The Rachel Maddow Show, Transcript 01/03/13

Guests:
Adam Eisgrau, Jeh Johnson
Transcript:


RACHEL MADDOW, HOST: Good evening, Ed. Thank you, my friend.
Appreciate it.

Thanks to you at home for joining us tonight as well.

When John Boehner first became speaker after the 2010 elections, the
Republicans stormed up to Capitol Hill and announced - remember this – a
whole new set of rules for the House.

Congress was not just changing the party in charge. They weren`t just
changing leadership. They said they were going to change Congress entirely
as an institution. They were just not going to do things the same way
anymore.

Their most substantive new rule was that no longer would it be
possible to pass legislation that cost money without also passing something
to pay for the cost of that other thing. That was their first big
substantive new rule. You can`t cost the country money without coming up
with some way to pay for it. You can`t just lard stuff onto the deficit –
first new rule.

And for the first bill that they themselves introduced, they had to
suspend that new rule. Their first bill was to repeal Obamacare. Look,
the actual name of the act was “To Repeal the Job-Killing Health Care Law.”
But Republicans knew that doing that would actually make the deficit worse,
$145 billion worse, according to the non-partisan Congressional Budget
Office, who had written a letter to John Boehner explaining just that to
him.

So they knew that this thing was going to cost money, but for
political reasons, they did not like to admit that repealing Obama care
would cost money, and so right after they made a big show of instituting
their new rule, they then immediately had to say they were not going to
apply their new rule to their very first bill.

That should have been a sign for how things were going to go.

Now, today in the final act of that session of Congress, John Boehner
and his Republicans had to do it again. Another one of their rules that
they put on themselves said they had to put legislation online for three
days before it got passed. They did not do that with their last bill, with
the fiscal cliff thing. So for their first act and for their last act they
had to suspend their own rules that they made for themselves to govern
their own behavior.

And that is why there is a John Boehner is bad at his job hypothesis.
I mean, in the House there are no minority rights, right? Unlike the
Senate, if you`re in the majority in the House, you rule. You get to run
things exactly the way you want to.

And it is fine to write yourself a whole bunch of new high-profile,
high-minded rules about how you`re going to conduct yourself in the House.
But if you do that, you then kind of have to conduct yourself by those
rules, right? They`re your own rules. Don`t write them for yourself if
you have to break them immediately and then constantly the whole time
you`re ruling.

But that`s what John Boehner did when he took over as speaker. And
today, John Boehner proclaimed a whole new set of rules that might govern
his behavior this time around – or might not. Who knows?

And the reason he got to do that again is because the Republicans
picked him again to be their speaker. To be fair, they also picked Eric
Cantor. They also picked Allen West, who isn`t even a member of Congress
anymore. They also picked Raul Labrador. They also picked a congressman
named Justin Amash. They also picked a man named Jim Jordan. They also
picked the former comptroller general, David Walker.

And even beyond that, a few Republicans on Capitol Hill today just sat
there stonily and refused to pick anyone.

But in the end, John Boehner did need 214 votes from Republicans to
keep him in place as speaker and he did get 220 votes. So by that squeaker
of a six-vote margin, the “John Boehner is bad at his job” hypothesis earns
another two-year Congress worth of rigorous in the field testing.

When the new John Boehner Congress took over today and the old John
Boehner Congress ended, that was our last chance to say good-bye to a
Congress that got less done than any other Congress in American history,
one that saw public support for Congress drop to the lowest level ever
recorded in the history of modern polling.

And it meant the end of the congressional line for a lot of very well-
known, famous and sometimes infamous members of Congress.

Either because they were defeated or because they left on their own
terms, we can now say goodbye to Congressman Ron Paul. And Senator Jim
DeMint. And the aforementioned Allen West.

And another high-profile Tea Party guy, Joe Walsh. And Senator “not
intended to be a factual statement” Jon Kyl. And Joementum himself, Joe
Lieberman. And Todd “legitimate rape” Akin. And Roscoe “legitimate rape”
Bartlett.

And Jean Schmidt, seen in this cell phone video screaming and weeping
with joy at her own misunderstanding that the Supreme Court had overturned
Obamacare when in fact the court had done the opposite. Still she was very
excited.

We say goodbye also today to Ben Quayle, son of Vice President Dan
Quayle, who came to Washington for his one term in office saying he was
going to kick the hell out of the place.

Goodbye also to Dan Burton, who once shot a pumpkin or possibly a
cantaloupe to try to prove that Hillary Clinton murdered Vince Foster.

Goodbye to the husband and wife team of Mary Bono Mack and Connie
Mack. They are the first husband and wife team to ever be turfed out of
Congress at the same time. Mazel tov.

