updated 12/29/2005 10:55:49 AM ET 2005-12-29T15:55:49

Guest: Edward MacMahon; John Zwerling; Ron Christie; Nick Callio; Gary

Bernstern

NORAH O'DONNELL, MSNBC ANCHOR:  Tonight, defense attorneys for a terror suspect plan to challenge the Bush administration on the legality of super secret NSA spying.  Could this lead to a civil case against the president himself?  Let's play HARDBALL.

Good evening.  I'm Norah O'Donnell in tonight for Chris Matthews.  There's more fall-out over the National Security Agency's domestic spying program tonight, and President Bush could be the prime target. 

Defense lawyers in some of the biggest terrorism cases in the country are now mounting legal challenges against the surveillance program in an effort to find out whether the secret wiretaps were used against their complaints.  And attorneys told the “New York Times” that they are considering bringing a civil case against the president on behalf of an al Qaeda operative who pled guilty to a failed plot to blow up the Brooklyn Bridge. 

Are convicted terrorists going to be suing President Bush?  And will this NSA program torpedo the Bush administration's most important courtroom victories in terror cases?

Two attorneys of convicted Muslim radicals with terrorist ties will answer those questions in a moment.  And later we'll talk to a former CIA field commander in Afghanistan, who says we missed an opportunity to get Osama bin Laden in Tora Bora just months after the 9/11 attacks. 

But first, we begin with NBC News chief justice correspondent Pete Williams on the legal fall-out over the NSA wiretapping program.  Pete, are we going to be in a situation now where the president and the NSA could be sued? 

PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT:  Well, could be, absolutely.  Where this will go is anyone's guess at this point.  I think there's—it's safe to say there's a strong desire to try to see how far this goes in the courts.  But it's not at all clear that it will go anywhere. 

First of all, it isn't clear—you know, one of the reasons that people don't sue over being spied on is that they usually don't know.  Well, the government has been somewhat straightforward in saying that it did it in the Iyman Faris case.  And his case is now on appeal.  Even though he has pleaded guilty, there are some technical issues that his lawyers are appealing.

And his lawyer has been saying for the past couple of days that he's willing to consider some kind of a legal challenge to see whether there was illegal surveillance of his client. 

But there are several problems here, Norah.  It's not at all clear that that can be declassified, that the lawyers have quote, unquote, “the right” to that evidence.  Now, normally, defense lawyers in criminal cases have a right to the government's evidence if it would help them, if it would help them disprove the government's case.  But there isn't—it isn't clear when you have classified information like this that they have a right to it. 

Secondly, it's not clear if the prosecutors whether the cases even knew that such evidence existed.  So how do you find it?  Do you have a right to it?  Do you have a right to challenge the government's gathering of it?  All these are difficult questions.  It's not at all clear how far this would go if they can even get a handle on it. 

O'DONNELL:  But we do know at this stage that it certainly opens up a can of worms and makes it more difficult for Justice Department attorneys who are going to face challenges over this. 

WILLIAMS:  Potentially.  But, you know, if somehow this does get into court, I must say I think from the legal scholars that I've been talking to the last couple of days, there is a real division out there about whether the president may have had the legal authority to do this. 

We're hearing a lot from people who say he didn't.  But the government has been trying to make the case that he has a constitutional ability and there is separate congressional approval for this under the authorization for the use of military force that came along right after 9/11. 

The government's theory goes something like this.  Yes, it's true Congress didn't explicitly say the president can spy on people, but it also didn't explicitly say the president could detain enemy combatants.  The government argued in court that detaining combatants is incident, necessary to carrying on a war and the Supreme Court agreed.

That same logic, the government says, should allow this—that intelligence-gathering is also incident to war.  That's an untested theory, but that's the government's argument, and there are a lot of lawyers who say they may have something there. 

O'DONNELL:  All right.  Thank you, Pete Williams. 

Let's now bring in two lawyers involved in potential cases.  Edward Macmahon is lawyer for Ali Al-Timimi, a Muslim scholar who is serving a life sentence for inciting followers to wage war against the U.S. overseas. 

And John Zwerling is representing Siefullah Chapman, a follower of Al-Timimi, currently serving a 65-year sentence in federal prison.  Let me ask each of you briefly, does this now mean—you guys are lawyers for these clients—that the president is going to be sued? 

