updated 12/27/2005 10:39:39 AM ET 2005-12-27T15:39:39

Guest: Richard Posner, Roger Cressey, Bill Owens, Bill Richardson, Maureen

Dowd, Mark McKinnon

ANDREA MITCHELL, GUEST HOST, HARDBALL:  Why did President Bush spy on Americans without seeking court approval, despite his repeated claims to the contrary?  And a road block for the Patriot Act.  Let's play HARDBALL.

(MUSIC)

MITCHELL:  Good evening.  I'm Andrea Mitchell, in tonight for Chris Matthews. 

As the fall-out continues over President Bush's decision to spy on Americans, a HARDBALL investigation has found that the president said more times than previously reported that all surveillance was approved by the courts.  This hour, we will hear from a former National Security Council official who served in the Bush White House when the eavesdropping began.  And we'll hear from a federal judge who says the spying doesn't threaten civil liberties.  Plus, “New York Times” columnist Maureen Dowd.

But we begin with President Bush's public statements on government wiretaps.  HARDBALL correspondent David Shuster reports. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  It was during last year's election campaign when President Bush stressed his concern for civil liberties while highlighting new, more aggressive anti-terror tactics.  Here's the president on April 20, 2004, in Buffalo. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Any time you hear the United States government talking about wiretap—a wiretap requires a court order.  Nothing has changed, by the way.

(END VIDEO CLIP)

SHUSTER:  In the wake of revelations the president bypassed the courts on dozens of occasions, the White House is now arguing the president was not being misleading. 

(BEGIN VIDEO CLIP)

SCOTT MCCLELLAN, WHITE HOUSE SPOKESMAN:  I think he was talking about in the context of the Patriot Act. 

QUESTION:  In terms of the American people, though, when he says “Nothing has changed”—

MCCLELLAN:  I haven't looked back at the remarks there, but you are clearly talking about in the context, as you pointed out, of the Patriot Act. 

(END VIDEO CLIP)

SHUSTER:  It's clear the president was talking about the Patriot Act.  But the April 20th, 2004, speech wasn't the only time the president tried to placate public fears about wiretaps.  Dozens of other reviewed by HARDBALL show he repeatedly addressed the issue in a broad fashion, while claiming his administration was trying to protect people by the book. 

(BEGIN VIDEO CLIP)

BUSH:  Everything you hear about requires a court order, requires there to be permission from a FISA court, for example. 

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

BUSH:  First of all, any action that takes place by law enforcement requires a court order.  In other words, the government can't move on wiretaps or roving wiretaps without getting a court order. 

(END VIDEO CLIP)

SHUSTER:  And when it did come specifically to the Patriot Act, the president suggested the new law was all his administration needed. 

(BEGIN VIDEO CLIP)

BUSH:  And so what the Patriot Act said is, let's give our law enforcement the tools necessary—without abridging the Constitution of the United States—the tools necessary to defend America. 

(END VIDEO CLIP)

SHUSTER:  Vice President Cheney reminded voters—

(BEGIN VIDEO CLIP)

DICK CHENEY, VICE PRESIDENT OF THE UNITED STATES:  The Patriot Act was carefully written to protect the civil liberties that have long defined American democracy.  All of the investigative tools I've described require the approval of a judge before they can be carried out. 

(END VIDEO CLIP)

SHUSTER:  Even this year, long after the presidential campaign was over, the Bush administration again repeatedly praised electronic surveillance and the essential involvement of the federal courts. 

(BEGIN VIDEO CLIP)

BUSH:  Roving wiretaps allow investigators to follow suspects who frequently change their means of communications.  These wiretaps must be approved by a judge. 

(END VIDEO CLIP)

SHUSTER:  And in seeking renewal of the Patriot Act, the president repeatedly underscored this. 

(BEGIN VIDEO CLIP)

BUSH:  The judicial branch has a strong oversight role in the application of the Patriot Act.  Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone or to track his calls or to search his property. 

(END VIDEO CLIP)

SHUSTER (on camera):  So, while some speeches were in the context of the Patriot Act, it's evident the president also spoke more generally about civil liberties and the importance of the federal courts.  The flap over whether the president acted legally in bypassing the courts comes on the heels of polls showing the president was just starting to regain his credibility. 

I'm David Shuster for HARDBALL, in Washington.

(END VIDEOTAPE)

MITCHELL:  Thank you, David Shuster.

Joining me now is NBC News counterterrorism analyst Roger Cressey.  He was at the White House when the decisions about the NSA surveillance were made.  And on the phone is Judge Richard Posner from the U.S. Court of Appeals, Seventh Circuit, who has written on this and who defends the program.

