The Rachel Maddow Show, Transcript 05/12/10

Guests:
Dahlia Lithwick, Richard Engel
Transcript:

HOST:  The totally inscrutable, impenetrable White

House memos that are, nevertheless, very exciting.

               

KEITH OLBERMANN, “COUNTDOWN” HOST:  Good.  I‘m looking forward to

them.  Proceed.

MADDOW:  Thank you, Keith.

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

We do have an amazing second beat coming up this hour on the Arizona

anti-immigration “papers please” law.  We do have some important news to

bring you about the record of the Supreme Court nominee, Elena Kagan. 

Plus, we‘ve got some death metal in the show today.  That doesn‘t happen

all that often.

It‘s all to come over the course of this next hour.

But we begin with new images of the oil leak that‘s still gushing a

mile beneath the surface of the Gulf of Mexico.  What you‘re looking at

here is the leak—the main oil leak on the ocean floor that is the cause

of the environmental disaster looming over the entire Gulf region.  This is

one of the two leaks that the Deepwater Horizon well that has resulted in

more than 4 million gallons of oil being dumped into the Gulf of Mexico so

far.

Up to this point, most of what we‘ve seen are images of oil slicks on

the surface of the water, but B.P. finally released this video tonight

apparently under pressure from federal officials.  The Deepwater Horizon‘s

rig is, of course, located in the Gulf of Mexico.  It‘s now sunk on the

ocean floor about 40 miles off the coast of Louisiana.

The company that owns the rig, Transocean, is based in Switzerland. 

The company that leased the rig and is trying to clean up the mess is, of

course, B.P.  “B” as in Britain.  They‘re headquartered in London.

Now, these offshore rigs are technically ships.  They can move around. 

So, even though they‘re giant skyscrapers on water, they have to be flagged

as if they are boats, as if they‘re ocean-going sea vessels.  That means

they have to say what country they‘re coming from.

Do you want to know where this Swiss rig leased by a British company

to drill American oil is flagged?  It flies the flag of the Marshall

Islands.  Huh?  Where are the Marshall Islands?  All the way over—yes—

oh, keep going.  Keep going.  Oh, yes.  Over here.

A tiny cluster of islands, sort of off the northern coast of Australia

maybe?  Roughly the same size population as the town of Palo Alto,

California.  Now, was this giant rig built in the Marshall Islands?  No, it

was built in South Korea.  Is this giant rig helmed by people from the

Marshall Islands?  Not that anybody knows of.  Are any of the companies

involved here headquartered in the Marshall Islands?  No.

So, why does this giant oil rig from the flag of this teeny, tiny,

totally unrelated country?  Oh, right, because the Marshall Islands have

relatively lax maritime regulations.

You see, where you‘re flagged isn‘t just a matter of what sort of

taxes you pay and stuff, it‘s a matter of what sort of safety regulations

you are held to.  The U.S. Coast Guard, which goes around inspecting

vessels in U.S. waters for obvious reasons, inspects foreign-flagged rigs a

little differently.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  How many wells do they drill in the Marshall

Islands?

CAPT. VERNE GIFFORD, U.S. COAST GUARD:  Not—I don‘t know of the

deep water horizon obviously never drilled—it‘s what‘s called a flag of

convenience in the sense that the Marshall Islands—they‘re flagged under

the Marshall Islands.  They meet the standards that the Marshall Islands

registry proposes, a classification society goes on board on behalf of

Marshall Islands registry and make sure that they, in fact, comply with all

the standards.

(END VIDEO CLIP)

MADDOW:  The inspectors from the Marshall Islands approve

classifications society go on board and then Coast Guard officials

essentially verify those findings.  Had this oil rig been flagged as a U.S.

an American vessel, a U.S. vessel, while it was pumping American oil,

the Coast Guard would have conducted the inspections themselves, and U.S.

regulations are, of course, more stringent than Marshall Islands‘

regulations.

               

Nobody‘s saying that would have prevented this disaster, but the fact

that this rig inexplicably chose to fly the flag of the Marshall Islands

when it had nothing to do with the Marshall Islands tells you a lot about

the relationship between regulators, inspectors and safety monitors and the

companies that try to evade them.

In our country, the agency that regulates offshore oil drilling is the

Minerals Management Service, the MMS.  And based on what‘s come out in the

last few weeks, it sort of seems like in recent years, MMS just gave up the

job of being a constructive antagonist to the oil industry.  A “Wall Street

Journal” examination found that over the last decade, MMS, quote, “shifted

most of the job of crafting safety regulations to the oil industry itself.” 

Neat.

Before this disaster ever happened, the MMS was famous as the agency

where manager snorted crystal meth off a toaster oven.  That turned up in

an inspector general report.  It was where the agency‘s oil industry

regulators were quite literally shtooping oil industry lobbyists, not

metaphorically shtooping them, literally shtooping them.

Now, in the wake of this disaster, the Obama administration is

proposing a major overhaul of the Minerals Management Service, they‘re

proposing breaking the agency up.  Meanwhile, the investigation into why

the B.P. disaster happened is still under way in Washington, a day after

oil executives from B.P. and Transocean and Halliburton all tried to pin

the blame on each other for this disaster.

The chairman of the top House committee today put the blame squarely

on all of their shoulders.

