updated 12/20/2005 2:36:44 PM ET 2005-12-20T19:36:44

Guests: Condoleezza Rice, Dianne Feinstein, John Harwood, Tony Blankley

ANDREA MITCHELL, GUEST HOST:  Tonight, Secretary of State Condoleezza Rice defends a secret program to eavesdrop on Americans.  And President Bush says he‘ll keep it in place as long as America faces a terrorist threat.  Let‘s play HARDBALL.

Good evening.  I‘m Andrea Mitchell, tonight in for Chris Matthews. 

President Bush vigorously defended the National Security Agency‘s secret plan to spy on people inside America without the approval of the courts, saying it is a crucial tool to fight terrorists. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I‘ve reauthorized this program more than 30 times since September the 11th attacks, and I intend to do so for so long as our nation is—for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens. 

(END VIDEO CLIP)

MITCHELL:  The secret domestic spying program has caused an uproar in Congress, with both Democrats and Republicans now calling for hearings.  We‘ll talk to Senator Dianne Feinstein, Democratic member of the Senate Intelligence Committee, later in the show. 

And why did the “New York Times” wait a year before breaking the domestic spying story?  Why did it run the day after successful elections in Iraq? 

We‘ll begin tonight, though, with one of President Bush‘ most trusted advisers, Secretary of State Condoleezza Rice.  I asked her to defend the administration‘s secret eavesdropping program. 

(BEGIN VIDEOTAPE)

MITCHELL:  Madam Secretary, welcome.  And thank you very much for doing this today. 

CONDOLEEZZA RICE, U.S. SECRETARY OF STATE:  Glad to do it, Andrea. 

MITCHELL:  We‘ve heard so much from the president, from you, from others in the administration defending the eavesdropping on Americans.  Why was it necessary to do this without going to the court, when the court is available?  And what we‘ve seen in the past couple of years since 9/11 is that there have been more than 4,900 applications to this court and only four have ever been rejected. 

RICE:  Well, first let me just state what it is the president authorized.  He authorized the National Security Agency to collect information in a very limited fashion on the activities of people who have links to Al Qaeda and how those links might be communicated to people who are terrorists and involved in terrorist plotting abroad. 

This is about the geographic territory of the United States and not allowing American territory to be a safe haven for conversations between people with terrorist links here and terrorists abroad. 

It‘s the kind of gap between our domestic territory and foreign territory that was cited so often in the September 11th commission, where we understood that our intelligence agencies were looking outward, our law enforcement agencies were looking inward, and there was no way to close the gap between them. 

Now, the president used authorities that are granted to him by the Constitution, in Article II, and other statutory authorities.  I think the attorney general spoke to these authorities earlier, and so did the president. 

The need to do this is because of the different nature of these people and their communication.  Without getting into the program, which we still want to protect, this is a—these are agile communicators and we have to be more agile. 

The FISA Act, the Foreign Intelligence Surveillance Act, 1978, under very different circumstances, against more stable targets, longer term monitoring, and it‘s a difference between the need for monitoring the difference—monitoring and detection. 

MITCHELL:  But you said “limited” just now.  You said it was not very extensive.  But the actual number is 4,713 applications between 2002 and 2004.  That doesn‘t sound very limited. 

And the judge involved, who was appointed to this post by the late Chief Justice Rehnquist—no bleeding heart liberal, this person—she has only denied four requests and modified one.  So what—first of all, that doesn‘t sound very limited. 

RICE:  But, Andrea, I‘m not talking about the number of applications to FISA when I talk about limited.  I‘m talking about the nature of this program that the president authorized.  And there, this is a program that is very carefully controlled.  It is reviewed constantly. 

MITCHELL:  But all by in-house lawyers. 

RICE:  Well, it‘s reviewed by the lawyers at the National Security Agency.  It‘s reviewed by their inspector general, reviewed by Justice Department lawyers and, by the way, briefed to leadership in the Congress and, in particular, the leadership of the Intelligence Committees. 

MITCHELL:  Of course, those who objected, such as Senator Rockefeller, by reports, couldn‘t object publicly without breaking a law.  So they couldn‘t really...

RICE:  Well, this was briefed more than a dozen times, more than a dozen times.  And so I think there is an issue—I‘m not going to get into questions of what people are saying about those conversations.  But it was briefed more than a dozen times. 

And the need for this program, I think, is clear.  The president has certain responsibilities as commander-in-chief to protect the country.  He also has certain responsibilities to protect the civil liberties of Americans.  Those are his constitutional duties, and he‘s performing both. 

MITCHELL:  Now, you were National Security Adviser at the time.  What was your lawyer at the National Security Council telling you, in terms of whether or not this was legal? 

