO CLIP)

LIEBERMAN:  So we‘ve laid down our mark here.  We‘ve made a first charge at the fortress of the status quo in the Senate.  We didn‘t breakthrough, but we‘re going to keep charging.

(END VIDEO CLIP)

MADDOW:  Going to keep charging.  He‘s going to keep charging until he stops and then starts charging in the opposite direction.

But while Joe Lieberman may have spectacularly abandoned the charge against the abuse of the filibuster, the abuse of the power of one senator to bring the nation to its knees, Senator Harkin, his one-time partner on this issue, has not given it up.  Harkin is telling “The Iowa Hawkeye” newspaper that he may revisit the kill the filibuster movement he took up 14 years ago with his old pal, Joe.  And instead of partner or co-sponsor or advocate, Lieberman‘s role in this second anti-filibuster push will be as the nation‘s walking, talking, filibuster-threatening evidence of what it looks like when a single senator decides to take this power to extremes.

Joining us now is Steve Benen, who writes for “Washington Monthly.”

Steve, thanks very much for coming on the show.  It‘s good to see you.

STEVE BENEN, WASHINGTON MONTHLY:  Good to see you.  Thanks for having me.

MADDOW:  When Senators Lieberman and Harkin tried to get rid of the filibuster, the 60-vote rule 14 years ago, it failed really badly.  It only got 19 votes.  If Harkin brings this back, is there any chance that it would do better now?

BENEN:  Well, it‘s going to be—it‘s a long haul.  It‘s an uphill climb.  To pass a bill takes 51 votes, to overcome a filibuster takes 60 votes, to change the Senate rules takes 67 votes.  So, if Harkin reintroduces the measure, it‘s going to be pretty difficult.

That said, I think it‘s likely to get more than 19 votes.  When it was first introduced in 1995, there were 39 cloture votes that year.  Cloture votes being the votes to end filibusters.  Last year, there were 139.

So, what we‘re seeing is an explosion in terms of the abuse of the process.  And so, with that in mind, I think it‘s safe to assume that there‘ll be a slightly stronger appetite among a lot of senators to end this abuse.  But it‘s still going to be difficult—in part because both parties have an interest in keeping it around.  You know, every senator can imagine the situation in which they‘re in the minority and the majorities are fleeting.

And so, I think that even in the Democratic Caucus, there‘s going to be a lot of people who want to keep it around because they won‘t be able to filibuster when they‘re in the minority again at some point in the future.

So, that dynamic creates a situation in which it‘s going to be pretty tough to get Harkin‘s bill passed, but I‘m glad he‘s pushing it anyway, because it‘s a worthwhile effort.

MADDOW:  That argument though that everyone wants to keep it around because they might want to use it some day made sense when there were 39 filibusters a year.  But now that there is a standing filibuster on every piece of major legislation, as you say, when you‘ve gone from 39 filibusters a year to 139, where, essentially, we‘ve got a de facto 60-vote margin for passing anything in the Senate, it seems to me like the old bets about us wanting to reserve this power to use it when we need it are sort of off.

How did we get to a place where it‘s being used so much more frequently?  Did they change a rule about it?  How did it become so easy to filibuster everything now?

BENEN:  It‘s one of the biggest frustrations, I think, for those of us watching this debate closely.  There—it happened completely naturally.  It was a very organic process.

The rules didn‘t necessarily change, although at one point in the past, they lowered the number necessary for the filibuster.  But in general, we‘re looking at a situation in which it just kind of happened.  Senators would occasionally filibuster in extreme circumstance.  But as of, say, the last Congress, the number just exploded.  We broke a record.

The number of filibusters are coming in at unprecedented pace.  They broke the record in the last Congress.  They‘re on track to break their own record, and referring to the Republican minority, break their own record again in this Congress.

And I think that one of the problems that we have is the political establishment thinks that this is normal, that the Senate just operates this way.  It doesn‘t.  For 200 years, it didn‘t operate this way.  If a majority of senators wanted to pass a bill, they passed a bill.  That has changed slowly and surely.  And I think that that‘s something that‘s gone largely overlooked as part of the larger debate.