(BEGIN VIDEO CLIP)

REP. HENRY WAXMAN (D-CA), HOUSE ENERGY & COMMERCE CMTE.:  This

catastrophe appears to have been caused by a calamitous series of equipment

and operational failures.  If the largest oil and oil service companies in

the world had been more careful, 11 lives might have been saved, and our

coastlines protected.

(END VIDEO CLIP)

MADDOW:  Regardless of which corporation ends up taking on the lion‘s

share of both the blame and the financial responsibility, the bottom line

here is that with offshore drilling, it is indisputable that we what we

have been doing is something that we don‘t know how to do safely.  That is

proven by the fact that every single technological solution that has been

used to try to stop this thing—you keep hearing this—every single

technological solution they are trying has never before been used at this

depth.  You keep hearing that over and over again, right?

It‘s been more than three weeks since this disaster first struck.  And

this remains the scene a mile under water—tonight, right now.

Oil companies are approved to drill at this depth even though they

have no idea how to fix it if something goes wrong at this depth.  And

we‘re drilling deeply more than we ever have before.  In 1990, deep water

drilling in the Gulf of Mexico produced 20,000 barrels of oil a day—

20,000.  By last year, that had jumped to 1 million barrels a day.

But the fact that we don‘t know how to do it safely has never been a

political problem until now.

(BEGIN VIDEO CLIP)

SEN. FRANK LAUTENBERG (D), NEW JERSEY:  I asked whether or not all—

anyone, all three of you, can separately guarantee that a spill like this

will never happen again in U.S. waters on your watch.  Mr. McKay?

LAMAR MCKAY, B.P. AMERICA:  I cannot guarantee that.

LAUTENBERG:  Mr. Newman?

STEVEN NEWMAN, TRANSOCEAN:  I cannot guarantee it.

LAUTENBERG:  Mr. Probert?

TIM PROBERT, HALLIBURTON:  But I‘m afraid that with the best well in

the world, I don‘t think any individual could guarantee that we will not

see another oil spill as a result of drilling activity.

(END VIDEO CLIP)

MADDOW:  In the shadow of the B.P. oil disaster jaw-dropping hearings,

Senators John Kerry and Joe Lieberman introduced climate change legislation

in the Senate today, the American Power Act.  Among other things, it

includes subsidies for offshore oil drilling—subsidies.  Taxpayer

subsidies.

These oil companies already don‘t pay federal royalties on anything

that they drill out there.  But how about expanded taxpayer subsidies for

them to do it, too.  To do it, more?

This is—not to put too fine a point on it—our oil.  And yet

we‘re paying them to drill it.  And then we‘re not collecting a percentage

from it, even though it‘s ours and even though we bear the environmental

disaster risk whenever anything goes wrong.

The blood pressure down news about the new climate bill is that

coastal states will now be able to veto any new drilling projects within 75

miles of their coastlines.

Now, one coastal state governor, Charlie Crist of Florida, is already

taking preemptive action.  Governor Crist is asking Florida‘s state

legislators to approve a state constitutional amendment in Florida to ban

oil drilling in state waters forever.  It‘s already a state law there, but

a constitutional amendment would make it essentially permanent.  Governor

Crist used to be a supporter of offshore drilling, but apparently, in the

wake of this disaster, he has changed his mind, as have a lot of American,

if you put any stock in the recent poll numbers on this issue.

Whether this is just politics or an honest change of opinion on this,

it‘s worth noting not that every politician is reacting to this disaster in

the same way that Governor Crist in Florida is.

Take Democratic Senator Mary Landrieu of Louisiana, for instance,

looking at the same facts, looking at the same disaster, she reacted to the

crisis this way.

(BEGIN VIDEO CLIP)

SEN. MARY LANDRIEU (D), LOUISIANA:  The record will show that from

1947 until 2009, 175,813 barrels have been spilled out of 16 billion

produced.  That is one thousandth of 1 percent of total reduction.

(END VIDEO CLIP)

MADDOW:  See, that‘s supposed to be the good news.  This is no big

deal.  It‘s such a tiny percentage of what we produce.  Why let a little

spill like this bother you?

And this is one—what is it?  What she said, one thousandth of 1

percent of total production.  There is so much more that could spill—

says the senator whose own state is staring down the barrel of 4 million

gallons of coastal oil and counting.

Joining us now live from Venice, Louisiana, is NBC News chief

environmental affairs correspondent, Anne Thompson.

Anne, thank you so much for your time tonight.  What can you tell us

about the very latest on the effort to cap this well?

ANNE THOMPSON, NBC NEWS CHIEF ENVIRONMENTAL AFFAIRS CORRESPONDENT: 

Well, Rachel, they‘re pursuing something called the “top hat,” and that is

a smaller containment dome.  It is down on the sea floor.  And over the

next 24 hours or so, engineers hope to actually move it over the biggest

leak there.

And what they‘re hoping is, this time, they have solved the problem of

those ice-like crystals called gas hydrates which failed the big giant

containment dome over the weekend.  And they think they‘ve solved this by

attaching a riser, which is a big pipe, and then there‘s a pipe within

that.  And they are using—they will use warm water and methanol to keep

the “top hat” warm and the gas hydrates at bay.  So, that‘s what they‘re

counting on.

They‘re also looking at another option and that is called an insertion

tube.  It‘s basically taking a riser, again a pipe that has a drill pipe

inside, and attaching it to the broken riser and then pumping the oil out

that way.

