forward until we learn the lessons of the past. the argument of -- >> moveon.org -- >> let me finish. some of the worst things to ever happen in this world would never have been corrected. any prosecution requires to look back otherwise it's some sci-fi where you're looking ahead and that doesn't happen. >> i take no value at all in anything moveon.org says, but having said that, looking back could be very detrimental to our country. >> but can it be beneficial? >> it could be beneficial, but on the other hand i happen to believe as joe lieberman does that it could cause more damage and could give more fodder to our enemies who are going to use this against us. they don't fight pursuant to law. they don't fight pursuant to nation state or international treaty. they have no norms, and we do. >> so it's okay to torture people but it's not okay -- it's okay to torture people, that doesn't send a wrong message, but it's not okay to look back at officials who justified it? >> i didn't say that. i said our country has changed under this president, their

tactics why i don't concede were legal under the bush administration, but it's their choice. if they chose to do that, that's fine, but don't look back and demonize members of the intelligence community -- >> brad, let's be clear -- >> and provide fodder to the democrats. >> let's be clear, no the one person is saying we should demonize our hard-working intelligence agents. everyone understands that they've got a very tough job and have a very tough job in front of them. however, when they he cexceed t legal guidelines they ought to be prosecuted. >> we have to leave it there. mo and brad, thank you very much. good to have you back. i'm david shuster. >> another great shaw. "hardball" chris matthews live from new york. "hardball" now. manslaughter. let's play "hardball."

good evening. i'm chris matthews in new york. leading off tonight, manslaughter. the news broke late this afternoon the los angeles county coroner has ruled michael jackson's death a manslaughter. jackson's death was caused by lethal levels of an anesthetic called propofol, that's according to findings by the los angeles chief medical examiner unsealed in court documents in houston, texas, just today. we'll have the latest details in just a moment. plus, terror report. conservatives wanted it kept under wraps. liberals wanted it out, and tonight a cia report on the treatment and mistreatment of prisoners in iraq and afghanistan has been released for all to see. the report reveals that cia interrogators threatened to kill the children of a september 11 suspect. in another case an interrogator allegedly tried to convince a suspect that his mother would be sexually assaulted in front of him. at the same time attorney general eric holder has decided to appoint a special prosecutor to look into possible abuses.

this has huge consequences for president obama, who was wanted to avoid prosecutions and concentrate on his domestic agenda. we'll talk to two former members of the cia. also, two republican senators said yesterday the absence of senator edward kennedy from the health care debate is preventing a deal from being made. that's big news. and can you imagine a u.s. congressman responding to an audience member who called himself, quote, a proud right wing terrorist by saying amen, god bless you. now, there's a great american. well, it happened. and we'll tell you who said it in the "hardball sideshow" tonight. but we begin with the news about michael jackson. an msnbc.com's courtney hazlett. we've been waiting for this report for weeks now. i have been around the world lately in africa and places like that. this is going to be a bombshell. >> it's definitely a bombshell. weaver been waiting for it, talking about it, saying the word manslaughter over and over again and how it would likely be applied to this case and finally here it is today.

surprising in its timing, of course. also surprising, it comes on the heels of this search warrant affidavit becoming unsealed. it was filed in texas. it's unsealed, and it has to do with that texas investigation. what we learn here is the time line of events that took place the night that michael jackson died. i thought it was very interesting. conrad murray allegedly in this affidavit said that he gave michael jackson a number of drugs beginning at 1:30 in the morning valium, ativan, versed, then ativan again and versed again and finally at 10:40 on the morning he died profoe follow diluted with lidocaine. he left the room for two minutes and when he came back michael jackson was not breathing anymore and that's when resuscitation efforts began. finally for the first time this is a bombshell as well, we have some sort of chain of events of exactly what happened, what was administered and in what doses. >> courtney, around the world this isn't going to be complicated. the word is going to be out the