MADDOW:  Steve, if they are not able to kill the filibuster, if they‘re not able to get, as you say, 67 votes to change the Senate rules, what else could the Democratic leadership in the Senate do to pass health reform, for example, to overcome this 60-vote supermajority that has suddenly become the norm?  One option is, I know, reconciliation.  But that does really limit them in terms of what types of legislation they‘re able to pass under that.

BENEN:  Right.  I think, in general, there are two broad approaches to this.  One is the reconciliation approach, in which you mentioned, on which Senator Wyden reflected on early.  It‘s difficult because it has limited applicability and there‘s a time line on terms of when those bills expire and have to be reauthorized.

I think the other aspect of this is public pressure.  I think people have to be aware of the fact that one of the reasons there‘s so much gridlock and one of the reason bill are just having so much trouble gets passed is because of this filibuster.  Imagine, a typical Americans realize that if a bill comes up in the Senate and has 58 supporters and 42 opponents, it dies.  It doesn‘t get passed because the 42 trumps the 58.

I think that if Americans, in general, were more aware of this, they‘d be more—they‘d be more likely to be outraged.  And the reasons that Republicans feel justified in being able to have these constant filibusters on literally everything, is that they feel there are no electoral consequences for their obstructionism.

So, I think one of the things that Senate Democrats would be wise to do is shine a light on this and explain to the public: one of the reasons people are frustrated with Congress not being able to get things done is because of these filibusters.  And if there‘s more public backlash and there‘s a sense that there‘ll be electoral consequences for this, then Republicans might be less likely to do it.

MADDOW:  Steven Benen of “Washington Monthly” and blogs at WashingtonMonthy.com—thank you so much for joining us tonight, Steve.  Really appreciate it.

BENEN:  Thank you, Rachel.

MADDOW:  The giant informational black hole that was the Bush administration got a little brighter today as heroic I.T. geeks recovered 22 million lost Bush administration e-mails.  Control Z, control Z, undo, delete, massively.  That‘s coming up next.

(COMMERCIAL BREAK)

MADDOW:  Perhaps the single most convenient governmental failure of the last presidential administration was the administration‘s failure to keep track of its own records.  We were supposed to keep track of records?  I‘m sorry, I have no record of that.

Although two clear-as-day federal laws require the White House to preserve its records, the Bush administration said that it just plum lost tens of millions of e-mails that were generated by administration officials and that were supposed to be kept.  It always felt like a giant “Dog ate my homework” excuse, but if the Bush administration wanted its e-mails to be permanently lost, the bad news for them is that dogs can‘t permanently eat homework that‘s done on a computer in most cases.  Nothing‘s ever really, really, really lost anymore.

And now, Bush administration e-mails from March 2003 to October 2005 have been restored, 22 million of them, or so.  They were found thanks to the Obama administration‘s settling a lawsuit filed by CREW, Citizens for Responsibility and Ethics in Washington and the National Security Archive, which is a private nonprofit organization.  All 22 million e-mails don‘t get released to the public immediately, they go to the National Archives and Records Administration for preservation, archiving, et cetera, all the normal stuff that happens to White House records, but which can only happen if everyone agrees that those White House records exists.

I will save you the back of the envelope math right now, March of 2003 to October 2005, that covers U.S. invasion of Iraq, Valerie Blame CIA leak cover-up, waterboarding prisoners, the photographs at Abu Ghraib, the federal response to Hurricane Katrina, and much, much, much, much more.

Joining us now is Meredith Fuchs.  She serves as the general counsel to the National Security Archive, one of the two groups that sued the government.

Ms. Fuchs, thanks very much for joining us tonight.  It‘s nice of you to come in.

MEREDITH FUCHS, NATIONAL SECURITY ARCHIVE:  Thank you.  Thanks for having me.

MADDOW:  Do we know if the e-mails were deliberately deleted, were they just lost, misfiled?  What happened to them?