First to you, Roger.  Was there any doubt, when you were first part of those discussions presumably, about expanding surveillance to include people who would not know they were being eavesdropped without court permission? 

ROGER CRESSEY, NBC TERRORISM ANALYST:  Think back to before 9/11.  The counterterrorism community had a ongoing frustration, which was, we could always get the calls from overseas, in terms of the numbers and the individuals that were on the other end.  When there were calls coming into the United States, we did not know who was being called or who was calling out. 

After 9/11, there was a perception of an impending attack, another attack.  So there was this requirement to do something very quickly.  And I think, in that respect, the White House was justified in moving quickly, trying to determine if there was something else inside the United States to be worried about. 

What I see as a concern is that four years after, they did not go to Congress and seek a change into the FISA provisions to take into account this new reality. 

MITCHELL:  Let me ask you, Judge Posner, why couldn't they at least rely on the fact that they had 72 hours before having to go to that court?  They could have moved quickly, could they not?  I know that you believe that this program is necessary. 

JUDGE RICHARD POSNER, US COURT OF APPEALS, 7TH CIRCUIT (by telephone): 

The Foreign Intelligence Surveillance Act is quite limited.  The communications that can be intercepted are limited to communications between agents of a foreign power, agents of a foreign group.  So you might have a telephone call where you have a terrorist or terror suspect or someone who knows about terrorism at one end, person on the other end doesn't know anything about it, isn't a foreign agent, isn't a terrorist or anything and yet, that telephone call might contain information that the government could use to identify a terrorist, find out his address, his phone number, his plans, and so on. 

So I don't think the act is adequate.  It's not so much the warrant problem—although the warrant provision is very cumbersome and complicated—it's that a lot of important communication may contain a lot of foreign intelligence information, just is not within the scope of the act. 

MITCHELL:  I was listening to an interview with a former FBI official, a former Justice Department official, I should say, who was in charge of this whole program for several years, and said that it wasn't really that cumbersome, that they would go to the court—as we know, there were 19,000 applications over the course of some 20 years, more than 20 years actually, and only a handful were rejected. 

Roger?

POSNER:  If you—

CRESSEY:  I think—

MITCHELL:  Go ahead judge. 

POSNER:  If you read the statute—which is a painful process—but if you read the statute, you'll see that to get a warrant, you have to have a lot of information in advance to tell the court, to get the warrant.  A lot of the information is information that could only be gotten by interceptions, right?  So you have to know a lot just to get the warrant. 

MITCHELL:  In fact, judge, there's some suggestion today that one of the reasons for the resignation of one of the judges from that special court was his concern that the administration had been presenting warrants that were the result of what you might call tainted evidence.  They had come from illegal or warrantless surveillances, and then to clean them up for potential future use, had brought those to the court.  So he felt that the court was perhaps being used to clean up this whole procedure and felt so uncomfortable that he quit. 

POSNER:  The legal questions are very difficult, because of course the

administration argues that, you know, we are in a war against terrorism,

that as a result of a joint resolution of Congress that amounted to a

declaration of war.  During wartime the president has—and the military -

·         have a lot more authority to engage in interception of communications than it does in ordinary peace time. 

If you accept that argument—I'm not saying you should or shouldn't; it's just an argument at this point—but if that's accepted, then it would be lawful for the government to intercept certain communications. 

MITCHELL:  That's an ends-justifies-the-means argument. 

POSNER:  No, no—no, no, no—look—no, no, you are all wrong. 

MITCHELL:  It won't be the first time. 

POSNER:  It's a legal question.  It's uncertain—it's an uncertain area, what kind of powers were conferred on the president by that joint resolution.  It's arguable one way or the other.  If the legal argument is correct, there's no legal problem. 

MITCHELL:  Doesn't legislative intent mean anything? 

POSNER:  Wait a second.  Let me finish.  If the legal argument is incorrect, then yes, then you have an end-justifies-the-means, when can a president disregard the law.  That's another interesting question; that's a separate question.

MITCHELL:  You've got Joe Biden, who helped write the 1978 law.  You've got Arlen Specter, who is the chairman of the Judiciary Committee, and feels very strongly that the legislative intent of the 2001 resolution was not to give these broad powers to the president. 

POSNER:  Yes? 

MITCHELL:  Which means that, yes, it's arguable, but it's not as clearly arguable as you describe it. 

POSNER:  I didn't say it was clear.  I said it was arguable.  It's a gray area, it's unsettled. 

MITCHELL:  Let me go to Roger Cressey for a second, because you were a warrior in the war on terror. 

How much were your hands tied, do you feel, by the restrictions in the FISA law, number one.  And number two, is it partly because the National Security Agency and the other intelligence agencies were really beaten up after 9/11 -- not only did they feel a sense of personal guilt over having failed to prevent the attack, but they were excoriated by all of the after-action analysis.