Goodbye to Democrat Kathy Hochul who you may remember she won that
bizarre, forever Republican district in Upstate New York after a chaotic
Tea Party challenge made the Republicans lose that safe seat for one term,
for her term, after nobody could come up with a politically satisfactory
explanation for the hunky, shirtless photos of Republican Congressman
Christopher Lee that turned up on Craigslist and then on Gawker.

Goodbye also to Dennis Kucinich. Every liberal in the country,
including this one here personally, will miss you.

Goodbye to Rick Berg and to Shelley Berkley and to Denny Rehberg, all
of whom gave up their House seats to try to win Senate seats that they did
not end up winning.

Goodbye to Barney Frank, the great Barney Frank.

Good-bye to blue dog Heath Shuler.

Goodbye to Congress`s only self-proclaimed atheist, Pete Stark.

Goodbye to Dick Lugar. Mr. Lugar, I would be please like to do an
interview with you and I would be grateful if you would consider it,
anywhere, anytime.

Goodbye to Olympia Snowe. Goodbye to Ben Nelson. Goodbye to Jim
Webb.

Goodbye to Scott Brown – and don`t let the door hit you on the way
out.

The entire congressional delegation from New Hampshire in the House
and in the Senate, in the new Congress is going to be female. There are
more female members in the House and Senate than at any time in history in
the new Congress.

There is precisely one African-American member of the Senate in the
new Congress. And he was appointed, not elected to replace Jim DeMint, who
quit his seat unexpectedly without giving anybody any notice.

Today was a day for all change in Washington, the departure of the old
guard and the arrival of the new guard today, including the dramatic and
difficult and ultimately triumphant return of Illinois Senator Mark Kirk,
who climbed the steps of the Capitol today to show that he could, after he
suffered a debilitating stroke a year ago.

The arrival of new stars like Tammy Duckworth, who beat Joe Walsh.
Tammy Duckworth, the Iraq war veteran and Black Hawk pilot who lost both
her legs when she was shot down in the war, and then went on to serve in
the V.A.

The departure of the old guard and the arrival of the new guard today.
And the inevitably teary convocation of the new Congress by the frequently
teary Speaker John Boehner gave today the air of sort of the first day of
school up on Capitol Hill.

But, of course, it`s not really school. And these guys are not kids.
They are well-paid, sometimes famous adults, and they are there to do a
job.

Today where the first day of school thing was not a metaphor, where it
really was a school, and a new school at that, and it really was kids on
their first day back was in Connecticut, where the kids from Sandy Hook
Elementary School went back to school today for the first time since the
mass shooting in Newtown killed 20 first-graders and the principal of the
school and the school psychologist and a teacher and a special needs
teacher and a substitute teacher and a teacher`s aide and the killer`s
mother, who was the unwitting supplier of the guns that her son used to
kill all those people before he killed them – before he killed himself.

The kids of Sandy Hook went back to class today at a neighboring
school that has been rehabbed to be as much as possible like their old
school, while their old school stays closed indefinitely because indeed it
is a massive crime scene.

When the president released his New Year`s message today, reflecting
on having gone over the fiscal cliff with the last Congress and then
climbing back up onto the cliff again after the fact, when the president
released this message yesterday he listed five things that he says are on
his agenda to get done for the country now that the fiscal fight is at
least partially over. He listed ending the war in Afghanistan and
immigration and education reform and climate change and addressing gun
violence.

As of yesterday, that is the president`s five-item stated list of
priorities for what he wants to do now in his second term.

There`s one more thing I want to show you. This is a warehouse filled
with boxes and boxes of toys and DVDs and other stuff for kids, stuffed
animals, books, cars, board games. Without context, this is kind of a
little kid`s dream, right? More toys than anyone would know what to do
with.

But this is in Newtown. This is what has been sent to Newtown from
around the country. Newtown officials say these boxes and boxes and boxes
of gifts have been pouring in from every state in the country.

They say they are now overwhelmed by the sheer amount. They are
trying to sort it and trying to figure out what to do with it. They`re
asking people to stop sending things even though it`s understandable why
they might want to keep sending them.

They`re looking to redistribute these things to kids somewhere else
who might be able to use them.

These piles of things in Newtown are the physical manifestation of
Americans all across the country and our feelings about what happened in
Newtown, how much we not only hurt for what happened in this latest mass
shooting, but how much we want to do something about it, how much we want
to try to do something in the name of those kids, how much we want to
inflect the future in some way to change it from what it would be if we did
not react to Newtown.