FUCHS:  Well, a little bit of everything.  Although I have to say we haven‘t found clear evidence of malfeasance, but there are a lot of decisions that make you wonder.  So, for example, what happened to the e-mails?  They were actually, never really archived.  They were manually shifted into files which were then mislabeled and essentially lost, somewhere present in the White House servers, but no one could find them.  So that accounts for 22 million.

In addition to that, we think some e-mails were actually missing from the system entirely.  And so, the White House has agreed to do some restorations, 33 days.  Previously, the Bush administration restored 21 days as well.  All told, we‘re going to end up getting 94 days restored in addition to the 22 million that were found.

MADDOW:  So, the 33 days that the Obama administration has agreed to restore, these are specific dates on which you have suspiciously few emails on the record?

FUCHS:  That‘s correct.

MADDOW:  OK.

FUCHS:  We looked at all the data that the Bush administration and the Obama administration have and we identified - the plaintiffs have identified days that we thought the E-mails were suspiciously low.  And we looked at what was happening in the world at the time.  And we tried to pick days where there might be important E-mails. 

MADDOW:  Now, in looking at your resources on this, the information that you put out because these 22 million have been released, with I was struck by this interesting issue around the vice president‘s E-mails. 

As far as I understand it, the Obama administration has agreed to try to recover records including those from the office of Dick Cheney which, I guess, a court had ruled you couldn‘t sue to get.  Can you explain that? 

FUCHS:  Well, basically, when the Valerie Plame investigation took place, there were subpoenas issued to the White House.  And they went to look at the OVP‘s White House E-mail and they couldn‘t find them.  There was nothing available. 

And they had to do this difficult restoration, restarting the individual accounts for each person in the Office of the Vice President.  They found some E-mails.  But we don‘t know if those were complete.  So the Obama administration has agreed to restore additional E-mails from those days to try to make that record complete. 

MADDOW:  Senate Judiciary Chair Pat Leahy has issued a statement on this.  He said, “The Senate Judiciary Committee never accepted the Bush administration‘s conclusions that millions of its E-mails were ‘lost.‘”  He says, “This was another example of the Bush administration‘s reflexive resistance to congressional oversight and the public‘s right to know.” 

Because the archiving of E-mails is a little bit of an esoteric issue, even for us that are, you know, familiar with what it is to deal E-mails and deal with online archives, is there a way to, I guess, contextualize politically how big an oversight this was of theirs that they didn‘t create archives?  I mean, I understand that previous administrations have had trouble with this same issue. 

FUCHS:  Right.  Well, my organization sued the Reagan administration, Bush 41, and the Clinton administration.  And so, there was clear case law that said every E-mail in the White House should be saved. 

And the Clinton administration put in an E-mail archiving system.  So the fact that the Bush administration decided to disconnect that E-mail archiving system and not put something else in place was a very serious oversight. 

MADDOW:  Wow.  One last question.  The day after President Obama was sworn in, I know the Justice Department filed a motion to dismiss your lawsuit, this lawsuit that‘s just resulted in these 22 million E-mails being made available.  Was that the Obama administration upholding the Bush-era stance?  Who filed that motion to dismiss your lawsuit?  Do you understand what was going on there yet? 

FUCHS:  Well, we were disappointed on January 21st to get that motion, but it had been in the works already and originally was supposed to be filed before that weekend.  But day didn‘t get it filed and the day after the inauguration, it was filed. 

But you know, fortunately, we were able to talk to them and work it and they ultimately withdrew their motion to dismiss and that led to the settlement of this case. 

MADDOW:  This is one of these things where it‘s like, wow, this is really fascinating.  This has just happened.  And the next 10 things that are going to happen are going to be even more fascinating. 

It‘s complicated stuff, but it‘s really interesting and good to have your help sorting it out.  Thanks for coming in.  I appreciate it.

FUCHS:  Thank you.

MADDOW:  Meredith Fuchs is the general counsel the National Security Archive. 

OK.  In North Carolina, an atheist can run for office and can even get elected.  But can an atheist be sworn in and actually serve the public as a public official?  And can you believe we have to even ask this question in 2009 in the United States of America?  Yes. 

