updated 12/19/2005 2:19:45 PM ET 2005-12-19T19:19:45

Guest: Kate Martin, John Banzhaf

JOE SCARBOROUGH, HOST, “SCARBOROUGH COUNTRY”:  THE SITUATION with Tucker Carlson starts now. 

TUCKER CARLSON, HOST:  Thanks, Joe.

And thanks to you at home for watching tonight.  We appreciate it, as we always do. 

Tonight, you can say good-bye to all of that stuff about how a man‘s home is his castle.  There‘s an new effort to prevent adults from using tobacco in their own homes.  And amazingly, it seems to be catching on nationwide.  We‘ll talk to the man behind it.

We‘ll also tell you about the debate about legally grown marijuana.  Why some researchers say government pot isn‘t worth the paper it‘s rolled in. 

And then the death penalty.  Is it actually too easy on those who commit heinous crimes like those committed by Tookie Williams?  We‘ll hear from someone who believes capital punishment is wrong because it‘s too lenient.

We begin tonight with angry responses from both Democrats and Republicans to the news that President Bush has authorized eavesdropping on American citizens without proper warrants. 

Arlen Specter, senator from Pennsylvania, called the government wiretapping inappropriate.  John McCain said it was troubling.  Ted Kennedy floridly declared, quote, “This is Big Brother run amuck.” 

The president himself refused comment, but here was the response from secretary of State Condoleezza Rice earlier on “The Today Show.” 

(BEGIN VIDEO CLIP)

CONDOLEEZZA RICE, SECRETARY OF STATE:  I can tell you that the president has always lived within the law.  He has always said that he will do everything he can to protect the American people from the kind of attack that we experienced on 9/11.  But within the law and with due regard for civil liberties of Americans. 

(END VIDEO CLIP)

CARLSON:  For more on Bush‘s approval of wiretapping and monitoring of American citizens, NBC News chief foreign affairs correspondent, Andrea Mitchell, is standing by at our Washington, D.C, bureau. 

Andrea, thanks a lot for coming on.

ANDREA MITCHELL, NBC NEWS CORRESPONDENT:  You bet.  A pleasure.

CARLSON:  The president has declined comment.  What is the White House saying through its spokesman?

MITCHELL:  Well, actually, since that happened, Tucker, the president did go on “The News Hour with Jim Lehrer” tonight and did say that he has been obeying the law, that he is committed to protecting Americans after 9/11 and also protecting their civil liberties. 

So clearly, he had a legal advisory that permitted him to do this.  He ordered it by executive order, a classified, a top secret executive order. 

And this meant that he did not have his people go to the special intelligence court where a judge routinely permits warrants that permit the FBI and other agencies to eavesdrop or pick up through other satellites connections, links on American citizens, whether at home or abroad. 

Well, in this case, the presidential order in 2002, after 9/11, permitted them to do this without the judge‘s warrant.  The controversy here is that this intelligence court rarely, if ever says no.  So what was the big deal?  Why couldn‘t they go to court? 

Well, those who defend the practice say that they needed speed, that it was after the capture of several al Qaeda prisoners when they needed to quickly follow up phone numbers in the laptops and other phone numbers in phone books that they had, that they didn‘t want to take the time to go get a judge‘s order. 

CARLSON:  Right.  Here‘s part of the story that confuses me.  According to “The New York Times,” some members of Congress knew about this. 

MITCHELL:  Absolutely true. 

CARLSON:  But you‘re hearing all this outrage today from Capitol Hill as if it was unknown.  If members of Congress knew, some of them anyway, and they disapproved, why didn‘t they say anything about it?

MITCHELL:  Because they would have been breaking the law to say anything about it.  The people who knew were the leaders in Congress and the chairman and vice-chairman of the intelligence committee.  They were brought into Dick Cheney‘s office and briefed by Mike Hayden, then the head of the National Security Agency, now the No. to John Negroponte over at the new intelligence agency, that is the supervising agency.

And briefed on this also by then attorney general Alberto Gonzales, or then I guess he was White House counsel at the time.  So they were completely briefed on this subject, but they were sworn to secrecy. 

And at the time, Jay Rockefeller, we understand, opposed it, wrote to Vice President Cheney, but was told that his appeal would not be listened to or would be—would not change the policy.  And for him to even confirm it now would also be a violation of his oath. 

So the people you hear speaking out on it are those members of Congress that were not briefed and not bound by that secrecy. 

CARLSON:  Interesting.  Do you think that the outrage over this story affected the vote today on the Hill over the Patriot Act?

MITCHELL:  Absolutely, yes. 

CARLSON:  How?

MITCHELL:  Absolutely yet.  Because this just put it over the edge. 

This gave them a lot of ammunition. 

In fact, Arlen Specter, who as you know, has tried to work very hard with this administration and is a former intelligence chairman, has said that he‘s going to hold hearings as soon as he finishes the confirmation hearings for Justice—for judge and judicial nominee Alito. 

So they‘re really all fired up, both Democrats and Republicans. 

CARLSON:  Yes, they sure seem it.  Thanks.  NBC‘s Andrea Mitchell in Washington. 

CARLSON:  For more on this story, we welcome Kate Martin, the director of the Center for National Security Studies.  She joins us tonight from Washington, D.C.

Kate Martin, thanks a lot for coming on. 

KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL SECURITY STUDIES:  Thank you.

CARLSON:  You are quoted about this story in the “Washington Post” this morning as saying, quote, “This is as shocking a revelation as we have ever seen from the Bush administration.” 

And I guess, I‘m not exactly sure what I personally think of this story, but I‘m not convinced it‘s shocking at all.  They are tapping the phones of people that are might be involved in terrorism.  What‘s shocking about that?