CRESSEY:  Well, and some of that was fair and deserved and a lot of it wasn't.  I think the issue was, in the aftermath of 9/11, when we started to apprehend some of the very the senior al Qaeda operatives and we were in the process of exploiting all the information on their computers, on their cell phones and the hundreds of numbers that were then presented to us.

There was a requirement to go through those very quickly and to determine if any of those numbers were still active, were individuals in the United States still speaking to known al Qaeda operatives.  And that period, combined with what the White House believed was an imminent threat to go along with it, I think what they did was perfectly understandable.

My concern, of course now, is that there has been a number of years now where we've had this process in place.  There was not the effort made by the White House to go back to Congress to explain to them the new steps that needed to be taken in light of this reality.

MITCHELL:  And the contrary, the president and all of his spokesmen and his colleagues in the administration, as David Shuster pointed out, were repeatedly saying that they weren't doing this, as did Alberto Gonzales.  Doesn't that raise some serious questions?

CRESSEY:  Well, it's a question of, it's the “just trust me argument.” And I think the problem we have now is a crisis of confidence.  I think what the administration did was legal within their interpretation of the law, of the joint resolution, of what the Constitution gives the president in terms of power. 

The problem of course is that now we've had this public disclosure.  People are assuming the worst about the White House.  And what my criticism, I think now is, they should have taken the time to prep the battlefield, if you will, with Congress to explain what it is they needed to do in light of this new reality, post-9/11 and then seek changes in policies and procedures to support it.

MITCHELL:  Judge Posner, do you think they should have gone back after the fact?  Let's say they did what they did right after 9/11.  Should they in the last couple of years have gone back and try to change the law or the procedures or the notification to Congress?

POSTER:  I don't really know.  Of course, it's a secret program.  Or it was a secret program, so maybe there was reluctance to bring it up.  But, I think—I mean, these are interesting questions. 

Is the president being candid?  Has he lost trust?  But I think the real question is: do we need to have a more extensive program of electronic interceptions than FISA permits?  That's the really hard question.  You know, there is, of course, a civil liberties issue.  And there's also a security issue.  And I think that's where—that should be the real focus.

MITCHELL:  And where do you come down—do you come down on the side of security trumps civil liberties?

POSNER:  Well not of course in every case.  But I think in this situation you have to ask yourself, as a citizen, would you be terribly worried if you knew that the government was collecting your, you know—digitizing phone conversations and e-mail conversations and having them searched by computers for possible information relevant to terrorism.

If that disturbs you terribly, that's going to affect your judgment of this balance between security and civil liberties.  On the other hand, my feeling about that is that I don't regard that kind of scrutiny as a profound invasion of privacy.  On the other hand, I am very worried about terrorism.  And I'd like to—I'd like us to be—I'd like the government to be collecting all information that might contain clues to further terrorist attacks.

MITCHELL:  Well thank you very much, Roger Cressey and Judge Richard Posner.  And coming up, Governor Bill Richardson of New Mexico and Governor Bill Owens of Colorado react to President Bush's authorization of this secret NSA program to spy on Americans.

Plus, a sudden roadblock for the Patriot Act.  And later, “New York Times” columnist Maureen Dowd.  You're watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL.  I'm Andrea Mitchell.  We're joined now by Republican Governor Bill Owens of Colorado and Democratic Governor Bill Richardson of New Mexico, author of the book, “Between Worlds: The making of an American life.”

Welcome both.  Governor Owens, first to you.  The president is very much on the defensive about criticism, even from some Republicans, of all of this domestic spying.  What are the people in Colorado saying about this?

GOV. BILL OWENS ®, COLORADO:  Well, you know, I don't know that he's really on the defensive.  I think the president has done a good job saying by as commander in chief, he's exercised this authority.  And here in Colorado, obviously I can't speak for all of Colorado, but I would suggest that most Coloradans understand that a president in times of war needs to do things to protect the homeland.  These's a consistent...

MITCHELL:  ... of course, the counter-argument is that the war on terror will be with us endlessly.  So do you give up your rights from now and future times?

OWENS:  Well, you know, Andrea, there was a good piece in yesterday's “Chicago Tribune” by John Schmidt, who is an assistant attorney general under Bill Clinton, where John Schmidt went through the legal case for what the president is doing. 

Going back to 1972's Supreme Court case, going through executive orders that President Clinton signed, that President Carter signed.  I realize this is a complex and controversial issue, but I also believe that this president is doing things that are constitutional, are legal as commander in chief to defend the homeland.  And I think he's acted very appropriately.

