September 02, 2009 MSNBC Keith Olbermann

OLBERMANN: In the 48 hours since Dick Cheney called investigating torture an outrageous political act to former prosecutors, one from each party say they disagree.

In our fourth story on the COUNTDOWN: The torture probe is now getting support not only from former prosecutor Sheldon Whitehouse, the Democratic U.S. senator who joins us in a moment, but also from the nation‘s former top prosecutor, Republican Alberto Gonzales.

First, the senator, the former U.S. attorney in the “National Law Journal,” laying out the legal foundations that justify that require investigation. First, the corpus delicti, the body of evidence establishing the possible existence of a crime. In this case, the Bush administration‘s admission of waterboarding, an act defined as criminal by international treaty and by the U.S. Court of Appeals for the fifth circuit in 1984.

Mr. Whitehouse writing, quote, “For there to be investigation now is unexceptional. The only exceptional is the parties involved: the former vice president of the United States, his counsel, David Addington, Office of Legal Counsel lawyer John Yoo.”

Congressman Jerry Nadler making the same case on FOX News where, of course, the emcee was contractually obligated to interrupt as soon as Nadler mentioned Cheney.

(BEGIN VIDEO CLIP)

NADLER: The law says very clearly that it is the obligation of the attorney general to investigate, to see whether crimes were committed any time there was torture under American jurisdiction. He must do that, if he didn‘t do that, he‘d be breaking the law. My criticism of the attorney general is that he should not limit the investigation to people in the field who may have committed the torture, to people who may have ordered, such as the vice president.

(END VIDEO CLIP)

OLBERMANN: But it was Fredo, poor Fredo who grabbed the headlines by going against the family. He broke their hearts.

Quote, “Let me just say that I have a great deal of respect for General Holder. I think that the attorney general would have made this on his own and I think as the chief prosecutor of the United States, he should make the decision on his own. Eric Holder is looking at conduct that goes beyond the instructions given by the Department of Justice. And if people go beyond that, I think it is legitimate to question, to examine that conduct to ensure that people are held accountable for the actions they take even if it‘s the actions in prosecuting the war on terror.”

With us now, as promised, Senator Sheldon Whitehouse of Rhode Island.

Great thanks for your time tonight, Senator.

SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: Good to be with you.

OLBERMANN: First, your thoughts on Mr. Gonzales endorsing this investigation. Do you think his approval is sincere here? Or is it a function of relief that the aim is no higher than the operatives at the interrogative level?

WHITEHOUSE: Well, at last, he and I agree on something. I think that this sends a pretty clear signal about how very far off base Vice President Cheney was with his remarks when a loyal Bushy like Attorney General Gonzales recognizes what every prosecutor plainly recognizes, which is that, in these circumstances, an investigation is completely unexceptional shows I think that it‘s pretty much, you know, down the middle of the road here what Attorney General Holder is doing. That it‘s not a reach of any kind, and that it‘s very consistent with his sworn responsibilities as our chief law enforcement officer.

OLBERMANN: You wrote that there is “substantial evidence of a back channel between Addington and Yoo.” Mr. Yoo, of course, that is. Can you briefly identify those men and the significance—explain the significance of the back channel?

WHITEHOUSE: David Addington was the legal counsel to Dick Cheney, to the office of the vice president, and John Yoo was the attorney over at the Office of Legal Counsel of the Department of Justice, who was the primary author of the opinions that cleared waterboarding and other torture techniques. And the fact of the back channel between them at least raises the possibility that the opinion by the Attorney Yoo was perhaps as bad as it was because of incompetence, perhaps as bad as it was because of ideology, but also perhaps as bad as it was because of instruction.

And if there was instruction from the White House about this, that raises the whole new set of potential investigative concerns. We‘re now no longer dealing with the question of a legitimate independent legal opinion upon which people relied in good faith. We‘re dealing with the example of the mob lawyer who writes the cover opinion to try to provide some shelter for the crime while he‘s in on it himself.

OLBERMANN: So if—let me just see if I can clarify this for my own understanding. If you had misled the Department of Justice and the CIA about what was legal and this was at the direction of Addington or at the direction of the vice president, all three men could wind up being prosecuted?

WHITEHOUSE: Well, if there was a conspiracy to commit torture, one of the predicate acts of the conspiracy, one of the acts that pulled the conspiracy together, could well have been instructions from the office of the vice president to Attorney Yoo, instructing him how to write the opinion. One could even imagine him saying, “But wait a minute, I found a case on point that says that waterboarding is torture, we can‘t go there,” and Addington saying, “Hey, you know, are you on the team or are you not? Get with the program, this stuff is all going to be very classified, nobody will ever know.”

Very long shot, I‘m not saying that‘s at all what happened. But until concerns like that are settled, the only responsible thing for a prosecutor to do is to go about the traditional practice of investigating the facts.

OLBERMANN: And you also said that as, in your—wearing your former prosecutor‘s hat—that your suspicion has been raised by aggressive claims of executive privilege, by refusal to cooperate with inspectors general, and stories, that you say, can‘t and don‘t withstand scrutiny. Can you elaborate briefly on those points?

WHITEHOUSE: Well, if you—if you don‘t have anything to hide, you don‘t often spend a great deal of time trying to hide it. Under the Bush administration, we saw extraordinary assertions of executive privilege—almost wild assertions of executive privilege to keep Congress from looking at materials within the executive branch of the government.

And you saw what I call the cover story. You‘ve heard it. You know it.

It‘s—the al Qaeda guy was tougher than anybody America‘s ever seen. We tried the FBI and the military interrogators on them but they were too constrained by Miranda and too amateurish to get anywhere. So, we had to bring in the tough experienced CIA interrogators and then they applied these tough but lawful techniques and then we got information that saved lives.

Well, pretty much every element of that story appears to be untrue. And so, when you‘ve cobbled it altogether, there‘s kind of consciousness of guilt in putting together a phony story.

OLBERMANN: And if you don‘t have anything to hide, you don‘t spend a lot of time trying to hide it. That‘s an excellent point.

Senator Sheldon Whitehouse, the Democrat of Rhode Island—as always, great thanks for your time tonight, sir.

SHELDON: Thank you, Keith.