MARTIN:  They‘re committing a crime when they do it.  And there was no necessity for them to do it that way, because we have a law on the books, the Foreign Intelligence Surveillance Act, which allows the government to conduct secret intelligence wiretaps and keep those wiretaps secret.

But as part of that law, it says that no one shall conduct a wiretap without getting a warrant from the secret court.  And it‘s a crime to do so.  So the president, evidently directed the national security agency, if the “New York times” is correct, to go out and commit a crime and wiretap America cans‘ phones. 

CARLSON:  With the knowledge of the congressional leadership and the chairman and vice-chairman of the intelligent committees, why would the president do something that was illegal with the knowledge of all these other people, who don‘t work for the administration? Clearly, the administration must think that it‘s legal? They must have a rationale for it, no?

What I suspect, the administration‘s rationale is the commander in chief rationale, because we have seen it before.  And here‘s the argument.  That the president as commander in chief has the authority under the constitution to authorize government officials to break the law. 

And they made that claim explicitly in the context of torture, you will remember, in a memorandum that was leaked to the press and after it was leaked to the pres, they disavowed it and took it back and said, the president had never authorized anyone to commit a crime and torture anyone. 

But in this instance, using the same claim of presidential power, apparently, he has authorized people to go out and break the law and wiretap people.  It‘s an incredible claim. 

I don‘t know of another instance in history, maybe, where the president has said, “Yes, Congress made wiretapping Americans or Congress made this kind of activity a crime, but I, the president, am above the law and can authorize that kind of activity.” 

CARLSON:  What about the point that the “New York Times” makes, that this wiretapping actually helped the U.S. government thwart terrorist acts, including a plot to destroy the Brooklyn bridge?  Doesn‘t the outcome matter?

MARTIN:  Well, the outcome—we, of course, don‘t know the outcome, because it‘s a secret, right?

CARLSON:  I don‘t know.  All of this is a secret.  We know that.  In the same way we know what we‘re talking about with the wiretap.  I mean, it‘s all secrets that we have to assume what we read in the paper today is true, I guess. 

MARTIN:  If—anybody they need to wiretap, they can go get a warrant in wiretap. 

Then there‘s this claim of well, we had to get the ballots. “Well, we had to do it quickly.  In fact, the law has an explicit provision that says they can start a wiretap on an emergency basis for 72 hours and then go get a warrant. 

And the claim that somehow they needed to avoid doing that for national security reasons, they give no explanation.  I can‘t imagine what justification there would be for avoiding getting the warrant. 

CARLSON:  I can‘t either.  Let‘s talk about motive quickly.  Not as if the White House is doing it for a political gain.  A, they wanted to keep it secret; B it‘s not like they‘re going after their political enemies.  They‘re not Nixon, sticking the IRS on their opponents. 

Presumably, the only motive would be to thwart acts of terror and isn‘t that an admirable motive?

MARTIN:  Well, I don‘t know.  I didn‘t mean to raise motive in that sense.  I think the question is obedience to the law. 

You know, the Constitution puts the president in the position of having the ultimate responsibility for upholding the law and defending the United States through upholding the law.  We have the situation, it appears, where the president‘s view is that he‘s going to break the law or authorize others to break the law in the name of national security. 

But in a situation where there‘s no national security justification for doing it, because he could have gone and gotten warrants for doing it, and if it turns out that the law wasn‘t adequate to give them the opportunity to get the warrants, they could have gone to Congress and gotten the law changed. 

CARLSON:  OK.  Well, we‘ll—I guess we‘ll find out, because there are going to be hearings on this.  Kate Martin from Washington, thanks a lot for joining us tonight. 

MARTIN:  Thank you.

CARLSON:  Still to come, anti-smoking activists have already driven cigarettes out of public places across this country.  Now they want to prevent adults from smoking in their own homes.  I‘ll speak to the man behind this campaign when we come back. 

Plus, one college professor‘s crusade to grow a more potent batch of marijuana.  A SITUATION explanation when we come back. 

(COMMERCIAL BREAK)

CARLSON:  Still to come, we‘ll show you the presidential cartoon parody from the fellows at JibJab.com. 

Plus, isn‘t it about time Mexican President Vicente Fox should stop attacking the U.S.?  The border wars continue when we come back. 

(COMMERCIAL BREAK) 

(BEGIN VIDEO CLIP)

REP. STENY HOYER (D), MARYLAND:  The president has failed to create or seek political consensus and has handed the—and handled the war as a partisan effort rather than a national effort.  They deliberately tried to divide us for political advantage.  Americans expect much more than that. 

(END VIDEO CLIP)

CARLSON:  That was Congressman Steny Hoyer of Maryland, speaking at a Democratic rally on Capitol Hill earlier today. 

But according to House minority Nancy Pelosi, who was at the same rally, it‘s not President Bush who‘s dividing the Democrats.  It‘s the Democrats themselves taking different positions on the war in Iraq.  Pelosi says that‘s a god thing.  Quote, “a strength—a source of strength for the party. 

Here to debate that notion, MSNBC contributor Flavia Colgan, who joins us tonight from Miami—Flavia.

FLAVIA COLGAN, MSNBC CONTRIBUTOR:  Good evening, Tucker. 

CARLSON:  So what do you think of that?  So, first of all, Steny Hoyer coming out and saying there‘s one plot on the part of the White House to divide Democrats.  And then Nancy Pelosi is sort of telling the truth, when she said, “We have no idea what to think.”  And then claiming that‘s a good thing.  How can that be a good thing?

COLGAN:  I mean, the Democrats‘ cacophony bangs on, Tucker.  I feel like we‘ve been talking about this for months.  I mean, simply put it‘s not good enough.  I mean, it‘s simply not good enough. 