EDWARD MACMAHON, ATTORNEY FOR ALI AL-TIMIMI:  Well, I can't say that Al-Timimi is going to file a lawsuit against anybody, but I'm sure that somebody that's the target of this warrantless surveillance will in fact sue the president.  It's just a matter of time.

O'DONNELL:  John, do you think the president will be sued? 

JOHN ZWERLING, ATTORNEY FOR SEIFULLAH CHAPMAN:  Well, not my client in the near future.  He's more concerned with his liberty.  He's more concerned with getting out of the trap than nibbling on the cheese. 

O'DONNELL:  But you have read this story now which is a huge story about what the NSA has been involved in.  On what grounds now do you believe you have legal recourse for your clients who are currently serving jail time and have been convicted for terrorist ties? 

MACMAHON:  Well, I listened to Pete's intro.  If the government has evidence in its possession that would help a defendant defeat charges—these guys essentially are serving life—the government doesn't have the right because of national security of any other reason just to sit on evidence that would help somebody in a criminal case. 

O'DONNELL:  Of course.  But as Pete pointed out, you're never going to know because it's secret.  That's the point of it, that they used this stuff.  They didn't have to go through FISA in order to get this, so they may have obtained some information about your clients that you'll never know about it.  What makes you think that you're ever going to find out about it?   

MACMAHON:  Well, I have a lot of respect for Pete, but classified information is used in lots of criminal cases.  There's a specific statute that deals with how the government can withhold that information from a defendant. 

If this information exists in these cases, I don't believe a federal judge is going to allow the government just to say forget about it, let this guy rot in prison.  Who cares?  This evidence will come out if it turns out to be favorable to one of these guys.  Remember, a week ago they would have told you they weren't spying on anybody. 

O'DONNELL:  But, John, don't you have to prove that these wiretaps are illegal before you can take one step further? 

ZWERLING:  First you have to prove that you were a subject of the wiretap, before you have any standing to challenge anything.  If it was used, then you have the right to litigate whether it was legally obtained or illegally obtained. 

O'DONNELL:  Well, listen to President Bush, because as we've all heard him say, he believes what he has done is legal. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  We use FISA still.  You're referring to the FISA court in your question.  Of course we use FISA but FISA is for long-term monitoring.  What is needed in order to protect the American people is the ability to move quickly to detect. 

Having suggested this idea I then, obviously, went to the question, is it legal to do so?  I am—you know, I swore to uphold the laws.  Do I have the legal authority to do this?  And the answer is absolutely.  As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the U.S. Congress. 

(END VIDEO CLIP)

O'DONNELL:  Let me ask both of you just quickly, do you believe that the president has this authority?  Yes or no?

ZWERLING:  No. 

O'DONNELL:  Do you?

MACMAHON:  No, I don't think so. 

O'DONNELL:  So you already don't believe that he needs this authority in order to protect Americans from terrorism but what is important for your clients is finding out whether there were ever secret wiretaps used.  Are you confident that you're ever going to be able to figure that out, John? 

ZWERLING:  Well, that's our job is we're going to everything we can to find out.  And I don't consider the president to be the highest legal authority on the Constitution. 

O'DONNELL:  Let me ask you, because I think there's a public sentiment that's probably growing out there about this particular case.  And we mentioned this in the lead-in.  There is one guy out there who was convicted of trying to blow up the Brooklyn Bridge. 

And now his lawyer says that he's going to sue the president of the United States, and some may say on a technicality and that this guy could get out of prison.  Isn't this the president's worst nightmare?  How can we allow this to happen?

MACMAHON:  Well, look.  Whether he files a lawsuit against the president or not is irrelevant.  As Americans, we're all entitled to fair trials.  Everybody is entitled to know what evidence the government is going to produce against them and to confront that evidence. 

We don't make exceptions for fair trials just because of the outlandishness of the charges.  None of us are in favor of terrorism but we are in favor of people having their constitutional rights.  And nothing the president said there indicated that he had any concern about protecting the constitutional rights of any of these defendants. 

O'DONNELL:  But, Ed, your client was convicted—a Muslim scholar was convicted and is serving life for trying to incite young followers to use violence against the United States overseas.  What possibly could finding out about a secret wiretap mean that your client should be freed? 

MACMAHON:  Well, I don't want to discuss the specifics of the case, but if his phone calls were being monitored during the whole time, at issue in the indictment, and the phone calls don't match up with what some of the government snitches say he said on the calls, that would be very helpful to him. 

And you could extrapolate that out as far as you wanted in these cases.  Nobody is supposed to just take the government's word that they don't have any favorable evidence because of national security. 