RICE:  Well, Andrea, I‘m not going to go into internal deliberations.  It was a carefully considered decision.  And the attorney general has spoken to the legal authorities under which this takes place. 

MITCHELL:  How does this affect you as America‘s chief diplomat?  You had difficulties in Europe defending U.S. position regarding the allegations of secret prisons in Eastern Europe.  How does this affect our reputation overseas? 

RICE:  I think that people understand that America is a country of laws.  It is a country that defends and protects those laws.  This is an issue of the president‘s constitutional authority as the president of the United States. 

And so it is appropriate that it is something that is spoken to by the attorney general and to a degree that needs to be spoken to by people who are asking questions in Congress. 

But in terms of our reputation abroad, I don‘t think there is any doubt that America is viewed as a country of laws.  When I left Europe, we had any number of foreign ministers saying that they understood better what we were saying.  Perhaps they didn‘t like every answer, but we‘re in a different kind of war. 

And people have to understand that the president has a very strong belief in and obligation to protect our civil liberties and our civil rights.  He also has a very strong obligation to protect us as a country.  And unless you can detect terrorist blocs—you know, intelligence is the long pole in the tent in the fight against terrorism, because once you‘ve allowed somebody to commit the crime, then thousands of people have died. 

This is not traditional law enforcement.  This is not even traditional intelligence.  This is detection of activity in a very rapid way against shadowy networks that cross our domestic and foreign boundaries. 

MITCHELL:  Do you have any concerns, personal concerns, about this becoming a slippery slope?  Once you expand presidential authority, whether it‘s over domestic eavesdropping or secret prisons, that we‘re getting into an area that is potentially dangerous for this country, long term? 

RICE:  Well, first of all, I don‘t want to speak to specific intelligence issues, but I do want to speak to the need to remember that, on September 11th, we were both blind inside the country and we were deaf inside the country.  And that couldn‘t be allowed to continue. 

If the United States is going to be protected from terrorists who know no boundaries, then it‘s necessary for the president to use his powers, his authorities under the Constitution and to use them legally.  But I think the American people would expect the president to do everything that he can within the law to protect us. 

The president understands—and I understand—that we are a country of laws.  We are a country that is particularly concerned with our civil liberties.  They‘re enumerated in ways that they‘re not for many countries in our Constitution.  They‘re the core of who we are.  And the president is both going to protect us in—physically, and protect our civil liberties. 

MITCHELL:  There‘s a new report today of eight prisoners at Guantanamo who say that they were held in a secret prison in Afghanistan and physically abused.  They claimed it was torture.  They said that they were beaten.  They were denied food and water.  And this has been substantiated by a human rights group. 

RICE:  Well, any such claims are always investigated.  And I will say that there are often lots of things are said, lots of things are thrown around.  They‘re thrown around often without evidence. 

If there is evidence, I would encourage it to—encourages people to get in touch with those who can investigate it.  There also have been repeated visits of international groups to Guantanamo to look at the conditions there.  The fact is that...

MITCHELL:  But this was the—this complaint was that they were held in Afghanistan, where there were no Red Cross...

RICE:  Well, Andrea, let‘s be realistic here.  We have a choice.  We pick up people on the battlefield clearly engaged in activities against either American forces, or terrorist activities, or with links to terrorist organizations.  We can either hold them or we can let them go. 

Eventually, they will be brought to justice.  But I don‘t think anybody expects us to simply release terrorists into—people who we‘ve encountered on the battlefield in places like Afghanistan, just release them into the general population.  It makes no sense. 

And, in fact, we have released some people from Guantanamo who we‘ve met again on the battlefield.  We‘ve tried to release as many people as possible.  And when there have been cases where we felt that there was—that no reason to any longer hold people, they‘ve been released.  Sometimes they‘ve been released into the custody of home governments.  Sometimes they‘ve been released more in general. 

But there are dilemmas here.  And these are not easy answers.  And it‘s facile to say, “Well, you should just let them go.”  But this president has a responsibility to protect the American people, to protect our allies.  And I would ask any who are concerned about detention at a place like Guantanamo, whether they would rather have dangerous people released into their midst. 

(END VIDEOTAPE)

MITCHELL:  I‘ll be back in a minute with Secretary of State Condoleezza Rice.

And later, reaction from Congress to President Bush‘s authorization to allow domestic surveillance without court approval.  Senator Dianne Feinstein of the Intelligence Committee will be here.

This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL.  More now of my interview today with Secretary of State Condoleezza Rice. 

I asked Secretary Rice about the release of some top officials from Saddam Hussein‘s government, including “Dr. Germ” and “Mrs. Anthrax,” two female scientists who we were told were deeply involved in Iraq‘s secret biological warfare program. 