The Democrats do not know how to run a national political party.  How Nancy Pelosi can get on television and say that she doesn‘t feel the Democratic Party has to have a unified position on possibly, and I think, the most important issue facing this nation.

We have Americans, men and women of this nation, dying every day or every week at least in Iraq, and they want to be all over the place.  I think that good policy is good politics. 

And you know what this is, Tucker?  I could spend an entire show telling you why this is dead wrong, but I‘m just going to take a couple of things. 

This is inside the beltway consultants in Washington, D.C., telling their candidates that somehow they need to have it both ways, because they‘re going to look weak on defense.  Well, guess what?  They look weak by not having a position.  What those Washington insiders should do is, No.  1, get out of their wood-paneled offices and travel the country.  Don‘t go to the Palm for lunch on Monday. 

CARLSON:  Whoa, whoa, whoa, whoa.

COLGAN:  I know you like to eat at the palm. 

CARLSON:  Hold on.

COLGAN:  I knew you were going to say that.

CARLSON:  Hold on, Flavia.  I think it‘s even deeper than that.  Let me just—there‘s this amazing piece Dan Valls (ph) piece in the “Washington Post” today that lays it out. 

He says first you have Nancy Pelosi, the House minority leader, saying we don‘t really have a position and that‘s good. 

Then you have the party chairman, Howard Dean, saying actually, we do have a position and we‘re going to come out with it really soon.  And it is we need to get out of Iraq as soon as possible.

And then you have Rahm Emanuel, probably one of the smartest members of Congress on the Democratic side, saying we don‘t have any position at all, but we‘re going to get back to you on that son. 

So here you have three prominent Democrats, each giving contradictory

or fairly contradictory statements.  Here‘s my question; it‘s a procedural, Don‘t they talk to each other and organize before they come out and do press conferences?

COLGAN:  Look, Howard Dean suffers from a very bad case of foot-in-mouth disease.  So I‘m not really looking forward to him coming out on TV and telling us what the party stands for.

But I mean, these people—like Nancy Pelosi said—I didn‘t discuss it with any of these people.  But again, I mean, I‘m very concerned electorally, even.  I mean, they think they‘re doing this for good politics. 

If I really felt this was a vote just on conscience, then maybe I would say, “Do you know what?  If you really feel that we shouldn‘t have strategic redeployment, if you really don‘t believe with Murtha‘s plan...”

CARLSON:  Right.

COLGAN:  Which I think is the best plan out there, fine.  But that‘s not what this is about.  And you know, Tucker, it‘s very easy to point out what‘s wrong.  She said the Democrat‘s position, essentially, is to say what Bush is doing is not right and he‘s mishandled the war.  These poinsettias behind my head know that Bush mishandled the war.  That‘s very clear.

But what are we going to do about it?  How can the Democratic Party not have an answer to that?  Jack Murtha does.  He stood up and he‘s been counted.  And you know what?  Not only should Democrats do that on principle, but I think it‘s good politics. 

CARLSON:  Yes but—it‘s irrelevant—it may be—hold on.  Slow down.  Slow down, Flavia. 

COLGAN:  It‘s not irrelevant, Tucker.  I‘m a Democrat.  You‘re not. 

I‘m speaking of how (UNINTELLIGIBLE) I am at my own party.

CARLSON:  I‘m merely saying of course it‘s relevant in a policy way, and it may be morally relevant.  But politically, Jack Murtha, a lone congressman from Pennsylvania, can stand up and say what he wants.  It is politically irrelevant unless the party gets behind his position, and it hasn‘t. 

And I fear for you as a Democrat that the Democratic Party is not going to be able take advantage of the president‘s weakness. 

Speaking of the president‘s weakness...

COLGAN:  I agree.

CARLSON:  ... those brothers who started the sensation last year with their JibJab election parody.  I don‘t know if you remember that.  It‘s pretty good.

COLGAN:  Yes.

CARLSON:  At it again.  This time they‘ve got a year-ender with President Bush lamenting the troubles of 2005.  Here‘s a video clip. 

(BEGIN VIDEO CLIP)

(MUSIC)

(END VIDEO CLIP)

(END VIDEO CLIP)

CARLSON:  Pretty amusing and also pretty true.  And here‘s the problem.  This is the picture of every second term of every president.  They‘re all disasters, particularly now, when the American president essentially runs the world or is the closest to a world ruler as we‘re probably ever going to get.  He is beset by problems, some of which are his own making, like Iraq in Bush‘s case.  Some of those aren‘t, like the energy crisis.

And it just seems to me it‘s always going to be considered a failure the second term.  Why run again?

COLGAN:  Tucker, I have to say one thing because I know I‘m going to catch—I‘m going to catch heat from the control room here, because people are going to think I‘m prudish, but I‘m going to say something different. 

I really don‘t find this amusing, and I don‘t whether it‘s because I kind of align with Lincoln‘s view about comedy, which is that it‘s tragedy plus time.  It would be very amusing, just like Mike Brown‘s ridiculous statements about dog sitting and makeup and so forth would be if it weren‘t so tragic.  I mean, these are really serious issues.  And I know you‘re going to think it‘s ridiculous of me to say that.

CARLSON:  Wait, wait.  Slow—slow down a second.  Lincoln‘s view of comedy?  Lincoln, great president.

COLGAN:  I don‘t think it‘s funny. 

CARLSON:  You‘re talking about Abraham Lincoln?

COLGAN:  His quote, Abraham Lincoln.

CARLSON:  Right.  But it‘s comedy.

COLGAN:  He said comedy is tragedy and not enough time.  Not enough time.  I mean, these issues.  When people are dying in Iraq.  When senior citizens can‘t, you know, heat their homes because of the price of gas, I‘m sorry, I guess I‘m the only person in America, but I just don‘t want to see something funny about it right now.  I can tell you, I don‘t find it amusing. 