O'DONNELL:  A quick answer to this.  Since we have learned that the government is now involved in a lot more data mining than we had previously known, working with phone companies and controlling these switches, calls that go overseas, et cetera, do either of you have any concern that possibly your own phone lines could have been tapped in conversations with your clients? 

ZWERLING:  You're always concerned about that as a lawyer.  And not just the mining of information, but just surreptitious eavesdropping.

O'DONNELL:  Ed, let me ask you, one other thing that we learned yesterday was that the president says we still use FISA.  And we do know that since the president has been in office they have gone to the FISA court some 5,000 times.  We also learned that there has been unprecedented second-guessing by the FISA court by this administration.  More than 179 cases modified, some rejected.  What does that suggest to you? 

MACMAHON:  The FISA court is a court made of judges who are very serious about their jobs.  But to say that the president has trouble getting a warrant, therefore he should just ignore the court entirely, is an unbelievable argument. 

Why have the court at all if the president can do this?  Why doesn't he just do it on his own.  If he doesn't need the court or he's unhappy with the judges, skip it all together.  That's apparently what he's decided to do. 

O'DONNELL:  Does it suggest to you that perhaps this administration has been asking a lot from the FISA court.  You say it's a pretty government-friendly court. 

MACMAHON:  There may have been in the last 10 years I'm sure John—

ZWERLING:  There have been five rejected warrants. 

O'DONNELL:  Almost never rejected. 

ZWERLING:  I'll tell you what they're upset about.  They are upset about being lied to in the affidavits that come before them.  The 4th Circuit is upset about being lied to in the Padilla case and the courts and judges are starting to get upset about being lied to.  They lied to the American people about many things. 

O'DONNELL:  When you say they, you mean who? 

ZWERLING:  I mean Bush and his administration.  He sent in the Justice Department to tell the 4th Circuit they had to hold this man without a trial or any type of due process because he was going to be a dirty bomber.  Turns out they don't have the evidence for that based on their indictments. 

O'DONNELL:  Thank you to Ed MacMahon and John Zwerling.  Up next we're going to get a response to some of the claims that were just made by the attorneys.  We'll talk to a former White House adviser, Ron Christie. 

Later on the program, did the U.S. blow an opportunity to catch Osama bin Laden in Afghanistan in December of 2001.  We'll ask a top CIA field commander who was there chasing bin Laden.  You're watching HARDBALL only on MSNBC. 

(COMMERCIAL BREAK)

O'DONNELL:  Coming up, spying is legal in the war on terror, so says a former White House adviser who now accuses Democrats of playing politics with American security, when HARDBALL returns.

(COMMERCIAL BREAK)

O'DONNELL:  Welcome back to HARDBALL.  We just heard two lawyers who represent clients in some of the country's biggest terrorism cases.  They are challenge the N.S.A. and the Bush administration about using illegal wiretaps against suspects who are charged with having ties to al Qaeda. 

To respond to some of these charges, I'm joined by Ron Christie, a former White House adviser under President George W. Bush, and author of a new book called “Black in the White House.”  Ron, thank you for joining us.  What do you make of this now that the President of the United States could be sued by convicted terrorists? 

RON CHRISTIE, FMR. BUSH ADVISER:  In one word, it's insane.  The president had legal authority under constitution and under legal statutes and precedent that allows him to have these warrantless surveillance for foreign intelligence purposes. 

Now you're going to have people from al Qaeda, people who are in prison trying to blow up American citizens, to harm our way of life, who are trying to use our courts against us and using our way of life and our legal system against us.  They don't have the legal standing to do so and ultimately I believe that the courts will reject their attempt to sue the President of the United States. 

O'DONNELL:  In fact, this one man who tried to blow up the Brooklyn Bridge admitted that he tried to blow up the Brooklyn Bridge.  His lawyer says he's going to now civilly sue the President of the United States.  Is this the president's worst nightmare? 

CHRISTIE:  I don't think it's the president's worst nightmare.  I think it's a nightmare for those who are in the National Security Agency, who are now subject to the possibility that those who want to look at the means and methods of the way the United States gathers and disseminates intelligence. 

The New York Times broke this story the other week, they have been talking about a very highly classified program.  What we need to do here is look to ensure, first of all, that our national safety safeguards have not been compromised.  If these folks want to file these frivolous lawsuits, that's fine, but it shouldn't give them a right to have a fishing expedition to use classified information to try to exonerate their client. 