These piles and piles and piles of things, these piles of stuff make
manifest Americans` excruciating need to help try to make this situation
better somehow, to respond somehow. Is this the only practical thing we
will do? Sending this well-meaning, heartbreaking stuff that piles up,
that we have to hope some other kids somewhere, some other family, some
other town might be able to make use of if we can figure out a way to get
it to them. Will this be the only thing we do? Or will these guys
starting work today with the nation`s fate in their hands, on the most
optimistic day they will ever have in public service, on the first day of
metaphorical school for these guys, will these guys be able to do something
practical as well?

The president says he wants national action to stop gun violence. Can
this Congress do it? Today is day one.

Stay with us. Lots ahead.

(COMMERCIAL BREAK)

MADDOW: As big deals go, the interview on tonight`s show ranks as a
big deal for us. He is the man at the center of many of the most vexing
controversies in government. And even as the man at the central of that
storm, he is being hailed as a hero by some as he leaves office. This is
his first interview since doing so.

Hold on. That`s coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Winding down the war in
Afghanistan in a responsible way, reforming our immigration system and
protecting our children from gun violence, freeing ourselves from foreign
oil and the harmful effects of climate change, reforming our schools and
opening the doors of higher education to more Americans.

It is not enough for us to say this is too hard, so we`re not going to
try. So what I intend to do is I will call all the stakeholders together.
I will meet with the Republicans. I will meet with Democrats. I will talk
to anybody.

I think there are a vast majority of responsible gun owners out there
who recognize that we can`t have a situation in which somebody with, you
know, severe psychological problems is able to get the kind of high-
capacity weapons that this individual in Newtown obtained and gunned down
our kids. And yes, it`s going to be hard.

(END VIDEO CLIP)

MADDOW: President Obama talking about ways to respond to gun violence
in this country on “Meet the Press.”

Joining us now is Adam Eisgrau, who is the principal staffer who
worked on the assault weapons ban that passed Congress and was signed into
law in 1994 and that the George W. Bush administration allowed to expire 10
years later. Had it still been law, arguably it would have banned the sale
of the weapon used in the murders in Newtown, Connecticut, last month.

Mr. Eisgrau, thank you very much for your time tonight. It`s nice to
have you here.

ADAM EISGRAU, HELPED WROTE 1994 ASSAULT WEAPONS BAN: Delighted to be
here, Rachel.

MADDOW: President Obama has said to reforming gun policy, trying to
do something to stop gun violence is one of his top goals in his second
term. He`s tasked Vice President Biden with coming up with some policy
proposals.

From where you have been and what you have done in practical terms,
where do you think they should start?

EISGRAU: I think they should start exactly where they did, Rachel.
The president and the vice president have articulated the need to be
comprehensive in their approach. I think that gun advocates, or gun
control advocates – a term we ought to take out of circulation, by the way
– have in the past some time ago overemphasized the importance of dealing
just with firearms. And to the extent the president is talking about this
holistically and Vice President Biden intends to deal with it that way
through the task force, that`s the right initial approach.

MADDOW: You feel like approaching this with the sort of commission on
mass violence or some sort of approach toward studying mass violence in the
United States rather than talking about guns in isolation is the way to
move forward? Is that what you`re saying?

EISGRAU: Well, I`m not a social scientist and a scholar of the
literature, but I am aware that there is already a lot of research out
there that can be drawn upon to draw up sound legislative proposals. And,
obviously, access to weapons and certain kinds of weapons that I imagine
we`ll talk about is part of the picture. Certainly, it`s just part.

The other significant part where guns do come into play is not making
it about the weapons themselves. We really need to involve people who use
firearms recreationally in the conversation to mobilize their sense of
outrage, along with non-gun owners at what happened in Newtown. I think
that`s the key to going forward.

MADDOW: Do you have any practical ideas for what that might look
like? I mean, I feel like the gun owners that I know, and I know a lot of
gun owners, particularly since I moved to rural western Massachusetts about
13 years ago, I know a lot of people for whom guns are part of their daily
life. It`s part of rural America, no matter where you live in a red state
or a blue state.

I feel like all the gun owners I know have pretty much the same
feelings about Newtown and about the gun violence in our country than the
non-gun owners that I know have.

How do you end up channeling respect for gun ownership into policy
that meaningfully responds to what people do with guns when they misuse
them?

EISGRAU: Well, I think you put your policy money where your mouth is.
You know, it`s great to have, I can imagine, skeptical folks on the other
side of this issue saying it`s great to make these grand pronouncements.
But what are you going to do about it?

Well, when Senator Feinstein authored the 1994 assault weapons ban, it
was called the Public Safety and Recreational Firearms Use Protection Act.
And that wasn`t baloney or an inside joke. The law not only banned the
kinds of guns that you might imagine it would and that it may well again if
her new legislation can be brought before the president, but it also
expressly protected hundreds and hundreds and hundreds of popular
recreational and hunting weapons by name and by law right in the statute.