And as nature videos go, we have unearthed the second or maybe third best one of all time.  It involves an octopus and a coconut and no special effects, and that‘s all I‘m saying.  Stay tuned.

(COMMERCIAL BREAK)

MADDOW:  Still ahead, residents of one city try to push a city councilman out of office because he does not believe in God.  And the state law is on their side.  A preemptive war against a potential war against Christmas, maybe. 

And President Obama blew off some steam at fat cat bankers today. 

Kent Jones has an outlet for the rest of us to do the same. 

But first, a couple of holy mackerel stories in today‘s news.  The difference between Britain and the U.S. extends far beyond the royal family, universal access to health care, and the pronunciation of words like “tomato,” “aluminum,” and “herbs.” 

Take, for example, public opinion in our two nations of the people responsible for the Iraq war.  In a new interview, former British Prime Minister Tony Blair admitted to the BBC that he would have advocated war against Iraq, even if he had known there were no weapons of mass destruction there. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  If you had known then that there were no WMDs, would you still have gone on? 

TONY BLAIR, FORMER PRIME MINISTER OF THE UNITED KINGDOM:  I would still have thought it right to remove them.  I mean, obviously, you would have had to use and deployed different arguments about the nature of the threat. 

But I find it quite odd, because I spend so much time out there now.  And they‘re about to have an election which will be probably the single most significant thing that‘s happened in that region for many years. 

(END VIDEO CLIP)

MADDOW:  In America, former Bush administration officials have made pretty much the same argument, that even though there were no weapons of mass destruction, the war was still, somehow, justified. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, FORMER UNITED STATES PRESIDENT:  The minute we found out they didn‘t have weapons of mass destruction, I was the first to say so.  My decision to remove Saddam Hussein was the correct decision. 

DICK CHENEY, FORMER UNITED STATES VICE PRESIDENT:  This was a bad actor.  And the country‘s better off - or the world‘s better off with Saddam gone. 

CONDOLEEZZA RICE, FORMER UNITED STATES SECRETARY OF STATE:  I would have liberated Baghdad a hundred times over.  I think it was the right decision. 

(END VIDEO CLIP)

MADDOW:  Many Britain, now, for making the same argument, there is a new round of very public calls for Tony Blair to be prosecuted as a war criminal.  Tony Blair got called a sycophant by a former prosecutions chief in the U.K. 

The current defense secretary there reacted to the former prime minister‘s comments by saying he would have only supported the war if there were actual weapons of mass destruction.  This all happening against the backdrop of an ongoing aggressive Iraq war inquiry impaneled by the current prime minister. 

In England, the Bush administration‘s run-of-the-mill defense of the war brings calls for prosecution.  In America, it‘s part of the president‘s legacy salvaging operation.  You say tomato, I saw, ugh. 

Next up, the secret religious group known as The Family is most famous in U.S. politics for operating the C Street house in Washington which was tied to three - count them - three conservative Republican political sex scandals this year. 

But The Family‘s reach extends well beyond Washington and even well beyond the United States.  As documented in Jeff Sharlet‘s book-length expose of The Family, the group also recruits and cultivates powerful people in other countries as force-magnifying influence extenders for the network of Americans in The Family and to spread the group‘s controversial theology of power, which you wouldn‘t recognize in any mainstream American Christian church.  Trust me.

The Family‘s main outpost in Africa has long been the nation of Uganda, where the country‘s president-for-life, Yoweri Museveni, is said to be a member of The Family as is the legislator, David Bahati, who introduced legislation this years that turned some worldwide attention.  It is a legislation that would sentence people to life imprisonment or even to death for the crime of being gay. 

Since we have been covering this story, a number of American members of The Family have decided to issue statements opposing the proposed law.  They include Iowa Senator Chuck Grassley, Oklahoma Senators James Inhofe and Tom Coburn and Congressmen Joe Pitts and Bart Stupak. 

American mega-church Pastor Rick Warren who also has extensive ties to Uganda to proponents of the kill-the-gays bill also condemned the legislation last week after initially saying he wouldn‘t. 