O'DONNELL:  The power that this administration is using is aggressive and it is unprecedented to some degree and Vice President defended this power to some degree, saying it's no accident we haven't had another attack. 

He recently told reporters, quote, “Either we are serious about fighting the war on terror or we're not.  Either we believe there are individuals out there doing everything they can to try to launch more attacks, to try to get even deadlier weapons to use against us, or we don't. 

The president and I believe very deeply that there is a hell of a threat that is there for anybody who wants to look at it.  That is our job and our responsibility given our job to do everything in our power to defeat the terrorists and that's exactly what we're doing.”

Given that argument by the vice-president and the president, Arlen Specter, the Republican Chairman of the Senate Judiciary Committee has said he is going to have hearings on this in February.  He says, “There may be legislation which will come out of these hearings that will restrict this president's power.” 

The president may face a backlash. 

CHRISTIE:  I don't believe that's true Norah.  To use the terminology you used a second ago, this is not unprecedented.  Aggressive, yes, but not unprecedented.  You go all the way back to 1979 when the FISA statute came on, President Carter's attorney general said that this was a legal authority for the president to conduct these searches. 

President Clinton with the Aldrich Ames spy case used the same ability to use electronic monitoring for a foreign intelligence purpose.  It's not unprecedented. 

The administration is being very aggressive to make sure that those who are trying to harm this country are not in a position to do so.  And that they can get an intercept, they can use other intelligence gathering mechanisms to safeguarding the American people, they're going to do it and they're going to do it within the law. 

O'DONNELL:  The president believes he has legal standing.  But clearly this will also be a political argument.  I notice that you put out a statement today that Democrats are trying to put partisan politics in front of security of America. 

Do you believe ultimately though that when Americans look at this that they are going to say, I am concerned about my civil liberties? 

CHRISTIE:  I think Americans are going to look at this and they recognize the president has been explicit.  He wanted a very narrow program that would only go after al Qaeda terrorists and those folks who are supporting them. 

At the end of the day the American people will say way to go, George Bush, thank you for safeguarding us, thank you for insuring that you are doing it in a legal way under the constitution, but put these terrorists where they belong, in jail. 

O'DONNELL:  When they find out these terrorists are trying to sue this president or perhaps trying to be set free on these secret wiretaps? 

CHRISTIE:  I think as you suggest there are now those who are trying to use this for partisan political purposes.  Those people will face a backlash. 

The president is trying to safeguard the American people.  Anybody else from any other political party or any other reason who is trying to use this for partisan political purposes, I think they are going to face the backlash, not George Bush.

O'DONNELL:  Big issue in 2006. Ron Christie, thank you very much for joining us. 

After the break, more reaction to the domestic spying story from Rand Beers.  The former senior director at the National Security Council.  You're watching HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

O'DONNELL:  Joining us and after the break, more reaction to the domestic spying story from Rand Beers, the former senior director at the National Security Council.  You're watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

O'DONNELL:  Welcome back to HARDBALL.  For more on the brewing legal challenges to the NSA's secret domestic surveillance program, we turned to Rand Beers.  He's a former senior director for combating terrorism on the National Security Council under President Bush. 

He quit his job in 2003 and became an adviser for Senator John Kerry's presidential campaign, claiming at the time, that the Bush administration was making America less secure. 

You have been in counterterrorism for most of your career.  When you heard about this FISA program and secret spying, did you know about it since you were in the White House?

RAND BEERS, FORMER INTERNATIONAL SECURITY COUNCIL STAFFER:  No, I did not know about it while I was in the White House.

O'DONNELL:  And what's your reaction finding out about it?

BEERS:  My reaction is that I'm concerned.  Certainly, the president has the authority to look for foreign agents.  That's not the question.  The question is, how did he go about this?  Was he simply using a vacuum cleaner to look in every nook and cranny and then determining who they were?  If he went that way, then I think he's overstepped the boundaries that we would except for a president who was adhering to the constitution to follow.

O'DONNELL:  The White House said yesterday, “This is not about people making calls to set up Little League games or to attend a pot-luck dinner.  This is about bad guys talking to bad guys.”  Most Americans say, “That sounds legit, we've got to catch these terrorists.  We're looking at people who are in the United States who may be affiliates of al Qaeda talking to people overseas.  What's so bad about that?”