MITCHELL:  Bill Richardson, Governor Richardson, what is your position on this? 

GOV. BILL RICHARDSON (D), NEW MEXICO:  Well, I generally agree with my good friend from Colorado, my neighbor, but on this one I don't.  I do believe there's very troubling situation with the NSA, which by the way, they are a very effective agency.  I've seen their intercepts when I was ambassador to the U.N.

They are very useful.  But to be used on Americans without having gone to Congress, on dubious constitutional grounds, I think it's just a bit troublesome.  Now the president does have the right to protect the nation when it comes to terror.  And there are some very, very, extenuating circumstances where I think with proper consultation with the Senate, getting some very strong legal opinions, bringing our intelligence agencies, you can maybe make some—some exceptions, but I am very troubled by it seems to have been widespread use.  And I remember seeing reports when Ambassador Bolton was being concerned about some NSA intercepts that he, Bolton, had asked for that involved Secretary Powell.  In fact, my name was in there on some of the North Korea talks, and I'm just wondering if there is a connection here. 

But at the very least the Congress should know, the Senate should know exactly why this happened. 

Again, I'm troubled by it.  I just believe there are limits to protect our constitutional rights. 

MITCHELL:  But how would you close that seam that everyone acknowledges exists between their spying on possible terror suspects overseas and the recipient of the phone calls, or the initiators of the phone calls, here in the United States?  Who can fill that gap? 

RICHARDSON:  Well, the reality is—what bothers me is...

(CROSSTALK)

MITCHELL:  Go ahead, Governor Richardson. 

No, you go first, Governor Richardson, and then we'll have Governor Owens. 

RICHARDSON:  OK.

Well, my concern is the widespread use of Americans, whether, in effect, the initiated phone calls or taps were on Americans as opposed to overseas. 

And the concern I have—the law is very clear.  The NSA is for international and CIA is for international intelligence, it's not domestic spying.  That's done by internal agencies, the FBI and others. 

But you've got to get a court order.  And we don't even have a court order here. 

So I'm very concerned about agencies that are mainly for our national security internationally, intercepts being used on Americans. 

MITCHELL:  And, Governor Owens, chime in there. 

OWENS:  Well, Andrea, I think that, that seam is exactly what we're talking about here. 

And I think, again—and I think that there have been a consistent series of court decisions, a consistent series of executive orders by Presidents Clinton and Carter and this president which make it clear that this president and other presidents have the power when al Qaeda is talking to an American to tape that call and to intercept it, when an American is talking to al Qaeda. 

I mean, President Clinton did it in Aldrich Ames' case.  This is not unprecedented...

(CROSSTALK)

MITCHELL:  Governor, that was the FBI...

OWENS:  ... and it's really not even unusual.

MITCHELL:  Pardon me, but that was the FBI, not the NSA. 

And, in fact, there are pretty clear rulings that, that is not precedented; that this is an unprecedented... 

(CROSSTALK)

OWENS:  No, actually, I disagree with you. 

I would—I realize you're in Washington, D.C., and I'm here in Colorado, but there are a consistent series of cases both from the federal intelligence courts, as well as the Kline (ph) case of 1972, the executive order of President Carter in 1979, which say that in foreign intelligence cases the president has the legal authority to wiretap without a warrant. 

And I think that that's why this president is confident of his legal authority to do so. 

MITCHELL:  Except, sir...

OWENS:  Yes, ma'am.  That's all right.

MITCHELL:  With all due respect, he has that authority to do that without a warrant using the FBI, but domestically he does not have the authority to use the NSA.  And he has himself acknowledged that it was never done before. 

But be that as it may... 

OWENS:  OK. 

MITCHELL:  ... let's talk about the concern that some of your Republican colleagues have. 

And particularly, why did the president then claim repeatedly, as our correspondent David Shuster pointed out at the top of the show, repeatedly he and Alberto Gonzales and others claimed that they weren't doing this. 

Why would they keep denying that they were doing this and reassuring Americans that it was not being done only to have it revealed later that it was being done? 

OWENS:  You know, Andrea, I saw that earlier piece, and the president said law enforcement authorities. 

But the president does have the ability to intercept foreign communications back to the United States if it involves foreign intelligence gathering. 

And just because the “New York Times” leaked something doesn't make it illegal. 

This president is defending this country, he's doing so using constitutional means which other presidents have utilized as well.  And I realize that it's something that most of us didn't know much about beforehand. 

But as John Schmidt (ph), an assistant attorney general under President Clinton, makes clear in yesterday's “Chicago Tribune,” there are a series of legal dicta which prove that this president has this authority which he so exercised. 