streets of every county, village, township in the world, somebody killed michael jackson. somebody killed him. that's the way manslaughter will be read. >> that's how it will be interpreted. >> is there any other interpretation? >> the eyes of the law it means he was killed out malice. it's an important indication here. something you have to be careful about especially once we start to say who is being charged. all we know is los angeles is saying it is manslaughter. they're not saying who did it. they're not say -- >> well, someone will be charged. >> you are right, someone will be charged. >> and someone killed michael jackson. >> someone killed mad eed madges it intentional? >> the world is going to interpret this the way it will. i can predict to you right now people will have their own interpretations. >> certainly. >> people will say somebody killed had i am and they wanted to kill him for political reasons. someone will find that reason. >> there are people inside the jackson family who tell me they believe michael jackson was worked to death and we can expect wrongful death suits, not just including dock tirs, but

including business associates and people -- >> what do we know about conrad murray without incriminating him? >> we know he is a medical doctor. >> is he a concierge doctor? >> i think he could be classified by one, yes. he was bought by michael jackson at a monthly fee. >> to get prescriptions for him? >> more or less, yes, to be on call 24/7. con rat murray says he gave michael jackson propofol every night for six weeks and only then did he decide okay maybe he has an abuse problem with this drug. it's somewhat confounding. >> it's a very strong anesthetic. it puts you away basically. puts you to sleep. >> it puts you under. chris, how many times have you heard somebody waking up from surgery and saying i feel so rested. you're not really sleeping. you're being put under. you are unconscious. also, we know he describes himself as a cardiologist. he's not board certified. >> he wasn't much good at the time of the death. >> it would appear that he was

not. in here it says he did administer cpr to michael jackson and at one point left the room midresuscitation. i found that to be a little bit confounding as well. >> the trial will be interesting. courtney hazlett, thank you for bringing us up to date. let's go to the reverend jesse jackson. reverend jackson what i think the world, and i have been out there and you are around the world all the time, hears manslaughter, michael jackson, what will they put together here? >> they will put together all of the theories, conspiracy, irrational theories that michael was killed. the question become what is doctor or doctors participated in that process. i'm sure there will be unending lawsuits because the accused will face a court of law and will make the case, and the question is how long did this take place? how many doctors were involved in the process?

>> you know michael jackson, you knew him when he was alive. did you have a sense he was in control of his own destiny, that was making rational decisions and reasonable decisions about his own medical treatment and the kind of stimulation or anesthesia he was accepting? >> i did not know about michael's medical treatment. i knew him since he was maybe 9 years old. i spent a lot of time with him the last three or four years as he was preparing to get his catalog in place. i spent time with him as he was preparing, excited frankly about going to london to take the next phase of his career. so we never got into that. never had any idea that he was this deeply involved in any kind of substantial abuse. >> let me ask you, you're a man of the world, ren rend.

y you know how big the world was in terms of this man. i was lucky enough to be in africa right after his death and i can tell you the local newspapers in countries like swaziland, south african press, white and black readership for both, huge stories about his funeral. i can only expect that tomorrow morning you're going to see headlines like you can't believe, that word manslaughter. it's going to be powerful. >> well, i think that those who would try to make the case that the doctor was connected to aeg, they'll try to make that case. there are those who will try to make the case he's worth more dead than alive. there will be a lot of theories. i hope we can arrest some of those theories and let this be handled as calmly as possible in a courtroom and not just a newsroom. news rooms are going to be wild. this is really news ratings stuff. i don't know that that helps his family. doesn't help his legacy. >> yeah. reverend jackson, thanks for

taking your time getting on the phone so quickly. thank you very much. let's turn to george lewis in los angeles. what do you have, george, in terms of this notion that we're now facing what looks to be a coming -- not a homicide charge, but a manslaughter charge coming here? >> yeah. the los angeles police department is telling nbc news that this is, indeed, a homicide at this point, likely a manslaughter case. very interesting, the affidavit that was unsealed today in houston, texas, shows some strange conduct on the part of dr. murray as jackson was dying. murray told police at the time that he saw jackson wasn't breathing at approximately 11:00 in the morning, but then the police pulled murray's cellular telephone records showing him on the phone with three different callers for about 47 minutes starting at 11:18 until about 12:05 that day. so there may be some evidence there that murray wasn't paying

close attention to jackson's condition. propofol is an extremely dangerous anesthetic drug that needs to be administered usually under hospital room conditions, under operating room conditions, and he was doing this at jackson's home. so if this turns into a manslaughter charge, the charge will probably be that he gave a legal drug but did so in a rather unethical manner and careless manner that obviously led to jackson's death. that will probably be the charge if it turns into a manslaughter case, chris. >> george, looking at the document itself that was released in harris county today in houston because that's where mr. murray lives and practices, can we -- without projecting an inch beyond the document itself, what does it tell us? >> it tells us that there is evidence that dr. conrad murray prescribed propofol and a whole