BEERS:  There's nothing wrong with that.  That's what FISA is about.  FISA is about looking at people who are agents of foreign powers, in this case al Qaeda.  But if we don't know that that's the only thing that was being listened to, and we don't know that yet, then we have a problem that we need to understand.

O'DONNELL:  So interesting.  So you think when you read about this, and one of course, the very interesting stories we learned from “The New York Times” is that there's a lot of data-mining going on.  And in fact, NSA has been working with American phone companies at the switches and picking up a lot of information. 

So you think that they may have been fishing around and getting a lot of other information, other than conversations between suspected al Qaeda people?

BEERS:  It would appear to be that that's the case, yes.  That's what I think was going on.  Otherwise the procedures were well in place and could have easily been administered without having to go this.

O'DONNELL:  Well if that's true, then that's a huge story.  Then they are spying on Americans, or could have been without the proper safeguards.

BEERS:  That's right.  And what they do with that information is what we should all be concerned about.

O'DONNELL:  So what do you think happens then when this becomes huge hearings in the Senate?  There are not just Democrats concerned about this on Capitol Hill, but Republicans concerned about that on Capitol Hill.  You think this is going to turn out to be a blockbuster of a story, well through the first couple of months of 2006?

BEERS:  I think it's going to last well into January and probably into February, and I hope that Congress provides the appropriate oversight and I hope that we can resolve this in a legal fashion.  I don't want to see the FISA Act trashed, but I do want Americans to be safeguarded.

O'DONNELL:  Now some people may say you're a partisan.  You quit the Bush White House and you went to work Senator John Kerry.  At the time during the campaign, you made the charge that this president has made America less secure.  But the president looks like using this, that he's extremely aggressive, he's extremely on the offensive using this.  Isn't he trying to make America more secure?

BEERS:  I believe that the president thinks he is trying to make America more secure.  And the question is, are we making America more secure in a way that diminishes our place in the world, that diminishes our ability to marshal forces, to go against terrorists around the world. 

This on top of other actions that the president has taken with respect to torture and other things like that create an image abroad that creates a problem for us.  We've got to find the right balance in order to be able to proceed appropriately.

O'DONNELL:  Finally because you were the former senior director at the National Security Council under President Bush, I have to ask you about Osama bin Laden because we're going to be talking about it in the next segment.  Do you believe we're going to find him anytime soon?

BEERS:  I think if we find him, it will be an accident or a piece of good fortune.

O'DONNELL:  Why?  Why do you say that?

BEERS:  Well because I don't think at this particular point now that he's been out and about, that we have the ability to cover the area in which he could be operating. 

We have, together with our friends in Pakistan, sought to diminish the area in which he was operating.  But as time has gone on and on, I am less of the view that we can do that effectively enough to be able to say that we're actually closing the loop on him.  So I think if we find him, it will be his mistake or our good fortune.

O'DONNELL:  All right.  Well thank you, Rand Beers.

And up next, his mission in Afghanistan was to find and destroy Osama bin Laden and his al Qaeda men.  And at one point, he knew exactly where bin Laden was.  So what went wrong?  We'll talk to a top CIA field commander who was there in Afghanistan.  You're watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

(STOCK MARKET REPORT)

O'DONNELL:  Welcome back to HARDBALL.  More than four years after 9/11, Osama bin Laden remains nowhere to be found today, despite the president's pledge early on to bring him to justice.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  And there is an old poster out West, as I recall that said, “Wanted: Dead or Alive.”

(END VIDEO CLIP)

O'DONNELL:  But now an explosive new book from a former top CIA operative says bin Laden got away because the military wouldn't give him the forces he needed to corner the terror leader in the mountains of Afghanistan. 

Gary Berntsen is the author of “Jawbreaker: The attack on bin Laden and al Qaeda.  A personal by the CIA's key field commander.”  And he joins me now from New York.  Gary, thank you for joining me.

GARY BERNTSEN, FORMER CIA FIELD OFFICER:  Good evening, Norah.

O'DONNELL:  You make some pretty strong charges in this book against military commanders and the CIA.  You claim that we had bin Laden cornered and that we didn't go after him.  What proof do you have of that?

BERNTSEN:  Well, we were making efforts against him.  I'd like to start with the fact that I led the team in Tanzania after the bombings of those embassies in East Africa.  I was on the ground in Afghanistan a year before 11 September, part of a team trying to capture a key bin Laden lieutenant.  And of course I was sent into Eastern Afghanistan to lead CIA's largest team that was there.  So.