(BEGIN VIDEOTAPE)

RICE:  The Iraqis have a process that is, I think, a fair process for bringing to justice those against whom they have evidence.  And I don‘t know the details of these cases at this point, but it does show that the process that the Iraqis are going through is one that is a process that tries to do justice.  And the interesting thing is that under Saddam Hussein, of course, there was not even a pretense of a system of justice. 

MITCHELL:  Do you have any regrets, personal regrets, about some of the rhetoric that you and others in the administration used about mushroom clouds and other rather frightening suggestions of weapons of mass destruction now that we know that there were no weapons of mass destruction in Iraq? 

RICE:  Well, first of all, weapons of mass destruction are frightening.  And they‘re frightening particularly in the hands of a tyrant.  And they‘re frightening when the international community can‘t get answers from a tyrant like Saddam Hussein. 

MITCHELL:  It was the predicate for war.

RICE:  But it was also the belief of intelligence agencies around the world, the U.N. Security Council that kept asking Saddam Hussein to answer for large stores of unaccounted-for weapons materials. 

And so, Andrea, the fact of the matter is that what you say—what you know today can affect what you do tomorrow.  It can‘t affect what you do yesterday. 

(CROSSTALK)

RICE:  And what we know today is simply the case that perhaps he did not have the stocks of weapons of mass destruction that we thought he had.  But was he a threat?  Absolutely, he was a threat. 

This was someone who had used weapons of mass destruction in the past.  This was someone who was filling his own country with mass graves with his own people.  This was someone who was flying, shooting at our aircraft, trying to fly no-fly zones to keep his forces under control, someone paying suicide bombers who committed atrocities against Israel. 

This was a threatening presence in the most volatile region in the world.  And after 17 resolutions and time and time again, it was time to take care of him. 

MITCHELL:  Your predecessor, Colin Powell, said that his presentation to the U.N., he now feels, is a blot on his record of public service and also that he felt that, in retrospect, Dick Cheney and Don Rumsfeld were going to the president behind his back.  Do you feel that there was a...

RICE:  I don‘t—I actually don‘t know. 

MITCHELL:  ... deliberate attempt to mislead?

RICE:  I don‘t know to what Secretary Powell is referring.  Colin and I are very good friends.  And I think he was a terrific secretary of state.  I think he had an excellent relationship with the president.  I think he had access to the president whenever he wanted access to the president.  And on all decisions of any import, the president heard the views of everybody who had a view. 

MITCHELL:  Carl Levin said—the member of the Armed Services Committee said to Tim Russert that if the Sunnis and the Shiites cannot work out their problems, we need to pressure them, that the U.S. now needs to really put pressure on the Iraqis to get this political process, now that they‘ve successfully had this extraordinary election. 

How much pressure should the U.S. put on the Iraqis to come together and fix their constitution and make the other tough political decisions they need to make? 

RICE:  Well, of course, it has to be an Iraqi process.  And I think there‘s a presumption in the question that we somehow more want a working Iraq, an effective government, than the Iraqis do.  I think they actually want an effective government. 

I think they understand that they need to overcome their sectarian differences.  I hear one voice talking about civil war.  That‘s Zarqawi.  I hear most Iraqis talking about trying to form a unified Iraq on the basis of democratic principles where all of their interests can be represented. 

Our ambassador, Zal Khalilzad, has excellent relations with the Iraqis.  He‘s been very engaged.  He was very engaged at the time of the writing of the constitution.  He‘ll be very engaged now in helping them. 

But it is also an Iraqi process.  And that‘s the whole point of democracy, is that people have to come to terms.  I think they will. 

MITCHELL:  How big a threat is Iran, especially with the new Iranian president saying that Israel should be wiped off the map and that there was no Holocaust, denying the Holocaust? 

RICE:  I don‘t think there is any doubt that this Iranian president has sharpened the contradictions greatly.  He‘s made it very clear that whatever was once a face of Iran that perhaps looked more diplomatic perhaps is not what the Iranian regime is really all about.  These are outrageous statements, and they‘re dangerous statements.  They‘re dangerous...

MITCHELL:  Will they help you persuade the Europeans to side with us against Iran? 

RICE:  I think people—I think people are clearly starting to see that it is outrageous for the president of Iran to say these things with one breath and, on the other breath, to say that the world can trust Iran with technologies that will lead to a nuclear weapon. 

And the Iranians, of course, there‘s a nuclear issue.  We‘re working with the E.U.-3.  But there‘s also Iranian support for terrorism in the Palestinian territories with Hezbollah.  There is the decision or the ability of an unaccounted few—unaccountable few inside Iran to repress and frustrate the desires of its own people.