CARLSON:  A, I think—A, I think you are, in fact, the only person in America who has that view. 

COLGAN:  I know.

CARLSON:  B, I urge you...

COLGAN:  I could be Max Kellerman for the night. 

CARLSON:  ... come around to humor, Flavia.  It helps.  It‘s better than alcohol, and it‘s free. 

COLGAN:  Tucker, Tucker, I make you laugh all the time. 

CARLSON:  Sure you do.  Flavia Colgan from Miami tonight, thanks a lot, Flavia. 

COLGAN:  Thank you.

CARLSON:  Still to come, the school house or the big house?  That‘s the choice young criminals might be facing soon in Chicago, but are they getting off too easy?  We‘ll debate that with “The Outsider,” coming up. 

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

Should anti-smoking busybodies butt out of family life?  That‘s what sensible people are saying in response to new regulations in several states that prohibit parents from smoking around their foster children. 

And that‘s not all.  In the state of Virginia, a judge has barred one divorced mother from smoking around her children as a condition for child visitation.

John Banzhaf is the executive director of Action on Smoking and Health.  He‘s a supporter of the government‘s right to regulate whether you can smoke in your own home.  He joins us tonight from Washington.  Mr.  Banzhaf, thanks for coming on. 

JOHN BANZHAF, EXECUTIVE DIRECTOR, ACTION ON SMOKING AND HEALTH:  Thank

you, Tucker.  I‘m glad we‘re discussing the fact that we‘re finally extending the protection not just to adults but to the most defenseless and the most vulnerable people who are children, and it‘s not just in Virginia.  Hundreds of judges in at least 17 states...

CARLSON:  Right.

BANZHAF:  ... have issued orders prohibiting smoking around children involved in custody. 

CARLSON:  OK.  I guess my question to you is the obvious one, why stop there?  I mean, smoking around children is hardly the worst thing you can do around children.  Not reading to kids, being rude to kids, not teaching them good table manners, allowing them to eat junk food.  I mean, there‘s really no end of bad parenting practices the government ought to get involved with, according to the criteria you‘ve set up. 

BANZHAF:  I haven‘t set out the criteria.  You‘re doing what some lawyers do: you carry any good principle to an illogical extreme. 

There are dozens of reasons why parents lose custody: drinking around children, engaging in sexual activity around children, unsanitary or unhygienic conditions in the home.  We‘re now adding exposing somebody to tobacco smoke. 

And unlike the examples you talked about, second hand tobacco smoke causes hundreds of thousands of asthmatic attacks.  It kills, according to the “American Journal of Pediatrics,” thousands of children every year.  It causes asthma and asthma attacks.  It is a major cause of earaches. 

It‘s not a question of whether somebody is reading to a child.  This is life and death stuff.  This is a carcinogen. 

CARLSON:  Right.  Let—let—it kills thousands of children a year. 

That is totally false, and you know it.  But leaving—look...

BANZHAF:  No, I don‘t. 

CARLSON:  Leaving aside—leaving aside the fact...

BANZHAF:  Why don‘t you look at—why don‘t you read the “Journal of the”—“American Journal of Pediatrics”?

CARLSON:  OK.

BANZHAF:  You will find that thousands of kids die every year from respiratory complications caused by exposure to tobacco smoke. 

CARLSON:  Thousands of kids are dying a year from cigarettes, cigarettes would be illegal.  All of us grew up with parents who smoked.

Here‘s my point.  Once you allow—and there is a principle here and I am taking it to an extreme, but then so are you.  The principle is this.  Government ought to tread as lightly as it possibly can when it regulates the relationship between parents and their children.

And you are essentially—not essentially.  You are quite literally entering in to the final sanctum, the home, and telling parents how to parent.  And you shouldn‘t do that. 

BANZHAF:  Tucker, that‘s nonsense.  In the case of foster children, those children are the wards of the state.  The state makes the basic determinations.  If a foster parent does something, which might harm the child...

CARLSON:  It‘s not just foster children.

BANZHAF:  ... they may lose custody of the child.  In the custody cases...

CARLSON:  I understand.

BANZHAF:  ... you have two parents who are fighting for custody.  A judge has to make a decision between one or the other, and he will make it on the basis of reasoned scientific evidence. 

CARLSON:  OK.  You know very well that this is just one step—if you had come on this show, and I‘ve been on television with you dozens of times, probably...

BANZHAF:  And you always disagree with me. 

CARLSON:  I always disagree.  But in 10 years -- 10 years ago I‘d said to you, John, you know, there is going to come a day when the government will regulate whether you can smoke cigarettes in your own home.  You would say, “You‘re just acting like a lawyer.  You‘re taking it to its illogical extreme or its logical extreme.

BANZHAF:  What I try to do is I debate the topic which is before us. 

CARLSON:  Right.

BANZHAF:  There are—let me tell you this also. 

CARLSON:  My point is...

BANZHAF:  Many judges who have gone after people who smoke in their homes, because that smoke drifts into somebody else‘s apartment. 

CARLSON:  OK.

BANZHAF:  There is no right to smoke.  Every judge that has looked at the issue says there is not a right to smoke.  And yes, we regulate the conduct between children and their parents when it creates a recognized danger.  We‘ve been doing that for 100 years.

CARLSON:  Hold on.  That‘s exactly right.  And by that standard, you‘re wrong, because none of the cases you have cited have shown evidence of the children in question being harmed from cigarette smoke.  You are extrapolating...

(CROSS TALK)

BANZHAF:  ... single one of these cases, sir.  I‘ve been involved in them.  You haven‘t read them. 