O'DONNELL:  OK, but what about Afghanistan and what about Tora Bora?

BERNTSEN:  With Tora Bora, it began, the final portion of that operation began after we seized the capital, Kabul.  I sent an eight-man team down into Jalalabad.  From Jalalabad, they moved down south right up against the mountains there, where Tora Bora was back up in the mountains.

I inserted a four-man team with 10 Afghan guides.  They got up on a mountain top over about 800-to-1000 al Qaeda members that had fallen back there.  We began strikes on them.  We conducted an offensive operations against them.  NSF team came in and helped us, and eventually Delta Force would come in and support the effort.

O'DONNELL:  But how—you've made the claim that we had bin Laden cornered and that we failed to get him.  What proof do you have? 

BERNTSEN:  We had locations on him, we had human source reporting which had proved reliable throughout the war.  And that is why we won the war so rapidly.  We had picked up a radio off of a dead al Qaeda member and we're listening to bin Laden pray with his people, apologize to his people for bringing them in there. 

I had CIA's top Arabic linguist with me, who had listened to bin Laden's for four years.  We threw a 15,000-pound Blue 82 at them and then we had B52's conduct strikes on the same areas where he knew he was.  He was willing to constantly sacrifice the lives of young Muslims to save his own skin.

O'DONNELL:  You have said, “I knew exactly where he was.”

BERNTSEN:  Yes, we did know exactly.

O'DONNELL:  So why didn't you and his team go get him?

BERNTSEN:  Well of course there was quite a bit of fighting going on. 

We had about 2,000 Afghan allies that were the Eastern Alliance, which was

created.  There were gun fights, there were gun battles.  We were trying to

·         we moved up the mountains, you know, with these Afghans.

The Afghans were less than reliable and this is why I was calling for ground forces.  And I called for, you know, 600-to-800 rangers to be inserted in there, and had 600-to-800 rangers been inserted, we probably would have ended the thing.

O'DONNELL:  So you called for backup and you didn't get it?

BERNTSEN:  Well the point was, that wasn't my call in the end.  I made the request in the first two or three days of December.  We initiated that operation.  We inserted our team in late November into Jalalabad there.

O'DONNELL:  So did General Tommy Franks, the four-star commander, did he deny you those rangers that you requested?

BERNTSEN:  Well, I requested the rangers directly from the commander of JSOC, who was on the ground out there.  And of course, their decision was not to do that.  They were pleased with the fact that we were killing several hundred of them a day.

The problem is this: when you are fighting terrorists, success for the terrorists is not defeating us on the battlefield, it's escaping.  And I was trying to make sure that we eliminated every single one of them.  And in that case, we didn't. 

We killed quite a large number of bin Laden's force.  We killed 75 percent of the people there.  He did cross the border.  You may recall that 130 of them were captured by the Pakistanis on the back side of Tora Bora, but bin Laden and his element were able to escape.

O'DONNELL:  You were on the ground, Gary, and we understand that, but General Tommy Franks, who's now retired, says that you are wrong.

BERNTSEN:  Well, I was the guy on the ground.

O'DONNELL:  Well he says this, and let me just put up, because we called him today.  He wouldn't comment, but he referred us to his comments that he made last year. 

And he said, quote, “We don't know to this day whether Mr. bin Laden was at Tora Bora in December 2001.  Some intelligence sources said he was.  Others indicated he was in Pakistan at the time; still others suggested he was in Kashmir.  Tora Bora was teaming with Taliban and al Qaeda operatives, many of whom were killed or captured, but Mr. bin Laden was never within our grasp.”

Should we believe you or the four-star general?

BERNTSEN:  General Franks is a great American.  I, however, was on the ground running the intelligence collection operation.

O'DONNELL:  So, you're with the CIA?

BERNTSEN:  Correct.

O'DONNELL:  And the four-star commander, General Tommy Franks, says you're wrong, he wasn't within our grasp.  Why was there this battle going on between the CIA and the military?  Is this part of the problem about why we didn't get bin Laden and why we don't have him?

BERNTSEN:  The U.S. military, the soldiers that were with us on the ground there, fought like lions.  They did a wonderful job.  The problem was, was Tora Bora was a very, very difficult place to access.  It was an area that was far away, it was high, it was cold.  It would have been very difficult and it would have been risky to put soldiers in. 