medicine chest full of other drugs to jackson, who complained that he didn't sleep. that at one point he felt that jackson was becoming hooked on propofol and tried to wean him off the anesthetic, but that jackson complained he couldn't sleep without it. so he was trying other drugs, other tranquilizers, and when jackson complained that he couldn't sleep, then he administered to him the propofol in addition to the other drugs on the day that jackson died. so the question is was it the propofol or was it a combination of drugs that killed jackson? obviously, now police calling this a homicide. they think that the actions of dr. murray probably led to jackson's death. >> just to get this straight, this is going to be handled in what county court? los angeles county court? how will it be handled legally? >> this would likely as most murder cases are, including the very famous o.j. simpson case, it would probably go to los angeles superior court because this is the county where

jackson's death occurred, where the alleged crime occurred. so dr. murray, we're not quite sure where he is at this moment. he has practices in houston and las vegas and also here in los angeles. we're also being told by the los angeles police department that there is no arrest imminent. >> okay. thank you very much, george lewis for nbc news in los angeles. coming up, that cia report just out late today detailing some of the things interrogators did to terror suspects. finally, thanks to freedom of information and the aclu, we're going to find out right now when we come back what was done to those suspects. the justice department wants an investigation into some of those bush era tactics. we've got a special counsel about to be named. in fact, he has been named, john durham. he's been named by eric holder, the attorney general. let's get reaction from two former cia officers coming up next. you're watching "hardball" only on msnbc. (announcer) before they give you the lowest price, some pharmacies make you work for it with memberships and fees. but not walmart. they have hundreds of generic prescriptions for just $4

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welcome back to "hardball." today a cia report on the treatment and mistreatment of prisoners in iraq and afghanistan has been released. and it has new details about the kind of tactics used by cia interrogators out in the field. meantime, attorney general eric holder has announced a prosecutor to investigate whether any of these tactics broke the law. we have two former cia officers joining us in a minute, but we begin with what's in the cia report itself. with nbc justice correspondent pete williams. pete, what's in it? >> well, it says some new things we hadn't learned before and it makes very clear that these were techniques that were not authorized by the cia, that went beyond the scope of what was authorized by the justice department. for example, one detainee was --

a hood was was placed over his head. evers naked and an electric drill was revved behind his head. the same detainee, there was a gun held by his head and the gun was racked to make the sound of the bullet entering the chamber. another detainee was in a room, the gun was fired outside, and the detainee was led outside the room and there was a guard lying there to look like a dead detainee. other detainees were told we could bring your mother in here, we could bring your family in here. they were told if anything further happens, we're going to, quote, kill your children. in another techniques the carotid artery was pressed on a detainee until he was about to pass out and then he was shaken awake. that was repeated twice more. those are the techniques that -- among the techniques were told that caused the concern of the attorney general. he's asked john durham, who is already looking into some cia matters, to add this to his portfolio, and durham will look

and see whether these cases could be prosecuted. now, that's a tall order because you've got a very difficult thing here with these cases, the cia's inspector general's report is looking at things that happened after 9/11 up to october 2003. so you have cases that were a long time ago, hard to find witnesses, hard to find evidence, but he's going to look into probably ten cases in all we're told. >> and the president said he doesn't really want to do this, didn't he? >> well, what he's said is he doesn't want to go back -- you know, i guess whether the president said he doesn't want to do this or not is a good question. what robert gibbs said today is the president doesn't want to go back and look at anyone who was following the rules. these allegations are certainly outside of that boundary. >> i see. >> and it's quite clear i think now that this is pretty much the universe of case that is eric holder wants a prosecutor to look at. it's quite clear tonight that he's not going to say that a prosecutor should look at bush administration officials who conceived of this enhanced