Then late on Friday, the White House issued a statement against the legislation, saying, quote, “The president strongly opposes efforts such as the draft law pending in Uganda that would criminalize homosexuality and move against the tide of history.” 

We got a bit further today with the spokesman for the National Security Council, who added this, quote, “At this point, we‘ve expressed our concerns at the highest levels of the Ugandan government and we continue to raise our concerns in our ongoing dialogue with our Ugandan counterparts.”

The chairman of the Senate Foreign Relations Committee, Sen. John Kerry, also weighed in this afternoon with his own statement condemning the proposed law.  What‘s the result of this flurry of American objections to the kill-the-gays bill in this other country?  It remains to be seen. 

The “Sunday Observer” newspaper in Britain reporting that the bill has been presented to parliament in Uganda, that it is expected to be debated within two weeks and that it is expected to become law by February. 

Contrary to earlier hopes, the death penalty has not been removed from this proposed legislation.  The legislator who introduced the bill, telling reporters, quote, “We are not going to yield to any international pressure.” 

We, of course, will stay on this story, since it keeps not going away.  One way we‘ll be able to stay on this story is if people keep asking people in power about it.  Blogger Mike Stark of “StarkReports.com” this weekend caught up with three conservative senators who are members of The Family to ask them about the bill. 

Sen. Inhofe reiterated to Mike his opposition to the bill, but Mr. Stark was also able to get on the record two more Family senators who had not previously commented on it.  And one of them, John Ensign, was probably just happy to have someone asking him about anything at all other than the fallout from his own big, embarrassing sex scandal. 

(BEGIN VIDEO CLIP)

SEN. JOHN ENSIGN (R-NV):  You know, even if you disagree with - you know, with the way that somebody lives, OK, you don‘t - I mean, to do what Uganda is doing, I think that, you know, most reasonable people would agree that that‘s pretty outrageous to do what they‘re doing. 

UNIDENTIFIED MALE:  There‘s a story being reported - Rachel Maddow is

all over it, about Uganda.  Uganda is -

SEN. SAM BROWNBACK (R-KS):  You know, I saw a piece of that on her

show when I was working out last night, but I haven‘t followed it.  I don‘t

I know she‘s covering it, but I don‘t know what it is. 

UNIDENTIFIED MALE:  There‘s legislation before their parliament that would criminalize homosexuality.  It started out - the penalty was up to and including the death penalty.  Do you think it‘s appropriate to criminalize homosexual conduct anymore? 

BROWNBACK:  I can‘t - I don‘t know the specifics of the bill.  I‘ve

learned you need to know what‘s actually -

UNIDENTIFIED MALE:  Oh, just in general terms? 

BROWNBACK:  Well, I‘m not going to comment on something. 

UNIDENTIFIED MALE:  All right.  Well, thanks, senator. 

(END VIDEO CLIP)

MADDOW:  Sen. Brownback will not comment on the bill, or even on the general idea of the death penalty for gay people.  Now, we know.  But now, we also know that Sen. Brownback watches the show while he works out.  Hi, Sen. Brownback, you look great.  Now, that I know you‘re here, I feel like we have so much to talk about.

(COMMERCIAL BREAK)

MADDOW:  In seven states, it is illegal to hold public office unless you also hold a belief in God.  In seven American states, in the 2000s.  Yes, that‘s next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  And will you faithfully discharge the duties of your office as mayor of the city of Asheville, so help you God? 

UNIDENTIFIED FEMALE:  I will. 

UNIDENTIFIED MALE:  And will you faithfully discharge the duties of your office as a council member of the City of Asheville, so help you God?

UNIDENTIFIED FEMALE:  I will.

UNIDENTIFIED MALE:  And will you faithfully discharge the duties of your office as a council member of the City of Asheville, is that your solemn affirmation? 

UNIDENTIFIED MALE:  It is. 

(END VIDEO CLIP)

MADDOW:  Your solemn affirmation - that‘s what you can say instead of “so help me God” if you‘re swearing to do something, but the fear of needing God‘s help if you blow it, “so help me God,” doesn‘t apply to you.  If you don‘t believe in God, you can give your solemn affirmation instead of saying “so help me God.” 