The Middle East that Iran wants and apparently is prepared to work for is fundamentally different than the Middle East that is emerging and certainly one that is at odds with American interests. 

MITCHELL:  Now, I know you have repeatedly denied any interest in national office and running for national office.  You‘ve said you wanted to at best be NFL commissioner after you resume your academic career.  You accurately predicted Redskins over Dallas.  Do you want to predict Redskins over the Giants next week? 

RICE:  I‘ll see how it‘s going closer to the time.  I‘ll get back to you. 

(LAUGHTER)

MITCHELL:  OK.  Thank you very much, Madam Secretary. 

RICE:  Thank you, Andrea.

(END VIDEOTAPE)

MITCHELL:  Well, perhaps we can turn her into a Redskins fan. 

Up next, congressional reaction to the president‘s authorization to allow domestic surveillance without court approval.  Senator Dianne Feinstein will be here.  You are watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  Welcome back.

For more on President Bush‘s position on domestic spying and an update on the Patriot Act vote, we turn to Democratic Senator Dianne Feinstein, who sits on the Senate Select Committee on Intelligence. 

Good evening, Senator.  Thank you very much for being with us. 

SEN. DIANNE FEINSTEIN (D), CALIFORNIA:  Hello.  Thank you. 

MITCHELL:  Senator, what do you think?  The president very forcefully argued today that he has the law on his side.  Does he? 

FEINSTEIN:  Well, let‘s talk about this.  Let‘s talk about, first of all, the oversight issue.  I listened carefully to what the secretary of state said, and I most profoundly disagree with her. 

We amended the National Security Act in December of 2001 to provide a methodology for the reporting of sensitive intelligence activities to the intelligence committee, outside of covert activities.  And we said they must be in writing and they must be succinct. 

In no way, shape or form does taking eight members out of 535 and saying, “Ladies and gentlemen, this is what I‘m going to do,” does that satisfy the oversight responsibility of the Congress.  I think it is a substantial overreach, and it‘s a very serious concern to us. 

MITCHELL:  Is it a violation of the law?  The president says he has the Constitution, Article II of the Constitution, where he preserves and protects the United States and U.S. citizens as commander-in-chief and he also has the authorization, the military authorization vote, on his side post-9/11. 

FEINSTEIN:  Well...

MITCHELL:  Does that give him enough legal authority? 

FEINSTEIN:  ... I can tell you this.  I can tell that you the intent behind the authorization of use of force resolution was not “open sesame” on electronic surveillance of Americans, certainly.  And with respect to electronic surveillance, there is an authority which is exclusive, and that‘s the Foreign Intelligence Surveillance Act, known as FISA. 

And in that act, in Section 111, is a provision for an emergency action.  And it‘s retroactive.  And what it says is that the attorney general may approve an emergency electronic surveillance request if he goes before the FISA court within 72 hours. 

So there FISA can move just as fast as is required...

MITCHELL:  Some may make the case...

FEINSTEIN:  ... so I don‘t understand why they would not have gone or allowed the attorney general to exercise this, why the administration took it upon themselves to authorize, without any oversight by the Congress that‘s effective oversight, the surveillance of Americans. 

MITCHELL:  Well, what they‘re saying is that technology has changed, that you can‘t just go to this court with a couple of telephone numbers, that when they capture someone like Abu Zubaydah, chief of operations or the number three in Al Qaeda, they have a laptop with potentially thousands of phone numbers, that they had to move fast, and based on a whole web of these numbers.

FEINSTEIN:  Oh, but wait a second.  And this is where it becomes difficult.  If you‘re going to say that the American military can electronically surveil literally thousands of Americans at a given time without any oversight by a court...

MITCHELL:  Isn‘t that what the president is saying?

FEINSTEIN:  ... I‘d have a very hard time thinking it was thousands.  I mean, it may be tens, unless they‘re going in and taking records on a level that I am not aware of. 

MITCHELL:  Well, we‘ve been told—we at NBC News have...

FEINSTEIN:  Well now, altogether over four years, they‘ve said that this could amount to the thousands. 

MITCHELL:  Exactly. 

FEINSTEIN:  But my understanding is that the FISA court, on an emergency basis, is able to handle this.  At the very least, it should have been tried.  And at the very least, if it was found to be wanting, it should have been brought to the Intelligence Committees. 

I think what this administration has increasingly done is, rather than alert the entire committee—which is proper oversight, as I‘ve just stated—call in the eight members and say, “This is what I‘m going to do; now you can‘t talk to anybody about it.” 

As a matter of fact, I called Senator Rockefeller and I got rather heated and said, “What do you know?”  And he said, “I can‘t talk about it.”  “Well, did you?”  “I can‘t talk about it.” 