interrogation program or the justice department lawyers who authorized it. >> okay. thanks, pete williams at the justice department. joining us bob bair, former cia case officer and time.com's intelligence columnist. and tyler drumheller, who is also a cia guy. he was a cia european division chief. let me start with bob on this question. do any of these allegations surprise you? does this seem extraordinary, this technique, clicking a gun with a guy blindfolded? using a drill in this same way? scaring a guy about what they're going to do to his relatives? is this really far beyond the orbit of what's normally done to get information? >> oh, absolutely. when i was in the cia, and up until 9/11, this was considered beyond the limits completely and illegal. this happened during the bush administration and it's something entirely new. it's a violation of american law, no question about it. >> let me ask tyler the same question. does this sound well beyond the purview of what normally done? >> this is completely different. this is outside the scope of

what an energy service is supposed to do, what any civilized people are supposed to do. new jersey service are supposed to recruit sources and gather information. this is illegal activity, but it's a policy problem as well, too. it isn't just these bad individuals. >> right. let's listen to something the vice president said in the days just after 9/11 that really gets to it. he said it on "meet the press," open society you might say. here is what he said. >> we also have to work sort of the dark side, if you will. we have to spend time in the shadows in the intelligence world. a lot of what needs to be done here will have to be done quietly without any discussion using sources and methods that are available to our intelligence agencies if we're going to be successful. that's the world these folks operate in, and so it's going to be vital for us to use any means at our disposal basically to achieve our objective. >> well, there he is telling tim russert any means at our disposal. i must ask you first of all,

bob, i assume the cia watches "meet the press." i'm not kidding here. these are directions from the top. is it fair to say that an operative interrogating somebody might be listening to the vice president when he's doing his job or her job? >> chris, it wasn't just the vice president. this went right up the chain to the director of operations, to the director himself. they cannot claim they did not know what was going on. no cia officers i have ever worked with would willingly and gladly do this without directions. there should be accountability at the top. no question about it. >> were they getting it right there on television? >> and on television. i mean, and they knew they were pressing the law on this or going over the top on this. there's no question about it. this is not the way the cia works. for all these years since it was founded after world war ii. it was, as tyler said, it was to recruit sources, volunteers, and debrief them and send in reports and that's what the cia was about. this administration, the bush

administration, changed those rules. >> is that the way you read it, tyler, whatever is necessary, a statement by the vice president that couldn't be more clear, whatever is necessary. >> i think and the tone that was set right after 9/11 there was an idea that we were about to be attacked again, everything that was -- could be done would be done. when they talk about outside the law and outside the regulations, bob knows this, that you get regulations, you get guidelines, but those are very general. even the guidelines in this were very general, and they're open to interpretation and it's the responsibility of the people at the top not to define it for the people at the bottom. >> i'm a defense attorney. anybody picked up under this charge, any operative charged for going beyond what was normally the standard procedure for the agency. i'm a defense attorney. i don't have to be a brilliant guy, i don't have to be edwards bennett williams to say, members of the jury, please watch "meet the press" a few days after

9/11. tyler, you're shaking your head. that's what i'd do if i was a defense attorney. >> that's right, yeah. >> it seems appropriate to me. your thoughts? >> that's exactly the defense they'll take. in fact, the prosecutions, if there are any at the end of this, are the least important thing. what they need to do is make sure this doesn't happen again, the misuse of an intelligence service and in doing that they don't go too far the other way and get to the mistakes the fbi often makes which is focusing only on criminal prosecution. it's a very complicated process, way yont just prosecuting a few people that exceeded their brief in this. >> bob, i have to tell you, i have no idea what goes on when we try to get top stuff from top people of the bad guys, if you will. but you guys are pretty insi insistent this goes beyond the limits. >> it absolutely goes beyond the limits. it's torture. the definition of torture conventions, the jen neva conventi convention. it is clearly -- the kri has understood this for years it went beyond anything past practices. i have no doubt about it.

this is against the law. >> thank you very much bob bair and thank you tyler drumheller. it's great having expertses on the program. up next, a u.s. congressman calls a self-described right wing terrorist a great american. that's his reaction. that profile in courage coming up in the "sideshow." by the way, the "sideshow" is getting very well named by the behavior of the wing nuts. you're watching "hardball" only on msnbc. ( siren blaring )