CARLSON:  John—John...

BANZHAF:  Yes, there is that evidence.  How else would we be persuading all these judges?

CARLSON:  Because you‘re talking about laws that apply to a population.  Right?  You are saying because some children apparently are hurt by cigarette smoke, no parent under these laws may smoke around in the house while these foster children are there, without showing that the children have, in fact, been harmed by it.  Look, my only point is...

BANZHAF:  Three different states have made that determination. 

CARLSON:  OK.

BANZHAF:  Another half dozen are about to do it.  They‘re doing it based upon sound scientific evidence which you apparently are ignorant of. 

CARLSON:  Nobody is for cigarette smoking and nobody is for harming children, particularly those of us who have children.  The point is this is a very steep—this is a very steep and very slippery slope.

BANZHAF:  Would you like to expose your child to asbestos or benzene or polyvinyl?

CARLSON:  Give me a break.  You are—you are allowing government to control what happens in your own home. 

BANZHAF:  For 100 years, there have been cases.

CARLSON:  And I‘m telling you, when they start saying, John, that some of your favorite habits are illegal, you‘re going to rule the day. 

BANZHAF:  Tucker, we‘ve done 100 years in child custody and foster care cases.  Welcome to the 20th Century.  Maybe once day you get in the 21st

CARLSON:  This will be used as a justification to regulate private sexual activity.  Or eating habits.  To regulate just about everything people do in home.

BANZHAF:  Why are people arguing about things that we‘re not discussing?

CARLSON:  I can‘t talk over you, John.  I have to end it there.

BANZHAF:  OK.

CARLSON:  But I appreciate you coming on.

BANZHAF:  We‘re winning.  We‘re winning, Tucker.

CARLSON:  It‘s a shame you are.  This country is not becoming a better place through your efforts.

BANZHAF:  If you disagree, let‘s hear your arguments before somebody (ph). 

CARLSON:  OK.

BANZHAF:  All right.

CARLSON:  I‘m never going to fight with you.  All right.  Thank you, John Banzhaf from Washington.  Still to come, why the government is growing marijuana.  It is and why some people say pot with the DEA seal of  Approval not strong enough.  Details when THE SITUATION returns.

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  Great 18th Century philosopher Edmund Burke once said he who wrestles with us sharpens our nerves and sharpens our skills.  Our antagonist is our helper.

Joining us now, a man who is both an antagonist and a helper to the show, I would say, “The Outsider,” Max Kellerman from ESPN Radio an HBO Boxing, joining us tonight from Las Vegas—Max. 

MAX KELLERMAN, ESPN RADIO:  Well, if antagonism is helpful, I plan on being extremely helpful tonight, Tucker. 

CARLSON:  You‘re getting the Nobel Peace Prize, Max.  That‘s true.  

I‘m not sure it‘s exactly true.

All right.  First up, speaking of someone who‘s antagonistic, Vicente Fox, president of Mexico, sounding off about a proposal to string a wall between the two countries.  The Mexican president was responding to that proposal in a speech just across the border from the United States and Texas. 

He said, quote, “The disgraceful and shameful construction of walls, the increasing enforcement of security systems and increasing violation of human rights and labor rights will not protect the economy of the United States, as if Vicente Fox cares even a tiny bit about the economy of the United States or the security of the United States, the well-being of the United States.  Anything about the United States. 

President Fox is not acting like our ally; he‘s acting like our enemy.  He‘s encourage his countrymen, for whom he‘s responsible, to violate U.S.  law.  He is in no way an ally of this country.  I think we should just say so out loud, “Vicente Fox opposes the United States,” because he does. 

KELLERMAN:  I think even better than that would be throwing stuff back at him.  Why are we always on the defensive?  Now we have to defend the idea of building a wall, which is really none of his business. 

A better tactic, I think, throw it right back at him.  Excuse me.  Is the president of Mexico talking about labor and human rights record in the United States? 

CARLSON:  Exactly.

KELLERMAN:  Are you sure you want to do that?  People in glass houses should not be throwing stones, Tucker. 

CARLSON:  That‘s actually exactly right.  I‘m not even sure we disagree on this point, Max.  It‘s so offensive, but I think—I think we ought to begin the conversation by being completely honest and by saying the following: Mexico supports illegal immigration to the United States because Mexico would collapse without that illegal immigration to the United States, because Mexico is such a poorly run kleptocracy that it can‘t sustain itself.  That‘s the truth.

KELLERMAN:  Although—although to play devil‘s advocate, the country argument is the United States economy is also somewhat reliant on cheap Mexican labor.

CARLSON:  That‘s true.

KELLERMAN:  They come in and do jobs that Americans—native born Americans won‘t do.  So the reverse argument could be made in that case.  I really think the best tactic with the president—with Fox, president of Mexico, is just, every—I‘m rubber, you‘re glue.  You want—let‘s talk about human rights records. 

CARLSON:  That‘s right.

KELLERMAN:  Let‘s talk about labor rights records of both of our countries.  Why is your country men filing, you know, by hook or by hook, trying to get over the border into our country.  There‘s a reason for that.

CARLSON:  Well, I‘ll tell you why we won‘t say that, because the Bush administration is too cowardly to tell the truth about the leadership of the country of Mexico, unfortunately.  They‘ll never, ever, ever say that, and they ought to.        

All right.  A Chicago lawmaker wants to give young criminals a get out of jail free card if they agree—here‘s the catch—to go back to high school.  Alderman Ed Smith has introduced a proposal that would allow anyone younger than 19 who has not finished high school and has been arrested for nonviolent crimes to go back to school instead of joining to jail.  The idea it to keep teens from getting a permanent criminal record.