MITCHELL:  Well, hold that thought.  We're going to get you and Bill Richardson back in just a moment. 

We'll be back in a second with both governors.

And still ahead, “New York Times” columnist Maureen Dowd, author of the best-selling new book, “Are Men Necessary?”

You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  We're back with Colorado Governor Bill Owens and New Mexico Governor Bill Richardson. 

Governors, the Patriot Act is back in play.  There is a possible compromise going to be worked out tonight, but a lot of argument back and forth between the two parties. 

Governor Richardson, what is your take on the Patriot Act and whether or not these flaws in it, according to critics, should be fixed? 

RICHARDSON:  Well, there are serious flaws. 

When you have access to computer records, library cards, search and seizure provisions, that's very troubling. 

I believe these issues need to be fixed.  And what the president seems

to have done with this domestic spying by the NSA—which despite my good

friend's statements is really wrong, is basically illegal and needs to stop

·         that what we have now is the Patriot Act in real jeopardy because of concerns over substantial civil liberties.  Senator Larry Craig of Idaho, four Republican senators objecting to some of the more stringent provisions. 

The six months or less will allow the Congress to debate what are serious abridgements of our constitutional rights. 

Now, I do believe we've got to protect against terrorism, we've got to protect against threats to the homeland.  But there has got to be a real balance. 

And my concern is, with these issues relating to detention centers and torture and NSA spying, that the administration seems to be curtailing those basic constitutional rights that every American has, and that is precious.  And I'm very troubled by it. 

MITCHELL:  But, Governor Richardson, you haven't made a big secret about your interest in running for president. 

Isn't the Democratic Party at risk of being painted as soft on the war on terror, soft on war in general by having held up the Patriot Act and risking having it expire? 

RICHARDSON:  I don't believe so, Andrea. 

I think the American people want to be sure that there is a balance between securing our homeland, protecting us against terrorism and protecting our very inalienable rights of freedom and constitutional rights.

So, no, I don't just think that it's a matter of terrorism versus constitutional rights.  I think it's a matter of striking a balance, and I believe the American people want that balance to happen.

So I don't see any risk, political risk.  This should not be a partisan issue; this should be about what's best for our country, protecting ourselves, but also protecting our fundamental rights. 

MITCHELL:  Governor Owens, should the White House go along with an agreement that will eventually close some of these loopholes in the Patriot Act that people are concerned about? 

OWENS:  You know, Andrea, Bill Richardson and I are very good friends, we've worked together on many, many issues, but on this one I have a little bit different perspective. 

I think the Patriot Act, which was passed four years ago with almost a unanimous vote of the House and the Senate, has worked very well over these last four years to protect Americans while preserving our civil liberties. 

Sometimes I think we forget what we're—what's really at stake in this war against terror. 

These people on the other side of us don't believe in the Constitution.  And what they're trying to do is not just kill a few of us, they're trying to put nuclear devices into American cities.  If they could, they would. 

So the Patriot Act, which, again, was passed four years ago, which has I think has worked very well over these last four years, is something that should be extended and I support the White House's attempt to do that. 

Incidentally, a majority of the United States senators support the extension of the Patriot Act.  It's just a filibuster that has kept us from reaching agreement on it. 

MITCHELL:  All right.

Thank you very much, Governors Bill Owens and Bill Richardson.

And Merry Christmas and happy new year to both of you. 

RICHARDSON:  Thank you.  Same to you. 

OWENS:  Thank you, Andrea.

MITCHELL:  And up next, “New York Times” columnist Maureen Dowd will be here with her take on the domestic spying story. 

You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL.

“New York Times” columnist Maureen Dowd has covered both Presidents Bush 41 and 43 and wrote about them in her earlier book, “Bush World: 

Enter At Your Own Risk.”

Her latest book explores different territory, the mine field of male/female relationships.  It's called, “Are Men Necessary?  When Sexes Collide.” 

Maureen, welcome.

MAUREEN DOWD, “NEW YORK TIMES” COLUMNIST:  Thank you.

MITCHELL:  You have been provocative in every area and most recently in your most recent column about Dick Cheney and Don Rumsfeld conspiring to eavesdrop. 

DOWD:  Right.

MITCHELL:  Where do you think the American people are on this issue of eavesdropping? 

MAUREEN DOWD, “NEW YORK TIMES” COLUMNIST:  I don't think—I think that the most dangerous thing that Cheney has done through the years is sort of change the American identity. 

You know, I think he wanted to do that, he wanted to exorcise the ghosts of Vietnam and Watergate and stiffen our spine and get rid of moral ambivalence and get moral clarity.

But the way he's done it has caused the opposite effect.  And I think that Americans don't like snooping.  And a lot of Republicans don't like snooping.  And it's caused Bush to lose the Republicans in Congress. 