Now, I‘m privy to classified information.  I sit on both Intelligence and Judiciary.  And I can‘t find out anything about it.  That is just plain wrong. 

MITCHELL:  Well, we‘ve got more on that, many questions more on that, and some new information tonight from Senator Rockefeller.  So we‘ll be back with Senator Dianne Feinstein in just a minute to talk about why Senate Democrats don‘t want to renew the Patriot Act.

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MITCHELL:  Welcome back to HARDBALL.  I‘m Andrea Mitchell in tonight for Chris Matthews. 

And we‘re back with Senator Dianne Feinstein, Democrat of California, who sits on the Select Intelligence Committee, and you sit, Senator Feinstein, along with Jay Rockefeller.  You have already had words with your Democratic colleague. 

This is a two-page letter.  I don‘t know if you can see it.  It is handwritten.  Two pages from Jay Rockefeller that we have just obtained.  And it is dated July 17, 2003.  It is a letter to Vice President Cheney from Jay Rockefeller complaining that he does not like this surveillance. 

He doesn‘t feel comfortable not being able to talk about it and complain publicly about it or complain to his colleagues.  And that he was filing this in the Select Committee‘s Intelligence sealed office there so that nobody could look at it.  But that there would be a record of his objections. 

Have you discussed this with him now since it has come out? 

FEINSTEIN:  No.  He won‘t discuss it with me.  But I say good for him. 

MITCHELL:  What does this do for relationships up there on the Hill, Senator?  You‘re colleagues.  You‘re long-time friends. 

FEINSTEIN:  No, no, the point is he can‘t discuss it.  You see, that‘s why it isn‘t proper oversight.  This kind of thing, as I tried to point out in the earlier segment, should have come to us in writing, and we should have been able to review what the plan is. 

MITCHELL:  And it is only the eight members, the leadership and the Democrat and Republicans who lead the Intelligence Committee‘s House And Senate.  Those are the eight who are aware of this, and they were sworn to secrecy so they couldn‘t even blow the whistle among their own peers. 

FEINSTEIN:  Well, that‘s right.  And I think that‘s the problem.  This isn‘t oversight.  So respectfully, when the secretary of state says, well, they were briefed.  No matter how many times it is, eight people knowing who cannot mention it to another senator or another House member is not congressional oversight. 

And I think it is a demonstration of what happens when you have one political party controlling both branches of government.  The checks and the balances cease.  They are no more.  And that‘s what happened here.  There was no check and there was no balance. 

MITCHELL:  What about the argument though that the president makes that he needs this authority?  Now, let me just show you and our viewers what the president said about the Patriot Act, and the efforts by Democrats and some Republicans, we should point out, to prevent its renewal. 

(BEGIN VIDEO CLIP)         

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Most of the senators now filibustering the Patriot Act actually voted for it in 2001.  These senators need to explain why they thought the Patriot Act was a vital tool after the September 11th attacks but now think it is no longer necessary. 

(END VIDEO CLIP)             

MITCHELL:  Now, does he have a point?  I know that you all suggested a three-month extension.  He wants to see a renewal.  It is going to expire at the end of the year with a lot of what, he and you, would claim are legitimate protections that the United States citizens need.

FEINSTEIN:  Well, that‘s right.  And of the original Senate bill, I was the Democratic co-sponsor and Arlen Specter was the sponsor.  And I was helpful, I believe, in 2001 or whenever it was that we did the original Patriot Act. 

And, in fact, more than 200 sections of the act are, in fact, the law.  These are 16 sections that were controversial, and we knew they were controversial.  And so we put a four-year sunset on them so that we could watch them. 

MITCHELL:  So that it would expire, right.

FEINSTEIN:  And they would be—they would expire, which would force us to reconsider them.  That reconsideration is going on.  And there is substantial concern about two sections.  The national security letters and section 215, the so-called library provision. 

Now, what has happened is over the years, I think the credibility through Abu Ghraib, through the violation of the Geneva Conventions, the conventions against torture, what just happened on electronic surveillance of Americans, I think without authority has caused serious concern about how these two sections will be used and the provisions in the two sections. 

So what has happened is we have asked for additional time to evaluate them.  Senator Sununu has a bill which would give three months additional time to look at these sections of the act.  I don‘t think that‘s asking too much in view of what‘s been happening.

MITCHELL:  But won‘t it expire now with the House having gone home for the holidays?  Won‘t it expire?  And the Patriot Act will not exist as a result of this debate, this filibuster. 

FEINSTEIN:  The House said they would come into session on Thursday if necessary and certainly the leadership can come, and if there is an agreement and the leadership of the House is willing to go along with it.  That will settle that. 