And I actually like the idea, but I think the means are flawed.  Going to school, especially if you‘re 18 years old, is not the answer.  Get a job.  Do something useful.  Don‘t remain on the dole, essentially.  Right?  Take responsibility for yourself. 

Nothing changes a person‘s outlook on the world, on life, about himself like working.  And these are kids who presumably have been to school already and they still wound up entangled with the criminal justice system.  They ought to get to work. 

KELLERMAN:  OK, well, the devil‘s advocate position is easy here, Tucker, because in the first place, levels of income are correlated with levels of education. 

CARLSON:  Yes.

KELLERMAN:  And these are apparently not educated kids.  Right?  They haven‘t finished high school. 

Secondly, if you‘re—if you‘re worried about a kind of a welfare state, creating spaces in classrooms for criminals, I mean it‘s harder to say go get a job.  So what‘s the alternative?  The government coming up with government jobs for these kids?  It‘s much more expensive to do that. 

CARLSON:  Wait, wait, wait.  Wait a second, wait a second.  I thought you said moments ago that there were all these jobs that native-born Americans didn‘t want to take, because they‘re too lazy or they find the jobs distasteful or for whatever reason.  There are jobs right there. 

KELLERMAN:  There‘s a minimum wage issue, though, Tucker.

CARLSON:  But hold-on, Mexican immigrants do it.  Why can‘t 18-year-old Americans do it?  Of course you can.

And look, there is a correlation between education and achievement in income.  But it‘s not necessarily a causal relationship.  In other words, one doesn‘t necessarily cause the other.  People who succeed in school are motivated, right?  And the people who fail in school fail for their own reason.  The point is that school itself does not motivate people to succeed. 

KELLERMAN:  But if the alternative is prison, now you have all the motivation you need.  And furthermore, what‘s the idea—these are nonviolent criminals.  Nonviolent criminals.  So you‘re giving them motivation.  And what‘s the idea of a justice system anyway?  Is it just punitive? 

Well, ideally, you don‘t want recidivism.  You want to rehabilitate.  And when the alternative is prison, then school seems like a very good idea.  An inexpensive, smart, good idea that will push these people in the right direction. 

CARLSON:  Look, I‘m for this idea, as I said.  Alternatives to prison are excellent for nonviolent offenders.  I completely agree with that.  I‘m just saying that going to school doesn‘t build your self-confidence and your self-respect, because you know it‘s mostly a joke. 

Having a job and working for your pay makes you feel good about yourself, makes you feel like a man, right?

KELLERMAN:  Tucker, I didn‘t—I didn‘t like my teachers any more than you liked yours.  But no, school is good for these kids if they haven‘t graduated high school. 

CARLSON:  I disagree.  And I‘m sure we‘ll get a lot of hate mail. 

But...

KELLERMAN:  I did name a cat of mine, by the way, after my fifth grade teacher, Mr. Goldstein, when I was a kid.  So maybe I did like my teachers. 

CARLSON:  I don‘t even want to know what happened to the cat.

Max Kellerman, in Las Vegas.  Good luck tonight gambling, Max.

KELLERMAN:  Thank you, sir.

CARLSON:  Well, there is still plenty more ahead tonight on THE

SITUATION.

(BEGIN VIDEOTAPE)

CARLSON (voice-over):  Federal smoke screen.  A marijuana expert blows the lid off government-grown weed. 

JIM CARREY, ACTOR:  Smoking!

CARLSON:  Then something‘s fishy in Japan.  We‘ll show you why some penguins there are coming down with the case of cold feet. 

Plus, you make the call.  One viewer‘s futile campaign to improve relations with our neighbors in the north. 

UNIDENTIFIED MALE:  I guess I‘m just a retarded Canadian.

CARLSON:  And which of these news makers will be this week‘s lucky recipient of the coveted Human and Non-Human SITUATION Achievement Awards?  It‘s all ahead on THE SITUATION. 

(COMMERCIAL BREAK)

VANESSA MCDONALD, SITUATION PRODUCER:  Coming up, the federal government has a monopoly on medical marijuana.  Should the market be opened to private pot dealers in the name of fair competition?

CARLSON:  My next guest thinks so, and he‘s fighting to become one of them.  You‘ll meet him in 60 seconds.

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

Quick quiz.  Who‘s the biggest single pot dealer in America?  Give up? 

It‘s the U.S. government. 

Yes, the feds hand out a lot of weed, but it turns out their stuff is week.  My next guest is a professor at the University of Massachusetts in Amherst.  He‘s petitioning the DEA for a permit to grow his own pot for research, because the pot he gets from the government is so bad. 

Professor Lyle Craker joins us from Amherst, Massachusetts, tonight. 

Professor Craker, thanks for coming on. 

PROF. LYLE CRAKER, UNIVERSITY OF MASSACHUSETTS:  No problem.  Happy to be here.

CARLSON:  Why is government pot so weak and how do you know it‘s so weak?  How do you—no offense, but to be honest, how do you test its weakness?

CRAKER:  No offense, but we don‘t want to call it pot.  We‘re talking about medical marijuana, not the recreational drug. 

CARLSON:  What‘s the difference?

CRAKER:  Well, the difference is in the application.  What we‘re talking about is medical marijuana...

CARLSON:  The plant is the same, right?

CRAKER:  We‘re using the same plant, yes. 

CARLSON:  So there‘s no difference.

CRAKER:  We‘re talking about a—there‘s no difference in the plant, but a different application and it goes by a different name. 

CARLSON:  OK.

CRAKER:  So when we talk about this, pothead is a connotation of recreational use and we‘re not talking about recreational use.  We‘re talking about using this plant material to help people feel better. 

CARLSON:  OK.  I think that‘s why people use it recreationally, too. 