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back to "hardball." time for the "sideshow." first up, u.s. congressman trent franks of arizona has upgraded the birther bs. this weekend mr. franks informed the public town meeting that he had been considering bridging a lawsuit in the matter. it's not quite clear whom he intended to sue. the president i guess. here is the problem with this. if barack obama was not born in

the u.s., which a comp temporary newspaper announcement of his birs and the standard documentation made available by hawaii attest, then there's nothing to this birther craze. if everyone else at the time as well as the state bureaucracy of hawaii affected that, then barack obama is not only the legitimate president, he's in in country illegally. the correct action for you to have taken if you were serious wasn't a lawsuit, it was an arrest warrant and swift deportation. that's if you're serious and not just one of those pandering to the worst impulses of the frightened people out there. the press secretary put the word that the congressman was considering filing a suit but had changed his mind. next up, here is one from republican congressman wally herder of california. at his town hall meeting some

guy yelled out bragging that he was, quote, a proud right wing terrorist to which the congressman responded, amen, god bless you. now, there's a great american, a great american. a guy who thinks it's okay in this day and age to call himself a right wing terrorist. this is the dangerous edge on which these people, including some elected officials, are now dancing. we've been here before. words lead to actions. words create the national mood. the mood creates a license. people take that license and use it. i'm not spelling it out any further because i don't want to. time now for tonight's big number. here it is august and what percent of the top policymaking jobs in the obama administration have been filled? well, according to a study reported in today's "new york times," just 43% of those jobs, less than half. a big factor? the obama team's having a tough job getting its people vetted. seven months in, the white house has just 43% of its policy team in place. that's tonight's big number. up next, john mccain says the health care debate has been

hurt by ted kennedy's absence. how much the democrats miss ted kennedy's leadership? a whole lot. you're watching "hardball" only on msnbc. me? find love on the internet? skeptical! oh, my gosh. (woman) find your perfect plac at remax.com. (doorbell rings) you had me at "ding-dong." where do you want to be? some pharmacies make you work for it with memberships and fees. but not walmart. they have hundreds of generic prescriptions for just $4 for up to a 30-day supply or $10 for 90 days. save money. live better. walmart.

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i'm julia boorstin with your cnbc market wrap. stocks finishing relatively flad toot failing to extend a four-day rally. the dow jones industrial gained three points. the s&p is off half a point. the nasdaq is down almost three points. investors took a little breather today after last week's hectic buying. financials surged, then retreated as investors started looking ahead to another round of treasury options. heavy buying of frannie mae and freddie mac shares left some analysts scratching their heads. investors appear to be gambling the government will leave the lenders in their current form

long enough for them to earn their way back from recent losses. the north carolina bureau of prisons says a new york post story of bernie madoff's health is full of inaccuracieinaccurac. contrary to speculation, he is not terminally ill and has not been diagnosed with cancer. that's it from cnbc, first in business worldwide. now back to "hardball." welcome back to "hardball." ted kennedy's absence is certainly felt in the fight for health care reform. here is senator john mccain yesterday on abc's "this week." >> no person in that institution is indispensable, but ted kennedy comes as close to being indispensable as any individual i have ever known in the senate because he had a unique way of sitting down with the parties at a table and making the right

concessions which really are the essence of successful negotiations. so it's huge that he's absent, not only because of my personal affection for him but because i think that health care reform might be in a very different place today. >> well, is senator mccain right. clarence page is a syndicated columnist and the boston globe's susan milligan is authors of "the last lion. quti" "talk what is the condition of the senator as you can rrp it now for the globe and for us? >> well, obviously it's very tough. he's got a very aggressive brain tumor. we haven't seen him outside in quite some time. his family has been very good about keeping him -- keeping his day-to-day condition very private, but certainly he's not been well. he didn't go to his sister eunice's funeral, and that was

certainly a sign of how things are, and i know that he would want to be in washington right now trying to work on this health care plan if he could. >> is there a calculation, i know it's tough because everybody loves him up there and around the country, most people do actually, do you think he could make a vote in the senate if he had to come down to make a vote? >> you know, honestly, i know that people who don't know him think this is a crazy thing to say, but i can entirely envision a scenario where he would manage to get down there, be brought in with some assistance, and cast a vote to health care. i know it's that important to him. i know if it was within his power to do that, that he would absolutely do that. >> let me go to clarence. looking at this from around the country, the perspective, and you have covered the health care debate, certainly it was going on under nixon and carter, ever since ted kennedy has been a senator. his absence, it seems to me you don't have a quarterback on the field. you have a cheer leader in the president. you don't have a quarterback. you don't have daschle.