Senator Feinstein I know intends to include a similar provision in
legislation that she`s going to introduce sometime in January is her
projection publicly. Information about that bill, by the way, is available
publicly on her Web site as well. I no longer work for the senator, but I
think that`s exactly the right idea.

And I think it needs to go further. As I`ve indicated in an op-ed
that I was privileged to have published today, we need other kinds of
proposals that deal with frustrations of gun owners that could conceivably
keep them away from the public policy debate or put them on the wrong side
– frustrations with unnecessarily long registration paperwork,
frustrations with trying to take a lawfully owned gun across state lines
safely, locked in the trunk of a car, for example, in a kid-proof case.

These are the good faith, meaningful proposals that can be made that
can demonstrate to people who own firearms that we are all on the same side
of the issue. We all love children and we all hate and abhor what happened
in Newtown.

MADDOW: The introduction of that legislation by Senator Feinstein,
she`s promised it right at the beginning of the session. There was also
some legislation introduced today on the House side, the publication in
“The New York Times” today of your op-ed, and that conversation about what
to practically do rather than just remarking on the outrage and remarking
the difficulty of the politics I think is a sign that we are going to get
something done. It feels to me like – it feels to me like if something
can happen in 1994 something could happen now.

Adam Eisgrau, former counsel for Senator Feinstein`s Senate Judiciary
Committee when that happened – Mr. Eisgrau, thank you for joining us
tonight. I appreciate it.

EISGRAU: Thank you for having me.

MADDOW: All right. As a person who in the past has been fooled
publicly by really good political satire, tonight I am empathetically
feeling the pain of an NPR station in the Pacific Northwest.

Many of us have been there. They have been there this week, for a
very good reason. They got taken by fantastic satire for a reason that
totally makes sense. That`s coming up.

(COMMERCIAL BREAK)

MADDOW: There are certain interviews that I get to do on this show
that I look forward to for weeks. I call them my blue moon interviews.
Tonight, we have one of those.

This time the guest has firsthand knowledge and understanding of
critical and current American policies, including policies that a lot of
liberals like me really like and policies that liberals like me really do
not like. He knows and understands these policies because in many cases he
has participated in their justification and in their implementation. He
has been right at the center of all of it.

Our guest tonight is Jeh Johnson, who`s just completed his service as
general counsel to the Department of Defense, the Pentagon`s top lawyer in
his first TV interview since leaving office.

That`s the interview tonight, and that is next.

(COMMERCIAL BREAK)

MADDOW: In 1942 and 1943 in World War II, one of the places the Axis
and the Allies really fought it out was in Tunisia, North Africa. The Axis
powers, the Germans and Italians there, they started off looking like they
were probably going to win in Tunisia, but they ended up losing badly.

It took about six months. It took hundreds of thousands of men being
killed. But the ending was decisive. The Germans and the Italians got
routed in Tunisia. And hundreds of thousands of German and Italian
soldiers surrendered and were taken prisoner. And that`s how it works,
right?

So, either if you did not get killed in battle, losing often meant
that you got taken prisoner. It was the Germans and the Italians who lost
that giant battle in North Africa in 1943. The side that won, the Allied
forces in that battle, were from a bunch of different countries, including
us, the United States.

And when it came time to take those hundreds of thousands of German
and Italian prisoners after that battle was won, it was the United States
who took many of them. The U.S. took as prisoners hundreds of thousands of
German soldiers during the course of World War II. Also Italians and
Japanese soldiers but mostly Germans.

We took them prisoner in the United States. Something like 45 or 46
U.S. states had POW camps during World War II. More than 500 camps here in
the United States, where we kept Germans. Not because these were Germans
who were accused of any specific crime but just because they were soldiers
for the other side in a war and we did not want them to go back to rejoin
the fight against us.

We held them inside the United States in POW camps until the war was
over. And then for a little bit longer.

One of the prisoner of war camps that we maintained during World War
ii was here in Deming, New Mexico, down by Las Cruces, pretty close to the
Mexican border. Nowadays, the main drag through Deming, New Mexico, where
I-10 cuts through town, is also called Railroad Boulevard.

And on 22nd, 1945, that railroad and its proximity to everything in
Deming, New Mexico became very, very important to one German prisoner being
held in the POW camp in that town. He had calculated the times at which
freight trains passed by the camp where he was being held. Knowing the
train would come, he waited until just the right time.

He crawled under two gates, and right when he knew that freight train
was going to come rolling down what is now Railroad Boulevard in Deming,
New Mexico he jumped on the freight train. He escaped.

He escaped the German prisoner of war camp in New Mexico September of
1945. And he then poofed. He disappeared in America for 40 years.