CRAKER:  Yes.  They use it recreationally to, quote, “get high.”  And what we‘re talking about is for people using medical marijuana to relieve their pain and suffering. 

CARLSON:  So the cannabis, or the marijuana that the federal government grows has lower concentration of THC in it?  That‘s why it is not so potent?

CRAKER:  Well, the government grows lots of different types of marijuana.  I‘m sure they have some of all grades.  The problem is that for clinical trials, what they have been supplying to the medical community is a low potency. 

Seems to me back yard marijuana growers or medical marijuana growers have done a better job at growing marijuana than the government has, is that true?

CRAKER:  I think the government can grow—I know the researchers that grow the marijuana for the government.  They can do a good job.  But the government, I think, wants a low potency material because they‘re terrified that it might reach the recreational market. 

There‘s already a lot of it out there.  What kind of research do you do with marijuana?

CRAKER:  Well, I don‘t do any research with marijuana.  What we want to do is to be able to produce some marijuana so that we can supply medical doctors with marijuana of good quality for clinical trials. 

CARLSON:  Clinical trials of what?  I mean, what sort of...

CRAKER:  Clinical trials of marijuana to see the—if it has medical benefits to different types of illness. 

We know that medical marijuana is reported to help with glaucoma.  But we need clinical trials to prove that one way or another.  It‘s touted to relieve pain and suffering of people that are handicapped and in wheelchairs.  And we need to have that tested. 

But these type of clinical trials have not been run, because the medical marijuana has got confused with the pot you‘re referring to, and the government has not allowed the appropriate clinical trials to occur. 

CARLSON:  Then why don‘t the researchers buy potent marijuana?  I mean, you can buy it anywhere. 

CRAKER:  Well, you can maybe buy it on the street, but again, you do not know the bioactive content of that material.  What we want to do is produce some standardize material that has a norm level of bioactivity, so the clinical trials will be meaningful. 

CARLSON:  Do you ever sample medical marijuana?  And do you think ordinary people who aren‘t sick out to be able to?

CRAKER:  I‘ve never sampled marijuana and I think that—I‘m not going to recommend that anyone break the laws of the United States.  But certainly, I have heard from people that are using marijuana for medical purposes. 

CARLSON:  And they report back good results?

CRAKER:  They report back good results.  That‘s correct.  They talk about relief of suffering.  And I think that we should always be willing to help people that are suffering from various ailments. 

CARLSON:  I agree with that.

CRAKER:  I don‘t think...

CARLSON:  Sorry to cut you off.  Tell me. 

CRAKER:  I don‘t look at medical marijuana as any different than any other plant material that we look at for medical purposes. 

CARLSON:  Yes, well, the federal government disagrees, as you know. 

Mr. Craker, thanks a lot for joining us tonight.  We appreciate it. 

CRAKER:  No problem.  Thank you.

Coming up, Howard FCC said good-bye to old-fashioned radio.  Did he have any parting shots for his old friends at the FCC on his way out the door?  We‘ll tell you when THE SITUATION returns. 

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  Most shows claim they want to hear what you think but they don‘t really mean it.  They don‘t play your voice mails on the air.  We do.

First up. 

(BEGIN AUDIO CLIP)

UNIDENTIFIED ALE:  This is Peter from Greenwich, Connecticut.  The Canadians only have dog sleds up in Canada.  But we also have a lot of oil.  Maybe we should turn it off for the next couple of months.  Then you‘ll warm up to my country, but I guess I‘m just a retarded Canadian. 

(END AUDIO CLIP)

Yes, you sound like a retarded Canadian, Peter.  I don‘t know what you‘re doing on Greenwich.  Go back up north.  If you‘ve got so much oil, why are you still riding dog sleds?  And if you have the oil and you turn off the spigot, we‘ll invade you so fast your dog sleds won‘t know what hit them.  Just don‘t. 

Next up. 

(BEGIN AUDIO CLIP)

UNIDENTIFIED FEMALE:  This is Nadia from Texas.  I don‘t believe in the death penalty.  I think that‘s letting them off too easy.  I would rather like to see them be whipped, burned.  Torture them; don‘t let them off easy.  I‘d rather see them be crucified.  They shouldn‘t get off easy.  I don‘t believe in the death penalty.  It‘s just too simple. 

(END AUDIO CLIP)

CARLSON:  You know, when the American Indians captured prisoners of war they really despised, they turned them over to the squaws.  I can see why.  Boy, Nadia.  It‘s good for our criminals you‘re not in charge. 

Next up. 

(BEGIN AUDIO CLIP)

UNIDENTIFIED FEMALE:  Stacy from Dallas.  I‘d just like to say (ph) Frank Rich.  And I just think it‘s really sad.  Any grown man who writes about how to vomit when you‘re drunk and how to act when you‘re drunk I think is in need of serious help.  As a recovering alcoholic, I just found it kind of bizarre. 

(END AUDIO CLIP

CARLSON:  I sort of agree with you.  I mean, most adults who drink to the point where they throw up quite a bit and can‘t walk and can‘t speak probably do have a problem.  But you know, you define a problem by something that is affecting your ability to be happy and have normal relationships with other people. 

And I have to say, Frank Rich who we had on last night, seemed like the happiest alcoholic I‘ve ever met.  So maybe you know something we don‘t.  I don‘t know.  I‘ll give him the benefit of the doubt. 

We want to know what you‘re thinking.  Call 1-877-TCARLSON.  That‘s 877-922-7576.  You can also e-mail to Tucker@MSNBC.com.  If you‘re Canadian, go ahead and send that e-mail.

You can also read our blog.  Tucker.MSNBC.com is the address.

Still ahead on THE SITUATION, are these pudgy penguins just out for an afternoon waddle or is this their idea of exercise?  Workout with the penguins when they march onto the “Cutting Room Floor,” next.