MITCHELL:  Do you think that they do solidify the base, though, they solidify the base of people who really worry about 9/11? 

This goes back to the same theme the president campaigned successfully on in 2004. 

DOWD:  Right.

Well, I am the daughter of a police detective.  I always err on the side of giving law enforcement all the tools it needs.

But these guys just—this is not about that, because they could have gone to a super secret court and gotten the warrants they needed.  This court since 1978 has only rejected five warrants out of nearly 19,000.  It wasn't about that. 

It was about Cheney's intense obsession about expanding executive power.  He wanted to blow off this court. 

MITCHELL:  Well, you and others focus so much on Dick Cheney, but doesn't he really reflect what this president believes and wants? 

DOWD:  Yes.  I think the Bushes—well, the Bushes—you know the Bushes.  I mean, you were a brilliant Reagan reporter when we covered Reagan together, and the Bushes—even from the time the father was vice president their whole family mantra is “Trust us, we know best.” 

But I think in the case of Bush and Cheney, they have gone so far around the law in so many areas and not told the truth in so many areas that it's hard even for Republicans now to trust them. 

MITCHELL:  But this is one area—I mean, you have written so much about the father-son sort of Freudian Bush analysis.  But this is one area where the father and son are pretty much in sync, I would think. 

DOWD:  Well, on the “trust me” thing. 

But, I mean, look who the concierge of the family is.  I mean, it was one thing to trust them when they had Jim Baker, it's another thing with Dick Cheney who, as Bob Woodward wrote in his book, has this weird fever.  He brought America into the bunker with him.  He has a dark, gloomy, paranoid vision. 

I mean, Bush wanted to be Reagan II, but Cheney and Rummy are like Nixon II.

MITCHELL:  But aren't they, in their minds, protecting Americans from another attack? 

I mean, what Dick Cheney said on the flight back from Oman was that it's no accident, it's not a coincidence that there hasn't been an attack because, in fact, they did expand the powers and used this surveillance in a way that it hasn't been used before. 

DOWD:  Yes, I don't agree with that. 

And his whole attitude that warrants are so 20th century—I mean, you've got to go by the law.  You just have to.

You know, we're—first, Cheney and Bush shredded, you know, the Atlantic alliance, then they shredded the Geneva Convention, and now they're shredding the Bill of Rights.  You just can't do that.

MITCHELL:  Now, as an expert on are men necessary...

(LAUGHTER)

MITCHELL:  ... is this a gender thing?

Would a woman president be pursuing national security in quite the same way, or would it really matter on which woman?

DOWD:  Yes. 

If you went to a Catholic girl's school, you'd know that women can be just as nasty and territorial as men, certainly, and if you've seen all those Amazon B-movies.  But I do use Cheney as an example, of you know, they were afraid to let a woman be president because they thought she'd have lunar tides and raging hormones.  But Cheney has raging hormones every day. 

MITCHELL:  I'm not sure I want to go there.  But how do you think women voters are reacting to all of this?  Women care as much as men about protecting the family, the homeland.

DOWD:  Of course.  That's why they often vote on manliness issues too.  They want the good father who's going to protect the house from intruders, just like men do.  But the question is, is this effective?  Was torture, you know—Cheney keep pushing for torture, is that effective?  So I don't think it is.

MITCHELL:  Where does this put a candidate such as Hillary Clinton, who has moved onto the Armed Services Committee and tried to increase her own reputation on both foreign policy and in the military.

DOWD:  Right.  Well she's trying to be as manly as she can.  She voted to authorize the war.  She's on the Armed Services Committee.  But she's also triangulating and pandering on this Flag Burning Act.  So I don't know if she's going in the right direction either. 

I think the guy who comes out the best is McCain, because he made the White House back off on torture and also he's warning that we're losing our morality authority in this country and I think we are with things like big brother snooping and torture and more torture.

MITCHELL:  And someone like Condoleezza Rice?

DOWD:  Well, that's interesting, because the question with Condoleezza is, does she really go along with all these things that these guys are proposing?  Or does she try and resist it in internal meetings?

MITCHELL:  She was at the table.

DOWD:  Yes, I know. 

MITCHELL:  She was a security adviser when all of this took place.

DOWD:  I know, it's interesting that she has high polls even though she goes along with these unpopular decisions.  But she, like Hillary, she's very manly.  They don't cry and they don't throw like girls.

MITCHELL:  And you're using the term manly as a positive?

DOWD:  Yes.

MITCHELL:  Politically?

DOWD:  For them, yes.  They're relentless.