And the third option they‘re looking at is something called a “junk

shot,” that could take place as early as the middle of next week, and that

is essentially to send rubber debris under high pressure, things like

shredded tires and golf balls into the blowout preventer which is the

emergency brake on the well that didn‘t work and essentially clog it to

stop the oil.

MADDOW:  And I know in another recent under sea oil leak in—off of

Australia last year, what finally took care of that problem, and it took

months to do it, was the drilling of a relief well and B.P. officials have

talked about drilling a relief well also there in the Gulf of Mexico.  Is

that still something that would be expected to take months, if that might

work?

THOMPSON:  Oh, absolutely.  It will take at least three months.

I can tell you that it is underway.  They say the drilling is going

quite well.  But that‘s the long-term solution.  But it‘s the one solution

they know will work.

Everything else they‘re going to try between now and then is

essentially things that haven‘t been tried before.  And they are just

desperate to find any solution to stop this oil from flowing into the Gulf.

MADDOW:  NBC News chief environmental affairs correspondent, Anne

Thompson, live from Venice, Louisiana—Anne, it‘s a real honor to have

you on the show tonight.  Thanks very much for your time.

THOMPSON:  Take care, Rachel.

MADDOW:  So, there is genuine empirical review and hard-nosed analysis

to do about the record of Supreme Court nominee Elena Kagan.  And you know

who‘s not doing it?  A whole bunch of senators who‘s decided to settle on

pure inadvertently hilarious, self-contradictory, hypercritical nonsense as

their strategy instead while the bloggers and the law professors of the

world actually do the hard stuff.  Surprise.  The nonsense coming from the

senators and our own analysis—coming right up.

(COMMERCIAL BREAK)

MADDOW:  How was your day?  We had a really busy day here at the show,

really busy.  I was off yesterday.  Chris Hayes did a really good job

hosting the show yesterday.  You might have though.  I thought so.

But you know, you come back to the office after a day off and

everything is so busy, such a stacked up calendar.

I mean, look at this day: 10:00, meet with Harry Reid; 11:00, meet

with Mitch McConnell; noon, meet with Patrick Leahy; 12:45, meet with Jeff

Sessions; 2:30, meet with Dick Durbin; 3:15, meet with Orrin Hatch; 4:00,

meet with Herb Kohl; 5:00, meet with Dianne Feinstein; then pass out, whew,

right?

That wasn‘t my day.  Actually, that was the day of Supreme Court

nominee, Elena Kagan, who presumably had something else to do before her

life became the crazy thing that it necessarily becomes when you are a

nominee to the Supreme Court of the United States.

One of the most interesting things about her nomination thus far is

what‘s happening on the left—the argument among progressives on whether

or not Elena Kagan is liberal enough; whether or not her replacing Justice

John Paul Stevens who‘s become the liberal anchor of the court would

actually move the court to the right.  That‘s where the most substantive

debate over Elena Kagan‘s Supreme Court nomination is taking place.  We

will be digging into that subject later on in the show tonight.

But, first, though, we do need to cover briefly what has become the

least substantive but most entertaining criticism of the Elena Kagan

nomination and that is happening on the right.  And nobody really thinks

the right is going to be able to stop this nomination, but the wildly

thrown and missed punches coming from the right have been very fun to

watch.  For example, Republican Senator John Cornyn of Texas says he‘s

super-concerned about the fact that Elena Kagan has never been a judge

before—because that, of course, means she‘s totally unqualified for the

Supreme Court.  She won‘t even know how to put on the robe.

Senator Cornyn‘s put out statement that says, quote, “Ms. Kagan is a

surprising choice because she lacks judicial experience.  Most Americans

believe that prior judicial experience is a necessary credential for a

Supreme Court justice.”

It should be noted that John Cornyn‘s feelings on this subject may

vary, depending on which nominee we‘re talking about.

(BEGIN VIDEO CLIP)

REPORTER:  Do you think that the Miers nomination showed that it would

be almost impossible for someone to serve on the Supreme Court now if they

haven‘t been a judge before?

SEN. JOHN CORNYN ®, TEXAS:  Well, I certainly hope that‘s not the

case and it shouldn‘t be the case.  I mean, my—one reason I felt so

strongly about Harriet Miers‘ qualifications is I thought she would fill

some very important gaps in the Supreme Court because, right now, you have

people who have been federal judges, circuit judges, most of their lives,

or academicians, and what you see is a lack of grounding and reality and

common sense that I think would be very beneficial.

(END VIDEO CLIP)

MADDOW:  But Elena Kagan is a surprising choice because she lacks

judicial experience.

The same John Cornyn now raising concerns about Elena Kagan‘s lack of

judicial experience back in 2005 was mourning the loss of would-be Supreme

Court Justice Harriet Miers, hoping out loud that her withdrawal wouldn‘t

make it impossible for non-judges to become Supreme Court judges in the

future—unless, of course, we‘re talking about a judge nominated by a

Democrat.  You know what I mean.

Republican Senator Jim DeMint of South Carolina is also worried about

Elena Kagan having not been a judge, saying in a statement, quote, “I‘m

concerned that she has no judicial experience to give Americans confidence

that she will be impartial in her decisions.”

Of course, it should be noted that Jim DeMint‘s feelings on this

subject may also vary, depending on which nominee we‘re talking about. 

When Harriet Miers, for example, was nominated, Mr. DeMint said, quote,

“Ms. Miers has a long and distinguished career as one of the foremost in

the country.  She would bring a wealth of experience to the Supreme Court.” 