you don't have him. you know, where would we be without hubert humphrey for civil rights in the '60s t seems like that's where we are for health care. >> that's where we are. if he had had teddy kennedy and perhaps tom daschle over in the house maybe president obama would have the legislation that he could really talk about right now instead of having five or six bills throating around over in congress. you know, you look at teddy kennedy's history i think his relationship with orrin hatch says as much as anything. hatch came to the senate with the idea of directly stopping teddy kennedy because he represented the liberal establish and its push for issues like health care. then he was working with ted kennedy. that's how effective he was. he actually got through cobra, for example, to help out of work

people buy health insurance and wic, women and infant programs. things like that is what ted kennedy has been so effective in doing, and i think if anybody could get some senators to support a public option, he could do it. right now there aren't enough votes for the public option in the senate. >> susan, i have a bias here and i'm allowed to have a bias. i believe in national health insurance, but i believe it could be done incrementally and i think it should be done workably. i'm not one of those who believes it's better to die in a good cause than to succeed. i have watched that happen with ted kennedy refusing to deal with nixon back when he offered an employer mandate in '74. the fail tour to cut a deal with carter. the failure of the clintons to put a deal and pat moynihan. s easy to fail and say we did the best we could and blame the other side. kennedy, is it true he would have been better at deal making than the guys on the field right now?

>> absolutely. in fact, the senator i had a conversation about this several years ago where he said he did regret not having worked out something with health care with nixon at the time. it was pay or play. they didn't want to do. he wanted a straight up national health care plan. in retrospect he said they could have got something in place and fixed the details later. that's certainly a lesson he brought to doing a lot of other legislation after that. i think right now what he'd be doing in a way that only he can and he's one of the few people with the authority to do this, to go in and say, look, stop fighting about these details. we have an opportunity to make history. this is really probably the third chance in his career they had this opportunity. the first under nixon, the second under clinton. this is the third chance. he said you have to decide whether you're going to stand in the way of history or whether you're going to work out the details and get something done. he might make some compromises, but you wouldn't let it fall apart. >> do they cut a deal right now whereby they push what they can this year and promise they're going to do more later?

in other words, something along the outlines of reform, pre-existing conditions, portability, things like that, cost cutting with the commitment they're going to move ahead with more universal coverage later or do they try to ram down this public option right down through the senate with 50 votes in year? where do you think they're he headed right now? >> i think they're moving towards some kind of deal. whether or not they will get that public option though is an important defining issue for obama particularly with his base because there's a growing sense that if there's no public option, then what's the point? and teddy kennedy certainly learned his lesson early on. he's often said he regrets not going along with what president nixon wanted on health care, which i think in some ways is more radical, if you will, than what republicans want to support now. >> no, it's more radical than the democrats would hope to get done. ironically. nixon had an employer mandate,

employers had to have health care for their employees. that sounds like -- well, i hate to use that bord socialism that everybody is throwing around but nixon was so far out on this one. susan, what are you thinking about all this thing now? he might make it for a vote basically. >> i mean, i just wouldn't be completely surprised if he did that. i think if he's able to do something like that, he will. as for some kind of deal, i think they're going to get something done. i don't know what it's going to be. i don't think that they're just going to let, you know, a handful of senators from a bunch of states that represent less than 3% of the population sort of kill health care. they'll get something done. it might not be exactly what they wanted, but they're definitely suffering for not having the nor there to kind of bust some heads metaphorically anyway. >> to quote an old rival of the kennedys, it's better to light a candle than curse the darkness. >> well said. >> this thursday is the premiere of our documentary here on "hardball" and msnbc of the kennedy brothers, joseph kennedy

jr., john fitzgerald, robert, and ted kennedy. i think it's the best they think we've done around here. i hope you get to watch it. it includes interesting things like jack kennedy himself beginning to dictate his memory wars. it's rather poignant to listen to in the year before he died. here is a look at john f. kennedy, his incredible 1960 presidential campaign. >> join us to register this week to vote, to stand for progress, to move, to move, to go forward. >> for 1960 jack's campaign team developed a new playbook, one that has become familiar in every presidential campaign since. use the power of television and most importantly, take the candidate's case directly to pry mother voters, unheard of at the time and use their toughness, political savvy, and money to win it all. it was a campaign like no other. in 1960 the key battleground was west virginia, a heavily protestant state where kennedy's religion would be put to the