He finally, in 1985, 40 years later, he finally decided it was safe to
come out and turn himself in – to Bryant Gumbel on “The Today Show.”

(BEGIN VIDEO CLIP)

BRYANT GUMBEL, THE TODAY SHOW: On Wednesday, nearly 40 years to the
day since his escape from Camp Deming in New Mexico, Georg Gaertner, the
last-known German prisoner of war in the United States, gave himself up to
American authorities, ending four decades of life on the run.

And he`s joined us here this morning along with his wife, Jean Whiles,
the lady who`s been married to Dennis Whiles for the last 21 years. That
was Georg`s name that he adopted.

Good morning. Thank you for being with us.

GEORG GAERTNER, POW: Good morning, Bryant.

GUMBEL: Why after so long did you decide, OK, I`m coming in?

GAERTNER: That – I have to give Jean credit for that, because she
finally got tired of asking me questions about my past without getting any
concrete answers.

GUMBEL: Yes, you didn`t let her in on it. I mean, you got married in
1964, but you didn`t let her in on it until when?

GAERTNER: Until just a couple years ago.

(END VIDEO CLIP)

MADDOW: And so on and so on. A lot about their marriage.

A couple of interesting things about this. First is that what he did
with his 40 years as an escaped German World War II POW secretly living as
an American in America is that he became a very accomplished ski bum and
also a tennis instructor in Hawaii and California and Colorado.

He even claimed in his book that he is the inventor of the aluminum
tennis racket. So he says. So he says. He invented the aluminum tennis
racket.

He surrendered to Bryant Gumbel, right? He also earned his way out of
his accent. But here`s the other interesting thing about him. He escaped
after World War II was over. His country, Germany, of course, surrendered
in May 1945, but Georg did not escape from his prison camp in New Mexico
until September. Not May but September.

What was going on at that time is that the U.S. was in the middle of
closing down its POW camps and sending all these guys back to wherever it
is they came from now that the war was over. They were not going to be
charged with anything. They weren`t seen as criminals. They were just the
other side in a war. And with the war over, it was time to send them home.

Georg Gaertner decided to escape then instead of being sent home
because he didn`t want to get sent home. Where he was going to be sent
home to previously had been Germany, but now, it was going to be controlled
by the Soviet Union, he wanted nothing to do with that, so he got himself
out, he got himself on that freight train, and he reinvented himself as an
American for 40 years because he did not want to be sent back at the end of
the war.

When do the people being held prisoner in this war get sent back?

Since he left for vacation in Hawaii, President Obama signed two last
bills from the last Congress. He signed the fiscal cliff bill, of course,
and he signed the defense bill.

And when he signed the defense bill, he also issued a signing
statement complaining about some new restrictions that Congress put in the
defense bill concerning people who are being held prisoner. He said people
being held prisoner in the war in Afghanistan, being held at the mane
prison there called Parwan, the 50 or so people being held there who are
not Afghan nationals, Congress says they cannot be sent back to whatever
country they came from.

The bill also says that Guantanamo, where there are still dozens of
low-level prisoners that the military says are cleared for release to their
home countries, the defense bill passed by Congress says Guantanamo
effectively cannot transfer most of them back home. It also says the
military cannot move anybody at Guantanamo to the United States to face
trial here or for any other reason.

The president had threatened to veto the defense bill over that, but
he did not. He did issue a signing same disagreeing with it, which may
give him leeway to try to act contrary to what Congress just said in that
bill, but that would probably be a hell of a fight.

We have always held prisoners in wartime, even ones who have escaped
to fulfill their dream of inventing the aluminum tennis racket.

The United States has always held prisoners in war time. And
obviously, we have always killed people in war time. That`s not what is
weird now.

What is weird now is that we are doing those things right now, this
year, for 12 years now, as part of a war that we say is a worldwide war in
which the only declared combatant country is us.

We have been at war before as a country. The reason we agonize now,
the reason we agonize over how we are at war now is because the generally
accepted precepts of war that make us relatively OK with holding prisoners
without trial and with killing people without trial, those are precepts
that also presume that war is a thing that has an end, after which the
prisoners go home and after which we have to arrest people and try them
instead of just targeting them and shooting them from afar.

When does this thing we`re in now end? And if it does not have an
end, and I`m not speaking as a lawyer here, I`m just speaking as a I a
citizen who feels morally accountable for my country`s actions, if it does
not have an end, this thing we`re doing now, then morally speaking it does
not seem like it is a war.

And then our country is killing people and locking them up outside the
traditional judicial system in a way that I think we maybe cannot be
forgiven for.

The most senior member of the Obama administration who is making the
case that legally and ethically the war we are in right now must have an
end someday is Jeh Johnson, who until this past week was the top lawyer at
the Pentagon.