(COMMERCIAL BREAK)

CARLSON:  All right. Just when you thought it couldn‘t get any better, Willie drops by with a piping hot stack of stories from the “Cutting Room Floor”—Willie. 

WILLIE GEIST, PRODUCER:  Oh, Canada. 

CARLSON:  Oh, Canada.

GEIST:  Oh, Canada.

CARLSON:  I say this every night.  I love Canada, honestly, and the people of Canada I think are so sweet.  And I mean that.  They are.  Need a little discipline from time to time, but fundamentally good people. 

GEIST:  Right.

CARLSON:  I do think that.

GEIST:  Sounds like you like them the way you‘ve been talking about them the last couple nights. 

CARLSON:  We‘re here—look, it‘s not easy being dad to a little country like Canada. 

GEIST:  I want to say for the record, I stand up for Canada and I actually did so on the Internet today. 

CARLSON:  Yes, I know you did.

GEIST:  Check it out on the website, because... 

CARLSON:  Willie‘s got a column defending Canada, I guess, from me. 

GEIST:  Somebody has to.

CARLSON:  For 20 years the FCC has been looking for ways to yank Howard FCC off the radio.  Today, Howard did it for them.  He signed off terrestrial radio for the last time this morning.  Stern held a rally for thousands of his fans in New York City after the show.  He‘s now headed for satellite radio, where he‘s free to broadcast all the lesbian midget wrestling he wants to.  Stern signed a five year, $500 million contract with Sirius Satellite Radio. 

GEIST:  That will take care of the bills for a few years I think.  You know, a lot of people are offended and don‘t like him, but I have to say, I grew up in the New York area.  Listened to him almost every morning.  I‘ll follow him wherever he may go.  I know you just got Sirius radio.  So I‘ll be listening.

CARLSON:  I thought his rant today was not very amusing. 

GEIST:  No.

CARLSON:  He‘s better when he sticks with the midget lesbian mud wrestlers, and he‘s bad when he gets onto the macro stuff about free speech.  It‘s just stupid. 

GEIST:  Yes.  But if you can get past the stripper JELL-O wrestling, there is a certain genius there.

CARLSON:  I think the stripper JELL-O wrestling is genius.

GEIST:  Oh, that is genius.  I see.

CARLSON:  With the price of gym memberships and home fitness equipment these days, some people and some animals have to get in shape the old-fashioned way, by pounding the pavement.  Take these fat penguins, for example.  They‘d be the first to admit they‘ve put on a couple of pounds this year, so now they‘re doing something about it.  They go on 500-yard calorie burning walks every day. 

GEIST:  You‘re not going to see results real quickly if that‘s the extent of the workout there.  Maybe you want to mix in some elliptical or something.  It‘s just not going to get the job done. 

CARLSON:  If they get thin, would they freeze to death?

GEIST:  Yes, probably.  I‘m not an expert on the subject.            

Isn‘t there—there‘s something odd.  Why do I like watching penguins watch so much?

CARLSON:  I know.  I do, too.

GEIST:  Not in a weird way.  I just enjoy it.

CARLSON:  No, no.  It‘s like a wholesome porn.

GEIST:  Yes.

CARLSON:  Japan is producing robots at an alarming rate these days.  The latest was introduced by Sony in Tokyo today.  It‘s called Curio.  It is a face identifying camera that allows it to react to people‘s movements.  Curio‘s designers say the robot is the first in a generation of droids that will be able to perform tasks given to them by humans. 

GEIST:  As you know, Tucker, I have been real hard on the robot community, and I don‘t want to belabor this point, but a robot that can dance is not progress.  Technology for its own sake is wrong.  Technology for my sake to make life easier, shouldn‘t that be the point of robots. 

CARLSON:  Next time you‘re looking for someone to dance with, you‘ll eat those words. 

GEIST:  Yes.  I hope you‘re wrong.

CARLSON:  Better than nothing.

It‘s time to crown our human and nonhuman of the week.  First the human.

Police were called to this man‘s Lubbock, Texas, home after he allegedly stabbed his friend in a dispute over a hotly contested board game.  As the cops were arresting the man, he attempted a daring and moronic escape.  His plan was quickly foiled by a taser gun, shown here.  The shirtless guy who stabbed his friend over a board game and then tried to run the police over, he is our human of the week. 

GEIST:  You know, Tucker, sometimes you watch “COPS,” and you say, “This has to be staged.  This can‘t be happening in this country.”  And then you see the guy, the shirtless guy who stabbed his friend over a game of Chutes and Ladders and then tried to get away, and you‘re reminded what makes this country so great. 

CARLSON:  They are tasering him too much.

GEIST:  Yes.

CARLSON:  I‘m sure to be the ACLU board member, but that‘s too much tasering.

GEIST:  He wasn‘t going anywhere.  Just let him go a little bit.

CARLSON:  Yes, exactly right.

We don‘t condone the lifestyle of our nonhuman of the week.  We just report on it.  This owl smokes marijuana.  A Florida family found the bird in their Christmas tree when they were decorating it this week.  The owl was apparently in the tree when it was cut down.  When animal control showed up, they noticed the bird smelled like pot.  The officers gave the owl a drug test.  And sure enough, he was as high as a bat. 

GEIST:  Serendipity here, Tucker.  The owl should hook Professor Craker up with his guy, because I know Professor Craker is—by the way, he talks all academic about weed.  He downed a bag of fungis right before he came on, trust me.

CARLSON:  Very good.  Willie Geist, have a good weekend.

GEIST:  You too, Tucker.

CARLSON:  Thanks for watching.   “COUNTDOWN WITH KEITH” up next.  Have a great weekend.

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

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