test. as planned kennedy's team played up their man's youth and war record contrasting lieutenant kennedy's hero status with humphrey's failure to serve in world war ii. a fact that still amuses kennedy friend ben bradley who served on a dress troyer in the pacific. >> humphrey wasn't in world war ii. he was a hospital maid or something like that. >> you guys are unbelievable. >> no, but -- >> this is what i'm talking about. you guys kept score on who was in the front. >> we knew people's war records. we sure did. >> there's so much in this you've never seen before about how the kennedys came to power, their whole era in our lives. the kennedy brothers, it airs this thursday on msnbc at 7:00 p.m. eastern right here on msnbc. up next, with attorney general eric holder appointing a special prosecutor to investigate bush era interrogations by the cia, is this exactly the kind of distraction president obama is worried about in the thick of this fight for health care

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claritin at relieving your worst mptoms. and works when you need it most. benadryl. you can't pause life. coming up, will the war in afghanistan be the war for president obama that vietnam was for lyndon johnson. horrid thought, but it's mine. "hardball" returns with "the politics fix" after this. when we're in a sandwich you'll know it we are our own mixed up blend of one of a kind spices we are miracle whip and we will not tone it down what's in it for me? i'm not looking for a bailout, just a good paying job. that's why i like this clean energy idea. now that works for our whole family. for the kids, a better environment. for my wife, who commutes, no more gettin' jerked around on gas prices... and for me, well, it wouldn't be so bad if this breadwinner brought home a little more bread. repower america.

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♪ hello hello hello can anybody hear me? ♪ ♪ i know i know i know i shoulda gone to ♪ ♪ free credit report dot com! ♪ that's where i shoulda gone! coulda got my knowledge on! ♪ ♪ vo: free credit score and report with enrollment in triple advantage. welcome back. we're back with "the politics fix." joining me right now is the waup chris cillizza and time magazine's jay newton-small. thank you for joining me. this is an amazing story. this president has hoped to set the agenda. he wanted it to be health care.

he didn't want to be going back and nailing interrogators or torturers, whatever you want to call them as it turns out now. well, we got a story on our hands here. what do you make of this now? we have evidence out there thanks to freedom of information success by the aclu, we now know that what was done to these suspects, they were by a lot of deaf nations they were tortured. >> you know, chris, i think you hit the nail on the head politically in the intro. this is not something that the obama administration wants to deal with. they made clear from the very start they were not interested in looking back, they wanted to look forward. but the evidence here, don't forget this is always important, not to mention the fact that the ideological left, part of president obama's base, is very fired up about this, the evidence has forced their hand in some ways. it does detract from health care. it does distract -- >> he's prosecuting now because it comes to public light if he didn't when it wasn't in public light. i guess he got his first look at

some of the cases too, i guess. >> that would be my guess not knowing it. but i think what the assessment they made was there was no way that they could not proceed with some kind of investigation. now, if you read this, it's a relatively circumstance cup described narrow focused investigation. it's not a broad look into interrogation tactics broadly. it's looking at ten or a dozen cases. still this is not something the obama administration -- in an ideal word they want to be talking about health care first, health care second, and health care third. and this distracts. >> what do you make of this as a story? it seems to me it will bring the vice president in front and center. a favorite topic on this program and favorite topic of mine. chris is laughing because he knows it's so true. but if you have a top dog like the vice president going on "meet the press" a couple days after 9/11 and basically saying we're going to the dark side, like he's announcing he's darth vader, and saying we're going to do whatever is necessary, it seems to me that any cia

operative with a decent defense attorney can go to any prosecutor like mr. durham and say, look, i did what the boss said to do. >> well, look, i think it's important to make the distinction here that this isn't actually an investigation. this is just a preliminary review, which means that they're just going to be looking into seeing if there's enough evidence in order to actually do an investigation and some sort of prosecution down the road here. and everyone that you talk to about this says it's really hard. i mean, this is like the white elephant of investigations. it's incredibly difficult to prosecute these guys on this stuff because like you said, there's ample reasons to defend themselves. there's a lot of things -- a lot of people they can point to and say this is the policy at the time. this is the reason -- this is what they wanted us to do, but, you know, not only not only th who was in the room? we don't even know. it's hard to have witnesses to say who was there, what were they doing? it's literally, you know, oftentimes the detainee's word against the interrogator's word. so these cases are very