The point is there‘s ample time to settle this now.  There are probably some members of my party that don‘t want to see a Patriot Act.  I am not one of them.  And if I, at any point in this, feel that there‘s a disingenuous streak and that people are trying to kill the Patriot Act, I will not be part of that.  Because I do agree it is a vital and an important piece of legislation.  But we have to get it right. 

And because it is easily misunderstood out there, it is important that we get it right with both political parties agreeing to it.  And that‘s what should be going on right now. 

MITCHELL:  Thank you very much, Senator Dianne Feinstein. 

And when we return, President Bush holds a news conference today, one day after an Oval Office speech to the nation.  I‘ll ask two political experts what they think.  This is HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I swore to uphold the laws.  Do I have the legal authority to do this?  And the answer is absolutely.

(END VIDEO CLIP)

MITCHELL:  Welcome back to HARDBALL.  That of course was the president this morning at a news conference, responding to questions over domestic spying, the spying he approved after 9/11. 

For more on the president‘s campaign to win back America‘s hearts and minds, we‘re joined by John Harwood, political editor for “The Wall Street Journal” and Tony Blankley, editorial page editor for “The Washington Times.”  Welcome both. 

First to you, John.  The president says he‘s got the legal authority.  He says it‘s in the Constitution.  Alberto Gonzales, the attorney general, went out on the morning shows today. True, not true?  What is your best information? 

JOHN HARWOOD, POLITICAL EDITOR, THE WALL STREET JOURNAL:  Well, I‘m not a lawyer so I don‘t know...

MITCHELL:  But you play one on television.

HARWOOD:  Well, I don‘t even do that, actually.  I think this is a very difficult thing to assess.  Members of the Senate don‘t think that he has the authority.  Arlen Specter seems not to think he has the authority.  He‘s the chairman of the Judiciary Committee.  He‘s going to hold some hearings about it.

But I tell you, this was an extraordinary moment today.  You remember when Bill Clinton lost control of the Congress and had a press conference when he said, “I‘m not irrelevant.”  Here we had a moment where President Bush stood up and said, “I‘m not a dictator and I don‘t like you suggesting that I am.” 

It was really striking because you‘ve had a whole complex of issues on torture, on spying, on the Patriot Act, where the administration is trying to push the boundaries of presidential authority and now Congress is starting to push back.

MITCHELL:  Tony, the president said, certainly indicated this will be investigated.  How this leaked to “The New York Times.”  Here we go again.  This time, it is presumably a whistle blower because the Times initially said that the stories came from intelligence officials, intelligence operators who felt that the administration was going too far.

TONY BLANKLEY, EDITORIAL PAGE EDITOR, THE WASHINGTON TIMES:  I‘m not quite sure you would call them a whistle blower if they‘re committing a felony by releasing classified information. 

MITCHELL:  Do you think it should be investigated?

BLANKLEY:  As far as the government employees who released classified information, as “The New York Times” article said.  They said they got their information from current and former NSA officials.

So clearly they‘ve identified the sources.  If the information was classified, which presumably it was, then it was presumably a felony to give it away.  So putting aside what the journalists are allowed to publish, the government officials aren‘t allowed to release it. 

But I‘d like to go back to the first question, just briefly, because there are two independent lines of potential authority for the president.  One is statutory and that‘s what Senator Feinstein was talking about.  The other is constitutional, which is what the president has been primarily talking about.

And I just point out that Justice Leonard Han (ph) during World War II defined the legal standards embraced by the Supreme Court during World War II for how proportionally you may take withdraw of civil liberties during a time of war. 

And he said the test was to consider the magnitude of the danger, discounted by the unlikeliness of it happening.  So until you‘ve gone through the analysis and you haven‘t heard anybody in the politicians talking about it.  Until you‘ve decided how great the threat is and how likely it is to occur, you can‘t judge the constitutionality.  All we‘re hearing are civil libertarians making a maximum civil libertarian argument without considering the threat.  And that‘s part of the constitutional test. 

HARWOOD:  Andrea, clearly there‘s a lot more we need to know about this.  And I think Tony raises an interesting point.  But the one thing I think we shouldn‘t overlook is what exactly was the danger to national security by this disclosure?  That‘s not obvious.  The article wasn‘t about intelligence gathering techniques.  It‘s about whether the administration followed the proper procedures.

MITCHELL:  Do either of you have a problem with “The New York Times” publishing?

BLANKLEY:  Well, depending on if it was classified, I have a problem with it.  If it wasn‘t classified, then I don‘t.

MITCHELL:  Now, we should point out the president did cite the revelation about Osama bin Laden using the satellite telephones.  That was among other places, I think in your newspaper, “The Washington Times.”