Even though she‘s never been a judge.  But I thought only judges knew how

to be impartial.

Republican Senator Jeff Sessions of Alabama has maybe topped

everybody, though.  He has also become suddenly overcome with fear of non-

judges on the Supreme Court, saying this week, quote, “Ms. Kagan‘s lack of

judicial experience and short time as solicitor general, arguing just six

cases before the court, is troubling.”

Do you want to know what Jeff Sessions did not find troubling? 

Harriet Miers‘ lack of judicial experience and the zero cases that she‘d

argued before the Supreme Court.

Here‘s what Jeff Sessions said about her nomination in 2005, quote:

“My conversations with Harriet Miers indicate that she‘s a first rate

lawyer and a fine person.  Her legal skills are proven and her reputation

throughout the legal community is excellent.  It is not necessary that she

have previous experience as a judge in order to serve on the Supreme Court. 

It‘s perfectly acceptable to nominate outstanding lawyers to that

position.”

Perfectly acceptable to nominate outstanding lawyers—unless they‘re

nominated by a Democrat, nudge, nudge.

But Senate Minority Leader Mitch McConnell has another objection to

Elena Kagan‘s nomination.  It‘s not just her nonjudginess that bothers Mr.

McConnell.  He has found new grounds on which to object to her nomination.

Here‘s Senator McConnell speaking today from the Senate floor.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY), MINORITY:  It‘s my hope that the Obama

administration doesn‘t think the ideal Supreme Court nominee is someone who

would rubber-stamp its policies.  But this nomination does raise the

question.  As solicitor general, Ms. Kagan is a member of the president‘s

administration.  The president on Monday also said that we‘re friends.

(END VIDEO CLIP)

MADDOW:  Friends?  The president can‘t be friends with his own Supreme

Court nominee?

(BEGIN VDIEO CLIP)

MCCONNELL:  In our constitutional order, justices are not on anybody‘s

team.  They have a very different role to play.  As a Supreme Court

justice, Ms. Kagan‘s job description would change dramatically.  Far from

being a member of the president‘s team, she‘d suddenly be serving as a

check on it.  She‘s never had to develop the judicial habit of saying “no”

to an administration and we can‘t simply assume that she would.

(END VIDEO CLIP)

MADDOW:  See, you can‘t just go from doing one job to doing another. 

You can‘t just switch which branch of government you work for—which is

why Mitch McConnell was so opposed to the Harriet Miers nomination in 2005.

I mean, she wasn‘t just solicitor general representing the whole

administration like Kagan is, the whole government, like Kagan is, Harriet

Miers was President Bush‘s White House counsel representing the White

House.  And before that, she was President Bush‘s personal lawyer for

years, the lawyer for his gubernatorial campaign, the lawyer for his

presidential campaign—a long-time close personal friend of the

president.

So, Mitch McConnell was, for obvious reasons, opposed to her

nomination, too, right?

(BEGIN VIDEO CLIP)

MCCONNELL:  Mr. President, today, I rise to commend President Bush for

his choice of Harriet Miers to be the nation‘s next associate justice of

the Supreme Court.  Ms. Miers has an exemplary record of service to our

country.  She‘ll bring to the court a lifetime of experience in various

levels of government and of the highest of the legal profession.  She‘ll

make a fine addiction to the Supreme Court and I look forward to her

confirmation.

(END VIDEO CLIP)

MADDOW:  Left, right and center, nobody expects that there won‘t be

objections raised or things to be debated when it comes to Elena Kagan‘s

nomination to the Supreme Court.  But if you‘re going to raise what you are

pretending are principled objections to her, you might want to Google

yourself first to remind yourself what you used to say your principles

were.  And this has been another episode of helpful hints for hypocrites.

(COMMERCIAL BREAK)

MADDOW:  Beltway media is calibrated to cover fights that are left

versus right, occasionally far right versus right.  But left versus left? 

Democrats contending with liberals?  Liberals fighting out something among

themselves even, you can stick that in your alternative weekly, bucko.

In the Beltway media, the left barely exists at all, let alone as a

heterogeneous complicated dynamic thing.  And that‘s why there‘s been a bit

of a say-what reaction to the big substantive debate that‘s actually going

on within the left between people left of center about President Obama‘s

Supreme Court nominee, Elena Kagan.

Back in March when Elena Kagan‘s name was surfacing seriously as a

potential nominee, this was the dismayed response from Michael Ratner at

the Center for Constitutional Rights.  He said at the time, quote: “I want

a Brennan or a Marshall, someone clearly on the liberal side.  I don‘t

think Kagan is at that end of the liberal spectrum.  Why they would put

someone in who might not be a liberal anchor for the court is really

bothersome and I don‘t see Kagan playing that role.”

Others on the left, most prominently, my friend Glenn Greenwald at

Salon.com, have argued that Kagan‘s lack of an overt track record on

liberal causes means that liberals shouldn‘t take it on faith that she will

be an ideologically consistent replacement for John Paul Stevens.

Other folks left of center who support Kagan have said essentially:

don‘t worry about that lack of a track record.  Look at her political

affiliations.  She left a promising career in academia twice, both times to

go into politics.  First, she took a leave from a tenured full

professorship at the University of Chicago to be a lawyer in the Clinton

administration.  And then, last year, she gave up being dean of Harvard Law

to become solicitor general in the Obama administration—two Democratic

administrations.