There likely would have been significant casualties.  The fact is is no one, whether they're in the CIA or the military gets ahead taking risks.  It would have been a risky endeavor.  But I put my four men in there.  They went up.  And actually two of my men were CIA officers and two of them were JSOC officers that had been assigned over to me.  This is a fact of the war. 

Again, I was on the ground there.  And with all due respect to those folks in CENTCOM, they provided us with hundreds of air strikes.  They threw in a Blue 82 at our request.

O'DONNELL:  Which is a giant bunker-busting bomb.

BERNTSEN:  A 15,000-pound device.  There were only three of them used in the war, two of them in Mazar-e Sharif, one in Tora Bora.  We weren't throwing it at a 7-Eleven.

O'DONNELL:  Right, you thought it was...

BERNTSEN:  ... there was only one left in the inventory.  It was the only one left in the inventory.

O'DONNELL:  You know, I remember that, Gary, at the time, because I actually was with Rumsfeld in December of that year.  I went to Bagram with him and I know of course, we did not have many troops on the ground at that time and it was largely an air-strikes operation.

BERNTSEN:  Difficult operation and again, those men in the United States Armed Forces that fought there, fought like lions.  I was proud of them.

O'DONNELL:  It's just interesting, Gary, because the claims have been out there, and this was fought over in the 2004 campaign because Senator John Kerry said repeatedly, “We had bin Laden cornered in Tora Bora.  And this president relied on troops on the ground instead of our military forces.”  And yet, he couldn't make that charge stick.

BERNTSEN:  Well, the truth is, it relied on the CIA and we did.  Actually, we went into a province.  Look, eight Americans went into a province in complete chaos.  They went down into a very dangerous area.  They then, four of them scaled the mountaintop to get over, between 800-to-1,000 of the enemy.  And they were incredibly brave men.  This is not a story that—you know—it was mentioned of course in Bob Woodward's book, “Bush at War.”

Guests:  Nick Calio, Ron Reagan

BERNTSEN:  And they were incredibly brave men.  This is not a story that—you know, it was mentioned, of course, in Bob Woodward's book, “Bush At War.” 

O'DONNELL:  Right.  Gary, let me as you, because we're talking about that key date, December, 2001, two months after September 11th.  And I want to play for you a clip of President Bush just about that time.  He was asked where Osama bin Laden is, and here's what the president said. 

(BEGIN VIDEO CLIP)

BUSH:  So we don't know whether he's in a cave with the door shut or a cave with the door open.  We just don't know.  There's all kinds of reports and all kinds of speculation.  But the thing we are certain about is that he's on the run, that he's hiding in caves, if hiding at all.  And the other thing I'm certain about is we'll bring him to justice. 

(END VIDEO CLIP)

O'DONNELL:  So, Gary, you say that you knew where Osama bin Laden was and the president says he was in a cave with a door on it. 

BERNTSEN:  Well, let me say this.  We tracked bin Laden with our reporting from Kabul, down to Nangarhar Province, into Jalalbad, down into the mountains.  We had a steady stream.  But, you know, every once in a while you get a report that says he's off, you know, in left field. 

Here at this place or that place, but when you get a line of reporting, a stream of it, and we're marking it on a map, we can see consistently, you know, which way he's moving and from multiple sources.  And then, of course, we were listening to his voice on an unencrypted radio. 

O'DONNELL:  Can I as you, Gary, are you a Democrat? 

BERNTSEN:  No, I'm a Republican.  And I'm a loyal supporter of the president and I think the president is doing a good job in the fight on terrorism. 

O'DONNELL:  So do you think though that we're going to catch—are any closer to catching Osama bin Laden today? 

BERNTSEN:  I think we will.  And I don't think it will be an error either.  There are people making significant errors—I mean, making significant efforts at this point in time to try to capture him.  And sooner or later we'll get a break. 

O'DONNELL:  But if you knew, Gary, where Osama bin Laden was ...

BERNTSEN:  At that point, yes.

O'DONNELL:  ... and there was another CIA field commander tomorrow who calls up and says I know where he is, what's to say that this mistake won't be repeated again? 

BERNTSEN:  Well, I think that, you know, there were—you know, if you looked at the Afghan war—and it was a flawed masterpiece.  A lot of things went well.  A small number of Americans did fabulous things on the ground against significant odds. 

And, you know, it's unfortunate that we didn't finish it there.  A lot of people were trying.  You have to remember, there's a lot of bureaucracy in between that key field commander, whether he be an agency officer or a military officer, and the president.  The president has good intentions.  He's trying to do this.  He's trying to end this.  It's not easy.  It's not easy.  I did this for 23 years. 