BLANKLEY:  I think, yes, I think it‘s been in a number of places. 

HARWOOD:  But this article was not about how they gather intelligence.  It‘s about the procedures that the administration or the steps the administration took or didn‘t take in order to gather that intelligence.  I don‘t think members of al Qaeda are surprised that the United States is using all the tools at its disposal to tap their conversations.

MITCHELL:  Now, tonight there is a new poll out, “Washington Post/ABC poll which shows that perhaps this media blitz from the president, all of these speeches, having a news conference, Oval Office address, is working.

Probably taken before the Oval Office address, but the other speeches.  In the latest poll, the numbers show that he‘s gained seven points, up to 46 percent, was the Iraq war worth fighting. 

He‘s also picked up 18 points on whether or not people believe that we‘re moving towards possibly creating a legal and constitutional system in Iraq.  Clearly the impact of the elections, as we‘re approaching the elections.  So he‘s gaining ground by coming out and perhaps being a little bit humbler, Tony.  Not being quite as angry and defensive about the Iraq war.

BLANKLEY:  Well, of course, this poll was taken before the Sunday evening address.

MITCHELL:  And before the news conference.

BLANKLEY:  Where he was most humble.  But look, I think what‘s happening is he is gaining back his Republican support, which had been about 90 percent.  And it slipped down to the low seventies and is now coming up to the mid to high eighties.

That‘s largely what‘s happening.  And that‘s skewering all of the numbers, positively for him in the internals.  I think probably the most he can reasonably hope so.  And this is a change in public attitude, is moving up towards maybe a 47, 48, 49 percent job approval.  And satisfactory number on the internals.  And that‘s what I think is happening once he stood up after several months and started explaining and defending.

HARWOOD:  I agree that the White House would be delighted if the president‘s at 48.  But look, he‘s clearly getting some benefit from this offensive.  It‘s hard to separate out the effects of the election itself., which went very successfully and was widely covered, widely praised for the minimum level of violence and also the high turnout.  But no, the president‘s tone has been successful.

MITCHELL:  And it is a difference in tone.  He hasn‘t backed down at all from his arguments about the war and the rationale.  We‘ll be back with John Harwood and Tony Blankley in just a moment.

And a reminder, the political debate is always hot on Hardblogger, our political blog Web site.  And now you can download Podcasts of HARDBALL.  Just go to our Web site, HARDBALL.MSNBC.COM.

(COMMERCIAL BREAK)

MITCHELL:  We‘re back with “The Wall Street Journal‘s” John Harwood and Tony Blankley of “The Washington Times.”

Are the Democrats going to pay any price, John, when they go home?  The White House is probably betting that they are for letting the Patriot Act expire unless there‘s some last-minute rescue there.  And for criticizing the White House on this surveillance? 

HARWOOD:  The White House is definitely expecting that to happen.  And when I talked to White House people last week, they acted—like Lee Atwater once described when he saw Walter Mondale go on television saying, I‘m going to raise your taxes.  And Atwater said, I thought I was dreaming.

The White House officials can‘t believe the Democrats were willing to stand up and block the Patriot act.  However, they have some cover because there are some Republicans, John Sununu, Larry Craig, Chuck Hagel, potential presidential candidate sided with them on this issue. 

The president is weaker than he has been in the past, although this new Post ABC poll shows him up again.  And, in addition, as Tony mentioned, to helping him unite Republicans, that puts a little more heat on Democrats.  We‘ll see how it plays out over the next few weeks. 

MITCHELL:  Tony, what do you think about the political ramifications of what‘s been going on?  Did the president lose on this domestic spying or did the Democrats potentially? 

BLANKLEY:  My instinct on domestic spying is the country is no worse, from the president‘s point of view, than 50/50 on being realistic and saying, do what it takes versus those...

MITCHELL:  These are bad guys. 

BLANKLEY:  Yes.  So I think he is probably, either a draw or a slight winner on that issue. 

On the question of where are the Democrats?  I think some of their leaders got a little excited in October or November and got out further than they probably want to be.  Now some of them are probably going to scurry back a little bit.  I don‘t think there‘s a lot of damage the D‘s have done if they scurry back.  A few individual members have probably made statements that will come back to haunt them. 

HARWOOD:  But notice, that some in tough races, Bill Nelson in Florida, voted to sustain this filibuster. 

MITCHELL:  Democrat Senator Bill Nelson in Florida. 

HARWOOD:  That‘s right.

MITCHELL:  All right.  We have to leave it there. 

Thank you very much guys.  Thank you John Harwood and Tony Blankley. 