(BEGIN VIDEO CLIP)

JEH JOHNSON, FORMER PENTAGON GENERAL COUNSEL: Now that efforts by the
U.S. military against al Qaeda are in their 12th year, we must also ask
ourselves, how will this conflict end?

I do believe that on the present course there will come a tipping
point, a tipping point at which so many of the leaders and operatives of al
Qaeda and its affiliates have been killed or captured, and the group is no
longer able to attempt or launch a strategic attack against the United
States, such that al Qaeda as we know it, the organization that our
Congress authorized the military to pursue in 2001, has been effectively
destroyed.

At that point, we must be able to say to ourselves that our efforts
should no longer be considered a, quote, “armed conflict” against al Qaeda
and its associated forces.

(END VIDEO CLIP)

MADDOW: Jeh Johnson has just left the Pentagon after serving there as
general counsel for the president`s first term. He is being discussed now
as a possible second-term attorney general after Eric Holder leaves. He is
even being possibly discussed as a Supreme Court appointment should there
be a vacancy this term.

He`s being hailed by civil rights advocates as he leaves office for
his instrumental role in shepherding through the repeal of “don`t ask,
don`t tell.”

Here tonight for his first interview since leaving the Pentagon is Jeh
Johnson.

Mr. Johnson, thank you for being here.

JOHNSON: Happy New Year.

MADDOW: Happy New Year. I warned you that I give long, weird
windups. I also know that you know that I`m not a lawyer.

JOHNSON: That was creative. Very creative.

MADDOW: That is very diplomatic.

Does it strike you that I am approaching these questions historically
or ethically from the wrong direction? Is that the right part of history,
the right type of previous American behavior to consider when asking these
kinds of questions?

JOHNSON: Well, one of the points that I made in the speech that you
referred to at Oxford was that because we are in an unconventional armed
conflict against an unconventional enemy, a non-state actor, it`s important
to apply conventional legal principles, traditional legal principles, like
some of the legal principles you referred to earlier.

And so, we look to examples set in World War II, for example. And I
referred to them in my Oxford address. It is the case that after the
conflict against Germany was over, we retained a certain number of POWs
past May 1945, either for trial at Nuremberg or other reasons.

And so, at some point, we are going to have to face the question when
the, quote-unquote, “armed conflict” is over, what we are going to do with
Guantanamo detainees who are not being prosecuted in one form or another.
We have to face that question.

MADDOW: What do you think we are doing as a country now in national
security terms that we will not be doing in a few years or whenever it is
that we have reached that tipping point that you described in your speech,
that the war as such, as it is, will have ended, the post-9/11
authorization for the use of military force will no longer apply? What are
we doing now that we won`t still be able to do once that authorization
doesn`t apply anymore?

JOHNSON: Well, the authorization that was passed in 2001 was
basically authorization for the military to engage in armed conflict.
Armed conflict means that a privileged belligerent, as we refer to a
soldier or an airman or a sailor or a marine, is authorized to use lethal
force to capture or kill the enemy.

The enemy does not necessarily legally need to be an eminent threat to
the country or be someone in the act of planning a terrorist attack or
something. If you see a senior member of al Qaeda in a remote location,
for example, the military is authorized by that AUMF to take action against
that person because we consider ourselves in an armed conflict with that
particular enemy.

Once that authorization at some point is no longer in effect, we have
to, in my view, revert to the more traditional approaches to
counterterrorism and law enforcement. And so, it can`t be – it shouldn`t
be regarded as a perpetual war without any sort of end. In my view war,
armed conflict must be regarded as finite and an extraordinary state of
affairs.

MADDOW: You – when you talked about the prospect of reaching that
tipping point, the thing that I think was so notable about it and the
reason it got as much attention as it did is because I don`t think anybody
else at the echelons of government that you are in has ever tried to warn
us to look for that tipping point. To be on the lookout that it might be
even on the horizon.

How do you think we will know when we get there? And who has to
certify that we`re there?

JOHNSON: That`s a good question. And I was first asked this question
in a congressional hearing in 2009. I`d been in office for about six
months. And the chairman of the House Armed Services Committee, Ike
Skelton, asked me in his very courtly Missouri way, “Mr. Johnson, you`re a
smart lawyer. When is this war going to end?”

And I have to admit, I didn`t have a good answer for him at that
point. So it`s a question I`ve been thinking about for a couple of years,
and I received that invitation, and I knew I was getting toward the end of
my time at the Pentagon, and I said, I want to try to take this on.

And I talked to a number of colleagues in the administration who were
fully supportive of thinking about, talking about this issue. And so, it
was something that I did try to take on. And as you know, it caught a lot
of attention because we hadn`t really talked about this before.