In 1993, Kagan also worked as a special counsel for then-Senator Joe

Biden on the Senate Judiciary Committee.  Joe Biden, Democrat.  Now, Vice

President Biden‘s chief of staff, Ron Klain, told reporters on her

nomination day that Kagan is, quote, “clearly a legal progressive.”

The more entertaining anecdotal evidence of her political affiliation

goes back to election night 1980 when as a Princeton student, Elena Kagan

says she drowned her sorrows in vodka and tonic upon hearing the news that

Democratic Elizabeth Holtzman had lost in Al D‘Amato.

So, during her whole inscrutable, blank slate legal career, sort of,

Elena Kagan has been associated with the Democratic Party.  Calm down,

everyone.  The things is, you know who else is associated with the

Democratic Party?  Ben Nelson.  He‘s a Democrat.  Joe Lieberman.  He

caucuses with the Democrats. 

There are many, many people associated with the Democratic Party

who I would put significantly to the right of John Paul Stevens.  And

unless Stevens, as a solid liberal, is replaced with an equally solid

liberal, the court will shift to the right. 

Adding to liberals‘ worries are memos from Kagan‘s time as a

political aide to President Clinton dug up by the Associated Press from the

Clinton library this week.  Two of the memos show Kagan commenting on the

great unmentionable in Supreme Court nomination processes - abortion. 

The memos suggest a relatively conservative stance, depending on

how you look at it, nothing particularly damning but nothing that would

make you pin a trust women button on her lapel either.  This is all we have

so far.  That and she worked for Democrats.  Have faith, ye of little

faith. 

Joining us now, Dahlia Lithwick, senior editor and legal

correspondent for “Slate.com.”  Dahlia, it‘s great to see you again. 

Thanks for being here. 

DAHLIA LITHWICK, SENIOR EDITOR AND CORRESPONDENT, “SLATE.COM”:  Thanks

for having me back. 

MADDOW:  Is there something in these memos that is important that hits

at all on how she might vote abortion rights, on something like Roe versus

Wade? 

LITHWICK:  I don‘t think so, Rachel.  I think that these memos were

done in a policy capacity.  She was working for the Office of Domestic

Policy - Bruce Reid, her boss, who I should note is a contributor to

“Slate.” 

And this is a strategic memo.  I mean, this is not a

Constitutional treatise.  This is advising President Clinton how to thread

the needle between one abortion bill and an amendment and what he should do

in order to get cover when the Senate passes a different bill. 

So I look at this as analogous actually to what she did at

Harvard when the whole Solomon Amendment military recruiters came up which

is, she‘s just a really good tactician.  She‘s a great strategist. 

Now, if she - you know, you expect her to be Bill Brennan and

fling up her arms and say, “I quit,” you know, I - but for the right of

women to choose, “I quit,” she‘s not that person. 

But it seems to me that this tells you more about her political

skills, her much touted ability to have some savvy about how to game - a

lot of different players than it tells you about anything substantive that

she believes on abortion.  I mean, this is something that happens to have

the word “abortion” in it, Rachel. 

And because, as you said, there‘s such a scanty record to look

at, everybody‘s running around and setting themselves on fire on both

sides.  It seems to me this tells us exactly what we already know, which is

she is a really good strategic thinker. 

MADDOW:  And is that good strategic thinking - is that ability, as

you‘re saying, to play people off against one another, to thread the needle

to find the tactical way forward that‘s going to work for the most

stakeholders involved - that seems to me to have a really direct policy and

political application. 

I don‘t actually know how that functions among the nine people on

the Supreme Court, though.  Is that the “I can persuade moderate justices”

people - “I can persuade and build a majority” sort of skill that people

have ascribed to her? 

LITHWICK:  Well, that‘s certainly, I think, part of what President

Obama is gambling on right now, is he‘s saying, “I don‘t want another

Brennan on the court.  I don‘t want somebody who writes passionate

dissents.  I want somebody who‘s going to get that fifth vote.” 

I think he‘s very, very confident, and I should add, I mean, you

heard Professor Lessig(ph) say the other night, people who know her, who

have worked with her, students who have been in her classes, all attest to

this really compelling ability that she has to reframe things so that

people, as you say, all the stakeholders feel like they‘ve been listened

to. 

And so I think whether it works or not is kind of an interesting

normative question.  I don‘t really know, as I‘ve suggest - I don‘t think a

lot of the justices right now on the conservative wing of the court are

really in play. 

But I do think that Obama‘s both sending a signal about not

wanting to pack the court with ideologues.  And I think, hoping that in the

future, she‘s going to become a very, very effective justice at getting to

five. 

MADDOW:  Dahlia Lithwick, senior editor and legal correspondent for

“Slate.com,” thank you again so much for joining us.  And I will keep you

on a short leash if you don‘t mind. 

LITHWICK:  Thanks, Rachel. 

MADDOW:  Appreciate it.  OK.  So Arizona has apparently decided that

if the whole country thinks it‘s the state where you‘re judged not on the

content of your character but on the color of your skin, if everybody‘s

going to think that about Arizona anyway, then they‘re really going to earn

it now.  Did you hear what Arizona just did?  New?  It‘s next.

(COMMERCIAL BREAK)

MADDOW:  Arizona‘s new “Papers, Please” law continues to have economic

implications for the state.  Today, the Los Angeles City Council voted to

boycott Arizona over the law.  L.A.‘s  mayor, Antonio Villaraigosa, backs

the boycott, which pretty much makes it a done deal.  At stake are about $7

million or $8 million in city contracts. 