Last week, in Asheville, North Carolina the fact that one city councilor was sworn in with a solemn affirmation instead of a “so help me, God” so enraged his critics that they are now threatening to try to remove him from office because he‘s an atheist.  Which is remarkable enough that any American would call someone else unfit for public office purely on the basis of their faith or lack thereof. 

What‘s all the more remarkable about this case is that the critics of Asheville, North Carolina Cecil Bothwell - those critics sort of have a point.  Or at least, they have a legal reference point. 

Article 6 of the North Carolina State Constitution includes a list of things that disqualify a person from public office in the state.  Things like being convicted of treason, having committed a felony, being impeached from some other office.  And, then, it says, right there in Article 6, Section 8, “The following persons shall be disqualified from office.  First, any person who shall deny the being of Almighty God.” 

Yes, it is actually in the NORTH CAROLINA STATE CONSTITUTION that you‘re not allowed to hold office if you don‘t believe in God.  And it turns out there are six other states that have similar provisions in their constitutions, mandating that officeholders have a belief in a supreme being. 

Maybe you live in one of these states.  Arkansas, Maryland, South Carolina, Tennessee, Texas, Mississippi, and the aforementioned North Carolina, all make it illegal to hold public office while being an atheist. 

Despite the fact that another Article 6 in another Constitution, the U.S. Constitution, quite famously says that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

There‘s also the very handy supremacy clause which basically says that when there‘s a conflict between a state Constitution and the U.S.  Constitution, the U.S. Constitution wins.  That‘s the whole united part in the United States. 

Still, though, back in Ashville, North Carolina, a local conservative newspaper editor and a local southern heritage activist say that the North Carolina atheist ban should be enough to force Cecil Bothwell from his seat on the city council. 

Mr. Bothwell, of course, has the U.S. Constitution and the whole American idea of religious liberty on his side.  The question is how a state is allowed to be officially in writing on the other side. 

Joining us now is Katie Parker.  She‘s the legal director for the ACLU of North Carolina.  She spoke with Mr. Bothwell earlier today.  Katie, thank you very much for joining us.  I really appreciate it.  

KATIE PARKER, LEGAL DIRECTOR, AMERICAN CIVIL LIBERTIES UNION OF NORTH

CAROLINA:  Hi, Rachel.  Glad to be here.  

MADDOW:  First of all, did I get the details of this right?  The atheist ban is in the State Constitution, even though it‘s obviously against the U.S. Constitution? 

PARKER:  That‘s correct, Rachel.  It is.  When you spoke with Mr.  Bothwell earlier today, did you get any sense as to whether the councilman was concerned about losing his seat because of what‘s in the State Constitution? 

PARKER:  I didn‘t get a sense that Mr. Bothwell is concerned for several reasons.  The city attorney and the city attorney‘s office in Ashville - there‘s some smart people over there.  And they know the law.  I mean, they understand what you just described, Rachel, that the supremacy clause reigns supreme here.

And the United States Constitution, as you mentioned, Article 6 of the Constitution, provides you can‘t have this type of religious test oath for any public office in the United States.  It‘s one of the things that makes our country great - is that it‘s not of anyone‘s business whether you‘re religious or not in order to hold public office.  

MADDOW:  The fact remains, though, that it is on the books in the State Constitution.  And when I went back and looked at some of the - just even the headline level case law on this, it seemed to me like the big worry was that even though what you just explained seems very clear to me in the supremacy clause and what it says in the U.S. Constitution sort of steams to settle this legally. 

I‘m worried about the fact that it being in the State

Constitution - I‘m worried that that might mean that Mr. Bothwell is going to be caught up in a legal battle over this for a long time and not be able to serve as a councilor.

PARKER:  Well, it‘s a concern, Rachel, and you‘d be amazed at how many things are still on the books in North Carolina and presumably around the country that are blatantly unconstitutional, including, as you mentioned, this actual North Carolina constitutional provision. 

It is a concern that it might be caught up in litigation.  We would think that the courts would see it as the Supreme Court has said, as many courts have said that this is a pretty easy one, that, you know, it‘s clear that this is unconstitutional in the First Amendment and Article 6 of the United States Constitution. 