One of the things that I thought was notable from your lead-in were
these detainee restrictions that we face every year are things themselves
that have to be an end at some point. For example, one of the provisions
in this year`s defense authorization bill , which has been there for the
last year or two, is a requirement the secretary of defense certify that a
detainee meets certain criteria before we can transfer that person back,
even to his own country, even with the consent of that country, with our
consent. The secretary of defense has to personally certify things about
the detainee and about the receiving country that are very, very hard to
meet.

And I think we`ve probably had zero certifications since that has
occurred because the provisions are so onerous. And these are things that
we just simply cannot continue to have in place. At some point, for
example, we ought to consider transfers of detainees for strategic reasons,
for reconciliation, for example, purposes.

And so, it will be in our national security interest to transfer
select members of, say, the Taliban because everyone agrees it should be
done. And so, these restrictions have to have an end at some point.

MADDOW: Jeh Johnson, can you stay here for just one more moment?

JOHNSON: Yes.

MADDOW: I promise I won`t be quite as weird in the lead-up in the
next segment. We`ll be right back with Jeh Johnson, former Pentagon
general counsel.

Stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA: This is done.

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

MADDOW: That was the scene when on December 22nd, 2010, President
Obama signed into law the repeal of the military`s “don`t ask, don`t tell”
policy.

Jeh Johnson, who`s the former general counsel at the Pentagon who was
instrumental in shepherding through the Pentagon side of the repeal of
“don`t ask, don`t tell”, is still here. Thanks for staying with us.

You are a Democrat, I`m guessing.

JOHNSON: Yes.

MADDOW: You have been involved in Democratic politics. You advised
the presidential campaign of President Obama in 2008, John Kerry in 2004.

JOHNSON: Yes.

MADDOW: When you were asked by the president to serve as general
counsel at the Pentagon, did you know that would entail the intensive work
you did on “don`t ask, don`t tell”?

JOHNSON: No. This was something I knew the president in the campaign
had pledged to seek repeal of in collaboration with the military and with
Congress, with careful consideration. Basically, we didn`t want to get too
involved in the issue too early in 2009. And in the beginning of 2010,
Secretary Gates asked me if I would co-chair the working group that would
study the risk of repeal of “don`t ask, don`t tell” over a period of ten
months, which would then happen to land in the middle of the lame duck
session of Congress two years ago.

And so, we undertook that study in February 2010. General Carter Ham,
who was then general commander of U.S. Army Europe, who happened to have
been a great co-chair, a great selection for this assignment. And we had
this remarkable basically U.S. military-wide conversation about whether
this law could be repealed in 2010, 2011.

We had a survey of 400,000 servicemembers, 150,000 spouses. Carter
Ham and I basically went to something like 95 different military
installations. We had these large group sessions. Many of them we did
ourselves.

And we basically had a conversation with the entire U.S. military
about this issue and about this law. We learned some very interesting
things.

MADDOW: When you surveyed members of the military on this, I know
that in the Marine Corps, survey respondents from the Marine Corps, the
majority of them said, actually, it is going to be a problem to repeal
don`t ask don`t tell, we anticipate that this is not going to go –

JOHNSON: Well. That`s interesting.

War fighting units, the Marine Corps, they all predicted horrible
things if the law were repealed. However, we found that when they asked
people about the actual experience of serving in the unit with somebody
they believe to be gay, in year 2010, most servicemembers recognize, even
with “don`t ask, don`t tell” in place, that they were in a unit with
someone who was gay. They recognized that. And when we asked them how is
the experience, even in war-fighting units, they rated the unit`s ability
to perform to get its job done very high in like the 85 to 90 percent
range.

So, when you focused people on the reality rather than the perception
or the stereotype of what it would be like to serve with someone who was
openly gay, and experience was almost always positive, even in those Marine
Corps where they have the experience. It was always very positive.

MADDOW: Do you feel that the repeal has gone as smoothly as it seems
to have gone? I mean, you have direct experience in terms of what the
Pentagon knows as of a couple of weeks ago. The – I know that there was
some consternation that people who served before “don`t ask, don`t tell”
was repealed and who were kicked out have not necessarily gotten back in,
in large numbers. That`s the only thing that I know that people are
complaining about in terms of the implementation of it.

How do you see the implementations have been going?

JOHNSON: I think it`s actually gone smoother than even General Ham
and I predicted. And I think is a testament to the strength of the U.S.
military, the leadership of the U.S. military that got behind this change
and let the force know that they were behind this change, and it`s a
testament to what we heard a lot in the study face which is that
predictions of change, predictions of what human behavior will be like if
you bring about change are always better than what people think. In other
words, people predict these negative horrible things and when it actually
happens, it goes way better.