Fifty years ago, John Dingell Jr. of Michigan won a special election and joined the House of Representatives.  Congressman Dingell has been a member of the House ever since.  He is now 79 years old, but he remains a powerful legislative force in Washington, and he is not slowing down. 

HARDBALL correspondent David Shuster caught up with Congressman Dingell and has this report. 

(BEGIN VIDEOTAPE)        

DAVID SHUSTER, MSNBC CORRESPONDENT (voice over):  In 1955, when John Dingell first arrived in Washington from Detroit, buzz cuts were in, a Republican named Eisenhower was president, and Democrats were the majority party in Congress. 

JOHN DINGELL (D) MICHIGAN:  When I came, you would come down here in January, and you got one round trip ticket between your district and here.  So you would stay here until the Congress adjourned, and then you would go home. 

SHUSTER:  Dingell has aged over the years, and his party has been in the legislative minority for a decade.  But this Michigan Democrat hasn‘t lost his outspoken style. 

DINGELL:  I called the Bush administration incompetent, and they are.  Look at the mess that we‘re in this country. 

SHUSTER:  At 79 years old, Dingell is as feisty as ever wanting the health care, the war in Iraq and the federal budget. 

DINGELL:  The deficit this year is going to probably go $500 billion and nobody has the vaguest idea what it is going to be.  We‘re in a war that any logic or good sense we should not be in.  But we haven‘t got the vaguest idea of how in common sense we‘re going to get out of it. 

SHUSTER:  Dingell‘s view of common sense has been shaped by a legislative career that took off with John F. Kennedy. 

DINGELL:  We had a very, very good relationship. 

SHUSTER:  Dingell‘s relationship with Lyndon Johnson was even better.  He helped L.B.J. pass legislation creating Medicare and federal funding for education. 

DINGELL:  The federal aide education was a matter of great concern and interest to me and Johnson was big on that.  We got the first legislation through on that. 

SHUSTER:  Dingell said he always had suspicions about Richard Nixon, who ended up resigning the presidency in disgrace. 

DINGELL:  He was a very unfortunate man.  He was a hater.  And the result was that, I think largely, he destroyed himself. 

SHUSTER:  Dingell butted heads over energy policy with fellow Michigan native Gerald Ford.  He worked with Jimmy Carter on labor issues, jousted respectfully with Reagan through George Bush from his days in the House and went hunting with Bill Clinton. 

DINGELL:  When he talked to you, you always knew that he cared about what you cared about.  And that was a remarkable thing about that man. 

SHUSTER:  Through the years, Dingell has also worked for countless constituents and with a variety of celebrities.  That‘s a young baseball iron man Cal Ripken, actor Alan Alda, the Cookie Monster and a Dingell favorite at least based on the photographs, actress Brooke Shields. 

DINGELL:  I think it has to be said she‘s clearly better looking than I am and clearly a lot better looking than any of the presidents I‘ve served.  And I suspect she‘s much more decorative. 

SHUSTER:  Dingell remembers the bizarre moments like the time a spectator jumped from the gallery on to the House floor, starling the House speaker. 

DINGELL:  Well, all you saw was Tip O‘Neill sitting up there with this very strange look on his face. 

SHUSTER:  But Dingell also participated in the most serious and challenging legislative battles in modern American history, civil rights, Vietnam, rewriting the tax code.  There was a time, Dingell notes, when lawmakers argued their policy differences and then sought out consensus. 

DINGELL:  That consensus made it possible for to us all go over the floor, support the legislation, and we‘re good friends.  You don‘t find that today. 

SHUSTER:  And today, Dingell says, it is all about talking to the cameras, not each other, and compromises for losers.  He says times, indeed, have changed for Congress and for the nation. 

DINGELL:  I‘m one of those odd balls that is always an optimist.  But sometimes I‘m not quite sure whether the optimism is justified.  I think this is the greatest country in the world.  I think that it is a wonderful place to live.  And I thank God every day that I‘m able to live here and be an American.  And I thank him for what he gives me and my fellow Americans. 

But I also recognize that we have huge problems.  And regrettably we‘re not addressing them. 

SHUSTER:  Dingell has no plans to give up though.  He intends to run for re-election next year and two years after that.  If successful, John Dingell would then become the longest serving member in the history of the House of Representatives. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)            

MITCHELL:  And president and Mrs. Bush gave John Dingell and his family a private lunch showing that there is still the possibility of bipartisanship in Washington. 

Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  And on Friday, join Chris Matthews for a very special edition of HARDBALL, the top political plays of 2005 from the indictment of Scooter Libby to the slow response to Hurricane Katrina.  Chris brings you the biggest stories and the top HARDBALL moments of the past year.

“Countdown” with Keith Olbermann starts right now.

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