So we would hope that the city wouldn‘t have to be tied up in a lot of litigation on this matter, but you‘re right.  I mean, it‘s possible. 

MADDOW:  Politically speaking, of course, beating up on atheists is politically popular.  Atheists are a group that takes a lot of abuse politically.  Do you think this type of law, and the fact that it is still in the State Constitution, poses risks to people of minority faith, people of different faith traditions who do believe in God? 

PARKER:  It certainly does, Rachel.  And that‘s one of the things that‘s really interesting.  In the 1961 Supreme Court case on this matter, the Supreme Court really stressed that it‘s not just nonreligious people who ought to be concerned with this sort of attacks.

Religious people ought to be concerned as well because it‘s a very private matter, your religion.  And having the government to be able to compel you to take a religious oath is a violation of a private matter for people who are religious and nonreligious.  

MADDOW:  Katie Parker is the legal director for the ACLU of North Carolina, bringing that whole separation of church and state thing into very sharp relief.  Thanks very much for your help tonight.

PARKER:  Thanks, Rachel.

MADDOW:  Bill O‘Reilly is accusing “Law and Order” creator Dick Wolf of defamation.  Keith‘s amazing response is coming up on “COUNTDOWN.”

But first, it may not do anything for your bank balance, but it certainly helps your biceps.  Kent Jones introduces us to the perfect physical stress release for these economically-challenged times.  It‘s sort of great.  That‘s coming up next.  Stay with us.

(COMMERCIAL BREAK)

MADDOW:  We turn now to our games as metaphors correspondent Kent Jones.  Hi, Kent.  

KENT JONES, POP CULTURIST:  Hi, Rachel.  You know, while President Obama was meeting with the leaders of the big banks this morning, a new arcade game was sending a very different message to financial bigwigs, namely, duck. 

(BEGIN VIDEOTAPE)

(voice-over): for pure lizard brain satisfaction, you can‘t beat Whack-a-Mole.  That‘s a classic game where moles pop up out of their holes and you score points by whacking their grinning little heads with a mallet.  You want some of this, huh?  Huh, huh?  Bam! 

And here‘s one for your little friend.  It doesn‘t get better than that, unless it‘s Whack-a-Banker.  English inventor Tom Hunkin(ph) has updated to Whack-a-Mole to top into people‘s unspent hostility for the world‘s financial weasels.  Object - whack as many little banker noggins as possible in 30 seconds. 

Cover your assets, if you lose, the bankers put the experience behind them and return to business as usual.  If you win, the bankers retire and thank you for funding their pension.  Too big to fail?  Not any more.  The inventor said the game was proving very popular, saying, quote, “I keep having to replace worn out mallets.”

Now, how‘s that for an economic indicator?  President Obama, if you need a reminder of what your relationship to Wall Street should look like, here you go.  Hey, fat cat, I got your year-end bonus right here. 

(END VIDEOTAPE) 

MADDOW:  Thank you, Kent. 

JONES:  Sure.

MADDOW:   A cocktail moment for you, I‘m very excited.  Best thing since a parrot tried to mate with that British guy‘s neck.  If you haven‘t seen that one, Google “shagged by a rare parrot.”  You will not be disappointed. 

But - all right.  This is about octopus - octopi.  We used to believe they couldn‘t use tools, until a team of scientists captured this on tape.  Over the course of almost a decade, researchers filmed the octopi off the course of Indonesia.

And what they saw on four separate occasions blew them away.  It‘s an octopus gathering discarded coconut shells in order to use them as thing hide in.  They would dig it out of the mud, flip it over and then clean the mud out of the bowl with their little octopus arms, wrap its arms it and then stand up and scurry away in octopus tiptoes. 

Just absolutely amazing, they hide in them so they don‘t get eaten.  My favorite “Cocktail Moment” in a very long time.  Thanks, Kent.

JONES:  Thanks, Rachel.

MADDOW:  “COUNTDOWN” with Keith Olbermann starts right now.

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