Businesses and organizations around the country are also pulling

their money out of Arizona.  The state‘s tourism association says 23

meetings and conventions have been canceled so far. 

Phoenix alone estimates its direct losses will total $90 million

as a result of the bill, and that‘s not even counting the indirect spending

of conventioneers and meeting goers at restaurants and shops while they‘re

in town. 

But lest you think any of that bothers Arizona‘s politicians, the

ones who made their state the one where police are mandated to demand your

papers, please just because of what you look like, Arizona‘s governor,

Republican Jan Brewer, isn‘t batting an eye. 

She last night doubled down on the state‘s “Hal Brown is too

brown” reputation by signing a state law to ban ethnic studies programs in

Arizona public schools.  So African-American studies, Latino studies,

classes about the experience or contributions or history or literature of

ethnic minorities in this country, you are on watch if not outright banned. 

Any local school district that wants to offer classes like that

is now censored from doing so by the state.  They have decided at the

statehouse what you can teach locally and what you can‘t, because

conservatives believe in small government.  Right?  Papers, please. 

It was, therefore, perhaps the least surprising political news of

the day when we learned that the Republican National Convention in the next

presidential election year, will not be held in Arizona. 

Although Phoenix was on the party‘s shortlist, it is hard to imagine

the political positive in showcasing Republican politicians while they are

physically inhabiting the symbol of the party‘s rather ambivalent

relationship with both its own purported small government principles and

with people‘s whose last names end in vowels or who couldn‘t find a flesh

crayon that matched their skin tone before Crayola finally got

multicultural. 

So RNC 2012 in Phoenix.  The other two cities on the shortlist

were Salt Lake City, Utah - that would have been a little awkward since the

state‘s incumbent Republican senator couldn‘t even win his own party‘s

nomination there this week. 

So that left the big winner - Tampa, Florida.  Anywhere in

Arizona was out.  Salt Lake City was out, so Tampa it is.  The Republican

National Convention will be held in 2012 in the cradle of the all-American

homegrown art form that is death metal. 

Tampa really invented it.  This is Cannibal Corpse.  They are

very famous.  Other famous Tampa death metal bands include the bands Death,

Obituary, Six Feet Under and perhaps most entertaining of all, Deicide. 

(MUSIC)

MADDOW:  That‘s from their big hit “Homage to Satan” - that‘s the name

of the song by Deicide, Tampa‘s pride and joy.  Kind of the demons of the

death metal scene now.  Really hope the Republican National Convention

being there is going to be fun.  I think it‘s going to be. 

(MUSIC)

MADDOW:  Richard Engel, live in the studio, here with us next.  Stay

with us.

(COMMERCIAL BREAK)

MADDOW:  So is he or isn‘t he?  Is the Times Square lousy attempted

car bomb kid connected to terrorist groups overseas or isn‘t he?  Last week

in the initial reporting after the arrest of a suspect in the case, there

were a lot of anonymously sourced claims that he had connections to the

Pakistani Taliban. 

Then, on Thursday, a spokesman for the Pakistani Taliban said

although they were delighted by that attempted attack, Faisal Shahzad was

not connected to them at all.  Quote, “We have no relation with Faisal.

However, he is our Muslim brother.”  That was Thursday. 

The following day on Friday, the head of CENTCOM, David Petraeus,

also said there was no known connection between the Time Square suspect and

the Taliban calling him a, quote, “lone wolf.”

So Thursday, Taliban says he‘s not connected, Friday Petraeus

says he‘s not connected.  Then, two days later, on Sunday, the

administration says he is connected. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I can say that the evidence we‘ve now developed

shows that the Pakistani Taliban has directed this plot. 

UNIDENTIFIED MALE:  Mr. Shahzad, who attempted to carry out the attack

in Times Square - it looks as though he was operating on behalf of the

Tehrik-i-Taliban Pakistan - that‘s the TTP.  That‘s the Taliban within

Pakistan. 

(END VIDEO CLIP)

MADDOW:  So don‘t believe what you heard before.  As of this weekend,

the official line is that the Times Square lousy attempted car bomb kid is

connected to the Taliban in Pakistan.  Unless he‘s not. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I am not convinced by the information I‘ve seen so

far that there was adequate, confirmable intelligence to corroborate the

statements that were made on Sunday television shows. 

(END VIDEO CLIP)

MADDOW:  After a closed door briefing yesterday with senior

intelligence and law enforcement officials involved in the Shahzad

investigation, the senior senators on the Intelligence Committee couldn‘t

collectively answer the “is he or isn‘t he” question. 

One of them said the suspect is connected to the Taliban.  One

said he isn‘t.  Here again, Kit Bond of Missouri saying he isn‘t. 

(BEGIN VIDEO CLIP)

SEN. KIT BOND (R-MO):  There are lots of suspicions.  There are lots

of assumptions.  But I don‘t believe, having looked at it, that it shows a

solid tie with the Pakistani Taliban. 

(END VIDEO CLIP)

MADDOW:  But wait.  Then another senator, chair of the Intelligence

Committee, after the same briefing, said not only is he connected to the

Pakistani Taliban, she wants to take it one step further. 