MADDOW: They outperform the expectations.

JOHNSON: They outperform the expectations and in the U.S. military in
particular.

MADDOW: Do you see yourself returning to public service anytime soon?
Your name is being floated for a lot of high profile positions, including
potential if Eric Holders in the second term potentially as attorney
general. You`ve also been discussed even as a Supreme Court nominee. How
does any of that strike you?

JOHNSON: This has been – this last go-around was my third in public
service. And I intend to rededicate myself to my private law practice here
in New York, and I have two kids in college age, approaching tuition age,
and so I intend to rededicate myself to my private corporate law practice.

MADDOW: Diplomatically put, as always.

JOHNSON: But I`ve had a remarkable run, I must admit.

MADDOW: Yes.

Former Pentagon general counsel, Jeh Johnson, I should note that upon
the announcement of your resignation, the group OutServe, which represents
currently serving LGBT members of the military put out a statement saying
that you have earned not only their respect but also a place in history as
a warrior for fairness and equality for all Americans.

Not very many people leaving the general counsel job at Pentagon get
that kind of public attention, let alone the kind of public respect. So,
congratulations for that.

JOHNSON: Thank you.

MADDOW: It`s good to see you, sir.

JOHNSON: Thank you.

MADDOW: We`ll be right back.

(COMMERCIAL BREAK)

MADDOW: OK. Take a listen to this audio recording already in
progress.

(BEGIN AUDIO CLIP)

CAPT. PAUL MEHLER: As we flew along the shoreline we did see four
lifeboats that we believe to be from the Kulluk. All right? In addition,
there was some debris in the area but it`s not known if those items were
from the Kulluk.

(END AUDIO CLIP)

MADDOW: Have you ever convened a conference call at work to talk
about some very important thing and then you decided, because it was so
important, maybe you should rehearse what you are going to say before the
call really started. That`s what you were listening to. A conference call
rehearsal or so the participants thought.

Last night, as officials from Shell Oil and the U.S. Coast were
preparing to brief reporters on the Shell Oil rig that ran aground in
Alaska this week, quote, “a microphone to the room was briefly opened and
any reporter on the line could hear those rehearsal remarks.”

One of the reporters on the line was Rich Mauer at “The Anchorage
Daily News”. When he followed up with Shell about what the heck happened
there, what was all that about? A Shell official blamed the error on the
teleconference operator, who is person in Australia, which is a nice.

What shell revealed in that conference call is that they were finally
able to land a team of experts on their beleaguered drilling rig in order
to assess what kind of damage it has sustained. Shell lost control of this
rig earlier this week. They were forced to evacuate their entire crew off
of it. Ultimately, it slammed into an island off the Alaskan coast, which
is where it is now sitting, along with the 150,000 gallons of fuel and oil.

Shell officials say the rig does not appear to be badly damaged. In
terms of those fuel tanks, quote, “The tanks they looked at were mainly in
tact but they did see one that was sucking and blowing a little bit.”

Sucking and blowing it turns out in this case is not a good thing. It
means that there may be a breach of those fuel tanks, somewhere.

The situation is far from settled tonight. We still don`t know how
this thing is going to end. It is still very much in process. But this
latest oil industry accident is, of course, re-igniting a debate in this
country over whether or not oil companies have any idea what they are doing
in this kind of a harsh environment. And whether they can therefore be
counted on to do this sort of drilling safely.

Because of the history of safety issues here, Shell has been kind of
an easy target for environmental groups. There is in fact an entire spoof
Web site designed to look like the official Web site that does nothing but
mock the oil company`s poor safety record and its perceived contempt for
Mother Nature.

The true sign of great satire is that it is so close to reality that
it ends up fooling people and score one for the Shell Oil spoof site.

Yesterday morning, a local NPR station in Seattle reported something
of that Web site as if it were real. It was a purported Shell spokesman
saying, quote, “No one has yet fully determined how to clean up and oil
spill in pack up or broken ice, but that`s exactly a sort of challenge we
love.” Not a real spokesman, not a real comment.

NPR, I feel your pain. I have totally fallen for stuff like this,
too. It is a credit to how good the satire is that occasionally we all
fall for it. And it is a reflection of how bad things are for Shell right
now.

A spokesman for the spoof Web site offered this reaction to the
“Houston Chronicle” today, “Shell`s ongoing incompetence has made our
satire seems plausible.”

If you do satire for a living, that sort of result is in some ways a
dream come true. It`s a Holy Grail. It`s also in this case the worst
thing in the world, which is still unfolding before our eyes. We will keep
you posted on this stranded rig.

Now, it`s time for “THE LAST WORD WITH LAWRENCE O`DONNELL”.

Thanks for being with us tonight. Have a good night.

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

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