MITCHELL:  Condoleezza Rice has also been a softer foreign policy person rMD+IN_rMDNM_since she became secretary of state.  She's become a diplomat.  Some people suggest she's doing all the things that Colin Powell tried to do in the first four years and got turned down.  Talked to the North Koreans, talk to the Iranians, make peace with Europe.

DOWD:  Well, it's so fascinating because the question about Condi is, is she going to try and known Cheney off and get his job so she could set herself up to run against Hillary.  I mean, the dream race would be McCain and Condi versus Hillary and Obama.

MITCHELL:  Knock Cheney off, meaning vice president.

DOWD:  Yes, if somehow he could leave early and go into the secure,  undisclosed location a little early and let her get on the ticket somehow.

MITCHELL:  Now what reaction do you get from men to the book?

DOWD:  Well, I've been deluged with e-mails and letters and calls and guys wanting to talk about it and way whether they like strong women or don't like strong women.  And whether their daughters should try to hide it if they're strong.  So it's funny, I feel like “Dear Abby” answering all these e-mails.

MITCHELL:  You've become our national therapist on the therapist of gender issues.

DOWD:  Exactly.

MITCHELL:  In addition to being everything else that you are.  Maureen Dowd, thank you very much.

DOWD:  Thanks. 

MITCHELL:  Merry Christmas to you.

DOWD:  Thanks, merry Christmas.

MITCHELL:  And coming up, as we wind down the year we'll take a look at how President Bush is getting along after the leak of the NSA domestic surveillance program and the ongoing CIA leak investigation.  One of the president's closest media advisers, Mark McKinnon will be with us.  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  We're back with the ongoing CIA leak investigation and the domestic spying story making waves on Capitol Hill.  How is President Bush handling it?  Mark McKinnon is a long-time media adviser to President Bush.  Mark, welcome.  Thanks for joining us.

MARK MCKINNON, BUSH MEDIA ADVISER:  Glad to be here, thanks Andrea.

MITCHELL:  Well, the president was on the offensive, really, when he came out hitting, saying that not only had they done this but that it was the right thing to do.  That he needed to do it to protect the American people.  He's on message—back on the message of the 2004 campaign.  Is that the strategy for getting him back on top after several months of declining polls?

MCKINNON:  Well, I think we've seen the president be very aggressive in the last few weeks, focusing on a very forward-leaning message about what we're doing in Iraq, why we're doing it, laying out a—and striking back at the critics about pre-war intelligence before that.

And now on the latest news leak by “The New York Times” that was published by “The New York Times.”  And he is not waiting at all, but getting out in front of this news, which I think he ought to be, because he's framing the issue.  And I think that this is a very important issue to the president and he thinks it's an important to our national security.  So he's getting out in front of this one and hitting it hard.

MITCHELL:  Well, now, the latest we hear from the Hill is that there's likely a compromise, but it's only a one-month extension of the Patriot Act.  So even the House Republicans turned against the White House, which had previously insisted on no extension.  Isn't this a big setback?  He's losing his clout with his own party on Capitol Hill.

MCKINNON:  No, I don't think that's the case at all.  In fact, I think there was a majority of Republicans and there were only a few that led to the filibuster.  But overall, there's a majority that support it.  And I think over the course of the next few weeks, we'll see that the president's bill ultimately will pass.

MITCHELL:  The president's bill may pass, but he has had to agree to a very brief extension and there's a lot of Republican concern about some of the ingredients of this Patriot Act.

MCKINNON:  Listen, Andrea.  You know, this is a debate that we're glad to have, because it's about our national security.  And the president has taken it as his responsibility to protect this country.  And if we're arguing about whether or not we want to err on the side of constitutional rights or find out about intelligence being passed back and forth to foreign agents in Iraq or Afghanistan, we're not going to shy away from that debate. 

And I think the Republican Party is squarely on the side of national security in both these debates about the Patriot Act and the wiretapping.  So this is a debate we'll stand up and we'll proudly engage in.

MITCHELL:  Is there is a cumulative effect, where there's a sense that on issues from the Geneva Convention to Abu Ghraib, to these secret surveillances, that the White House has not been up front with the American people?  Does he begin to lose some credibility?  Do you have any concerns about that?

MCKINNON:  I think just the opposite, Andrea.  I think we have seen progress in Iraq.  And people begin to see a lot of—they see that it's working.  They know that we haven't been attacked in four years.  And you know, I went to jail briefly on a constitutional issue protecting First Amendment rights.  And I care about constitutional rights, too.

But when I think about somebody sitting in a library in America, sending an e-mail or phone calls that have the word up, “Blow up the Pentagon,” into Afghanistan or Iraq, I want our national security people to know about it immediately, real time.