(BEGIN VIDEO CLIP)

SEN. DIANNE FEINSTEIN (D-CA), CHAIRMAN, SENATE INTELLIGENCE COMMITTEE: 

I think there is a very high likelihood that there were interactions

between this suspect and the Pakistani Taliban.  I also believe that the

Pakistani Taliban ought to be on the designated list, terrorist list. 

(END VIDEO CLIP)

MADDOW:  So the Times Square bombing isn‘t connected to the Pakistani

Taliban.  It really isn‘t.  No, it is.  No, it really is.  No, it isn‘t. 

No, it is. 

And we want to change U.S. policy to reflect that very sure fact. 

Is anybody else a little weirded out by the fact that we can‘t get a

straight story about this?  I would be perfectly comfortable with the

answer, “we don‘t know.” 

We‘re investigating.  We‘re investigating possible connections,

investigating both here and in Pakistan.  We don‘t know yet.  We‘ll let you

know when we know.  That would make sense. 

But instead we get these categorical firm statements that the

suspect both has and hasn‘t been conclusively connected to the Taliban. 

It‘s one thing if this sort of contested information is used to decide

whether or not the Taliban is on the designated terrorism list.  We know

they‘re exactly not on a government-approved eco-tourism list in the

meantime. 

The really big deal is that the Taliban and the Taliban‘s

connections to al-Qaeda are the whole justification for why we continue to

be mired in the ninth year of a war in Afghanistan right now, which we were

reminded of today by the president‘s joint appearance with Hamid Karzai. 

(BEGIN VIDEO CLIP)

BARACK OBAMA, UNITED STATES PRESIDENT:  Today, we are reaffirming our

shared goal - to disrupt, dismantle and defeat al-Qaeda and its extremist

allies in Afghanistan and Pakistan and to prevent its capacity to threaten

America and our allies in the future. 

(END VIDEO CLIP)

MADDOW:  We are in Afghanistan purportedly to prevent another

government takeover by the Taliban which would allow al-Qaeda or mean even

the Taliban itself to use that region as a safe haven from which they can

project violence, project force against the western world. 

Since as the president says al-Qaeda and its extremist allies are

in both Afghanistan and Pakistan, why are we just at war in Afghanistan and

not officially in Pakistan, too?  It‘s a very good question.  It‘s an

important question.  It‘s a critically important question. 

(BEGIN VIDEO CLIP)

HILLARY CLINTON, UNITED STATES SECRETARY OF STATE:  We‘ve made it very

clear that if, heaven forbid, an attack like this that we can trace back to

Pakistan were to have been successful, there would be very severe

consequences. 

(END VIDEO CLIP)

MADDOW:  Very severe consequences.  The question of whether or not the

Times Square lousy attempted car bomb kid is connected to the Taliban is

not just frustrating because we can‘t get a straight story about.  It isn‘t

just bewildering that there‘s been such a lack of rigor in the news

coverage about it. 

It is worrying, because getting a real answer to that question, a

real answer, could change the world rather dramatically. 

Joining us now is NBC‘s chief foreign correspondent, Richard

Engel.  Richard, thank you very much for being here.  

RICHARD ENGEL, NBC CHIEF FOREIGN CORRESPONDENT:  It is always a

pleasure.  How are you? 

MADDOW:  I‘m OK.  But I am -

ENGEL:  So I have the responsibility now of changing the world

dramatically? 

MADDOW:  Well, I sort of feel - I sort of feel like I‘m back in talk-

me-down territory. 

ENGEL:  All right. 

MADDOW:  Looking at all those conflicting statements, all that

conflicting evidence. 

ENGEL:  It shows how combined all these groups are right now.   

MADDOW:  OK. 

ENGEL:  You can be a member of al-Qaeda and a member of the Taliban

and a member of the Pakistani Taliban.  And you could be all of these

things at once. 

Or you could be in contact with all of these different groups. 

They live in the same neighborhoods.  They don‘t make - these groups don‘t

make these kind distinctions that we do. 

MADDOW:  If you are an American jerk watching YouTube videos agreeing

with what they are saying -

ENGEL:  You are a lone wolf. 

MADDOW:  You‘re a lone wolf? 

ENGEL:  And this guy was a lone wolf. 

MADDOW:  In the sense that he was inspired by, but not directed by? 

ENGEL:  Exactly.   He wanted to do this.  Who was behind this attack? 

Was it the Pakistani Taliban?  No.  It was this kid. 

MADDOW:  Yes. 

ENGEL:  He was behind the attack.  Now, he wanted to do this.  He was

inspired to do this.  He went to Pakistan to find some people who could

help him do this and he found people who are involved in all of these

different organizations - al-Qaeda, the Pakistani Taliban, Kashmiri groups

they‘re all working together.  They don‘t make these distinctions.

I‘ve met people from the Taliban.  And I asked them - I said,

“Are you also working with al-Qaeda?”  And he looked at me as if he didn‘t

understand the question.  They were like, “We are all Muslims.  We‘re all

together.  We‘re all friends.  That‘s how it works over here.”

MADDOW:  Not meaning that every Muslim is part of it, but that we see

one another as -

ENGEL:  A Muslim unit. 

MADDOW:  Fellow travelers. 

ENGEL:  Exactly.   No.  Obviously, not every Muslim is part of it. 

But in their opinion, every good Muslim should be part of it.  That is the

way they see the movement in their extremist outlook. 

So it is kind of the new model.  You have someone from here,

someone who wanted to do this kind of attack and went over as a free lancer

and found some support. 