difficult to prosecute. just doing a preliminary review, it's a very, very sort of initial thing. and i think it's -- it's almost like -- and you were just saying it's almost like healthcare. >> let me make it simple. i know you're a straight reporter. i'll go to chris on this for opinion. i'm going to try to get some opinion. the head of this network said lead with o.j. tonight, i'd lead with o.j. if he said lead with michael jackson, i'd lead with michael jackson, and i wouldn't get in trouble for it because he told me to. if the vice president of the united states says, we're going to the dark side. we're going to do whatever is necessary to get the information. we're going to use all the subtrainian routes and methods that are not pleasant. if he told me to do it and i did it, how can i get prosecuted on this? >> your point is why you saw leon panetta, the current head of the cia, many cia defenders say, this is not the right course to go down. this is going to have a chilling effect. this is going to affect the way in which we can legally obtain information. the problem is there's a real

desire among a significant bloc of this country. what partisan side you come from depends on how big that bloc you think is. but they want this to be looked at. they believe there were blatant rules, laws violated. >> let me ask you this question. suppose the vice president found out that someone had taken somebody who was a top suspect in al qaeda and put a hood on their head and put a drill next to their head and turned it on full strength to scare the bee gees us out of them. do you think the vice president would give us any more than that grinning snarl of his. do you think he'd be upset by that? don't do that. you're laughing too, jay. can you imagine the vice president saying, oh, what a terrible thing to do. you didn't do that, would you? how about they shot somebody in the next room and scared the guy saying the gun went off. that's for you next or i'm bringing your mother in next. do you think the vice president would say you're getting too rough? >> i and many other political reporters have gone bankrupt trying to predict what dick cheney would say or do, so i'm

not going to get into that mindset. i do think that his presence at the center of this from just a purely political perspective adds to what jay was saying about the difficulty from a legal perspective. he is such a polarizing figure for so many americans that him being there, i think, makes it -- and him being at the center of this complicates trying to piece this out and figure out what actually happened. dick cheney by his very nature, people feel so strongly about him. they think think he was absolutely involved in this, he wasn't. one way or another, it's hard to get out what actually happened here. >> jay, we'll get back to you on this. i want to get back to you on afghanistan. another huge story that can really hurt the president. we'll be right back. i'm wondering if he's getting into the same kind of sinkhole that lbj was in with vietnam. chris cillizza at washingtonpost.com. i hired him to speak. a lot of fortune 500 companies use him. but-- i'm your only employee. we're gonna start using fedex to ship globally-- that means billions of potential customers.

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progressive. world on yocall or click today. we're back with jay newton small and chris cillizza. this is a powerful story. jay, it seems to me that afghanistan is growing for a problem area, for this president, for our troops over there, especially for the country. >> absolutely. look, you've got senator russ feingold today coming out and calling on president obama to set a timeline for withdrawal of troops in afghanistan 37 that's a big deal. russ feingold spearheaded the efforts to get the troops out 6 iraq. you're talking about the progressive side of the country wondering when are we getting

out 6 afghanistan? are we going to send more troops into afghanistan? that's a scary question. are we going to be there a decade, two decades? that is -- that's what brought down lbj. that was the kwaquagmire of viem that sort of erased the vietnam policy. >> and it would have brought down jack kennedy maybe. obama said this was the necessary war. he said it again last week. necessary or not, is this getting worse? >> you know, i think the president is trying to make a calculation, chris, that is outside of the political spectrum on this. in some ways it's like healthcare. it's something he clearly believes. you go back to the beginning of the campaign. he won over a lot of the liberal left with his call that he was consistent on iraq from the beginning, essentially saying this was a dumb war. he wasn't opposed to wars. he was opposed to dumb wars. this is where on a foreign policy front he looks like he wants to make his mark. it is risky politically. there's no question about it. as jay pointed out, the left already not thrilled with the president over the whole