I don't want to have to wait 24 hours or 72 hours to pass that through a court.  We're in a different age, different technology.  And a different enemy.  And I think that we have to recognize—I think the president has, that he's got to make changes in order to protect the American people.

And I think at the end of the day, that's what the American people understand and they look back and they say, “You know what? No attacks in the last four years.  They must be doing something right.”

MITCHELL:  Of course, the counter argument is that you don't have to wait 72 hours.  You can do it and then tell the court 72 hours later.  But we'll—we'll talk about that more in just a second.  We'll take a break.  We'll be back in just a moment with Mark McKinnon.

And for the best political debate online, just go to 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 Mark McKinnon, the veteran media adviser who helped steer President Bush to victory two times.  Mark, Karl Rove, you've said that he's back in the game, back in every decision.  Is he clear of the cloud of this CIA leak case?

MCKINNON:  Well, I don't think he ever left the game.  Karl's always been in the game.  And you know, I don't know anything more than you do about the case.

MITCHELL:  But in terms of the practical effect, he's in the decision-making level in the White House and he's in full play, right?

MCKINNON:  He's front and center.  And he's deeply engaged and relaxed and confident, last time I saw him.  And doing good work for the president.

MITCHELL:  How do you think the CIA leak case has affected Rove and the president?

MCKINNON:  Well, all I can tell you, Andrea, is that I haven't seen any affect on Karl or the president in terms of doing their job and getting up every morning and serving the American people.  So I see no evidence that it's in any sort of a handicap, as far as getting the job done.

MITCHELL:  You were quoted recently as saying, when asked about whom you'd worked for in '08, and every Republican wants you on their side, you said that you would consider working for John McCain, unless someone who's part of the Bush inner circle, like Jeb or Condi Rice were running.  What makes you think that either Jeb or Condi Rice might be in the mix?

MCKINNON:  Well I don't know, and I don't think anybody knows.  And I don't think John McCain knows if he's going to run yet.  And he said that he won't make that decision for at least another year.

MITCHELL:  But you think there's still a possibility that Jeb Bush or Condi Rice might become candidates?

MCKINNON:  I think anything's possible in presidential politics and '08 is a long time away.  But I spent some time with John McCain when he campaigned for the president in '04 and I respect and admire him a great deal.  And I told the president, as I told the senator, that if anybody close to the president, and practically speaking that means Jeb Bush or Condi Rice, if they ran, I would support them.  But otherwise I'd be inclined to support the senator.

MITCHELL:  So Condi Rice, who says that she is not a candidate, never would want to run for office, is still a viable possibility.  She's got a lot of political skill and certainly a lot of popularity.

MCKINNON:  I think both Condi Rice and Jeb Bush are incredibly talented people and very big on the political scene.  And I think they've got great futures and very bright futures ahead of both of them.

MITCHELL:  Before I let you go, broad themes for the State of Union? 

Looking ahead to the new year?

MCKINNON:  Well, you know, I think that we've got a lot of progress in Iraq.  We really see a light at the end of the tunnel and I think that with this last election, there's a lot of progress.  And I think it's a big psychological curtain razor for people in Iraq.  Because I think that they do see progress. 

I think we've got consistent and stable economic news.  And I think the president will—you know, I think people will now look at other domestic programs that the president will talk about and kind of shift their attention, because I think they're relieved now, in terms of Katrina, Iraq, high oil prices in the economy.  So it's an opportunity to kind of take a fresh look and I think the president will give them some fresh things to look at.

MITCHELL:  Well, Mark McKinnon, betting on a light at the end of the tunnel and a lot of other things happening correctly in Iraq is a very optimistic prognosis.  We all hope you're right.

MCKINNON:  Well, for all of us, I hope so too, Andrea and happy holidays to you.

MITCHELL:  And finally, before we wish you a merry Christmas and a happy New Year, are there any other political themes that you think the president should focus on besides the economy and hoping for good news in Iraq? 

MCKINNON:  Well, listen.  Ultimately, I think the president's going to be judged on Iraq primarily and I think that's—and the war on terror in protecting this country.  And so I think he's got a full focus on that, because we're facing a threat like we've never faced before.

But I think that the same time, he's done great things in the economy and I think he's got a whole set of domestic issues that he'll articulate, including immigration and other big issues that he's never shrunk from.

MITCHELL:  OK.  Well thank you, Mark McKinnon, for joining us here today.  And tomorrow, a very special edition of HARDBALL.  The top political plays of 2005.  Join Chris Matthews, “Newsweek's” Jon Meacham and me, for the biggest stories of the past year.  Right now, it's time for “THE ABRAMS REPORT” with Dan Abrams.

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

END   

Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant,Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.'s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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