MADDOW:  Are there things that happened when he was in Pakistan, that

without them, he couldn‘t have pulled off what he pulled off? 

ENGEL:  Yes, probably.  He got extra moral support, more conviction to

do it.  But was it necessary for him to go all the way to Pakistan?  It

probably helped push him over.  It convinced him that this was ultimately

the right thing to do.  But could he have done it in the states on his own? 

Maybe. 

MADDOW:  When you see Hillary Clinton say we made it clear that,

heaven forbid, if an attack like this that we can trace back to Pakistan

were to have been successful, there would be very severe consequences.  I

feel like that sort of categorical statement from the secretary of state

mixed with all the “he‘s connected, he‘s not connected” (UNINTELLIGIBLE). 

(CROSS TALK)

ENGEL:  She is not saying we are going to invade Pakistan.

MADDOW:  What is she saying? 

ENGEL:  There‘s going to be more drones.  There‘s going to be more -

MADDOW:  More of a what we‘re -

ENGEL:  More of what we‘re already doing.  If there is a - this can be

linked back to a particular camp in Waziristan, then you can expect there‘s

going to be more drones raining down on this.  I don‘t think it was a

threat to invade the sovereign territory of Pakistan. 

MADDOW:  In terms of my frustration, which I have been more vocal

about than I would otherwise usually be about a media story -

ENGEL:  No, I can‘t believe that. 

MADDOW:  I mean, I get - I‘m vocal about everything, but I don‘t

usually - I‘m not usually a person inveighs about how things are covered. 

But I this story very frustrating because of the number of anonymously

sourced, seemingly self-serving element and mutually contradictory

statements.  

ENGEL:  Well, there is a self-serving element in this. 

MADDOW:  Yes. 

ENGEL:  And the U.S. has an interest in trying to say that this was

directed by the Pakistani Taliban.  The U.S. has a direct motive in linking

this to the Pakistani Taliban.  And that is to pressure Pakistan. 

The U.S. wants Pakistan to act more aggressively in an area

called North Waziristan.  And in order - by saying, ah, there are direct

links with the Pakistani Taliban which is based primarily in North

Waziristan, you are putting pressure on the Pakistani government to -

MADDOW:  To do something. 

ENGEL:  To do something, to go and engage more aggressively in that

area. 

MADDOW:  And that would also -

ENGEL:  So there is clearly a motive to link it to the

(UNINTELLIGIBLE).   

MADDOW:  And the other side of that coin is that the Pakistani

government has a great interest in saying, “Oh, this kid had no links. 

This kid was just on his own.” 

ENGEL:  And the Pakistani military has been saying that. 

MADDOW:  Yes. 

ENGEL:  We are not sure.  We‘re still investigating.  Because going

in, they don‘t want to be pressured into a dangerous military offensive by

the United States or by some bad car bomber. 

MADDOW:  And that would be really helpful context for people to put in

all of these dumb news stories in all the papers about these anonymous

sources that nobody contextualizes in terms of motivations of this

anonymous speaker. 

ENGEL:  Well, it s a very - and it is very nebulous in terms of how

these groups operate.  And as you say, if you can blame a particular group

and that influences Pakistan, then you have a political motivation. 

MADDOW:  Let me ask you about one other domestic component of this,

Richard.  And that is we are seeing fault lines in explanations of this. 

And even in assertions about the validity of the evidence this case - you

see Kit Bond versus Dianne Feinstein today, obviously both coming out of

the same briefing, obviously both senior members of the same committee -

Dianne Feinstein the chair. 

We are also seeing in terms of that sourcing on how - what this

story really is, different law enforcement sources telling reporters

different things.  The NYPD and FBI notoriously competitive on

counterterrorism cases. 

ENGEL:  Absolutely. 

MADDOW:  Is that part of why there have been so many self-serving

leaks about this case?   

ENGEL:  I was actually told that the FBI and the NYPD worked very

closely on this, in the intelligence sharing, at least in capturing Faisal

Shahzad and getting information up the chain of command went quite well. 

I think it is more going back to this thing that people don‘t

quite understand how these groups operate.  And if I‘m a freelancer and I

go over to Pakistan on my own and I want to carry out this kind of attack

and I do it and meet people, well, was I a freelancer?  Was I working for

them at the time? 

It‘s where does the contract begin?  Who is your employer if you

are a freelancer?  And so -

MADDOW:  Right.  So it‘s non - understandable non-specificity. 

ENGEL:  Yes, I think so. 

MADDOW:  Richard Engel, NBC‘s chief foreign correspondent, and always

a very illuminating guest, thank you so much. 

ENGEL:  My pleasure.  Thank you.

MADDOW:  I really appreciate it.  Coming up on “COUNTDOWN,” Keith

calls out Bill O‘Reilly for first claiming Americans can‘t name all nine

Supreme Court justices and then himself forgetting the names.  It is on

tape.  It‘s perfect in every way.  We‘ll be right back.

(COMMERCIAL BREAK)

MADDOW:  That does it for our show tonight.  We will see you again

tomorrow night.  Meanwhile, though, you can E-mail us, rachel@msnbc.com

We do actually read your E-mails.  You can also please hang out with us at

our new blog, “MaddowBlog.MSNBC.com.”  We are very, very proud of it. 

Our podcast is available at iTunes.  “COUNTDOWN” with Mr. Keith

Olbermann starts right now.  Have a great night. 

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY

BE UPDATED.

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