O'DONNELL:  All right.  Gary, thank you so much.  Your book, “Jawbreaker,” is a fascinating read.  We very much appreciate it. 

BERNTSEN:  Thank you.

O'DONNELL:  And coming up, a look ahead to 2006.  What can the president do so that his agenda is not dominated by the domestic spying story ,the CIA case, the Abramoff scandal and Senator Tom DeLay's trial?  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

O'DONNELL:  Coming up, new year, new you, but for President Bush, will the scandals of 2005 blunt his bounce in the polls?  When HARDBALL RETURNS.

(COMMERCIAL BREAK)

O'DONNELL:  And we are back here to talk about what we're calling the bag of scandals of Washington.  Our MSNBC political analysts Ron Reagan and Nick Calio, the president's top lobbyist on Capitol Hill, working in the White House.  Thank you, both of you.

Let me first get your take on this NSA spying story.  And today, what we have learned is that some of the lawyers for these rMDNM_convicted terrorists want to sue President Bush.  Is this going to continue to be a headache for him in 2006? 

NICK CALIO, FMR. BUSH WHITE HOUSE ADVISER:  Oh, I think it will continue to be a headache, Norah, to the degree that he'll have to deal with it.  But I think the president will probably engage the Congress on the issue. 

I think he believes and I believe that he had the legal authority to do what he did and I think some perspective is in order too, because this is not about spying on you or spying on me.  This is about following suspected terrorists with known ties to al Qaeda. 

And I think the American people support that.  And I don't think they're going to get caught up in all of the legalisms that people are talking about right now. 

But, again, if I were the president, I would engage the Congress on this.  The FISA law, many people think, is out of date.  It was, you know, written during the Cold War and meant for the Cold War.  Technical innovations have clearly outpaced it and the president ought to go to the Congress to get the changes that are necessary. 

RON REAGAN, MSNBC POLITICAL ANALYST:  The president should have gone to the Congress, Norah, in the first place to get the changes, if there are changes needed in FISA, and that would have forestalled this whole problem that he's got.  And we don't know that the administration hasn't been spying on you and me, as it were. 

They have apparently been tapping into these switch boxes at the major, you know, telephone companies and they have been spying on everybody, as far as we know.  So he has got a big problem here in Congress, and despite the fact that some of the people in Congress acquiesced in this, they are none too happy about the end run that the administration has done here. 

O'DONNELL:  Ron, there's certainly a legal argument that the president is making, and he says “absolutely I had the power to do this,” not only because of the congressional resolution after 9/11, but also because of my inherent authority under Article 2 of the Constitution. 

Given that, there is going to be an argument about the legality of this.  But the politics of this—some Democrats are worrying that if they make a lot out of this, it's once again going to backfire on them because when it comes to national security, the American people trust the president. 

REAGAN:  Well, the American people are not crazy about the idea of their government spying on them, frankly, whether they're Republicans or Democrats.  There are a lot of Republicans who are very upset about this, who don't like that idea at all. 

The president does have a big political problem here.  As usual, there are some Democrats who are going to be timid about this whole thing and not be as aggressive as they should be.  But that's just because the Democrats are being Democrats. 

But there are others who will make an issue of this and who will press for investigations, as there should be. 

O'DONNELL:  But, Nick, you know ...

REAGAN:  We need to know exactly what's been happening here. 

O'DONNELL:  But, Nick, there are comments that the Republicans take advantage of, which is, you know, the Democratic leader in the Senate saying we killed the Patriot Act.  I mean that's—they backtracked after saying that, but when it comes to an issue of protecting American, how do Democrats fare?

CALIO:  Well, I think the Democrats run a risk here regardless of what Ron says.  They are perceived to be weak on national security.  If this were about investigating me or you or Ron it would be one thing, but people understand, post-September 11 it's a different world.  We need to deal with it that way. 

They are all pretty comfortable, however jealously we guard our civil liberties, they understand it's a different world and they don't want more attacks on our shores and they believe that the president should do what he has to do to stop them. 

O'DONNELL:  OK.  We'll have more on our bag-o-scandals, as we're calling it, with Nick Calio and Ron Reagan when we come back.  A reminder, for the best political debate online go to hardblogger, our political blog site.  Now you can download, just like Nick Calio, podcasts of HARDBALL.  Just go to our Web site, hardball.MSNBC.com.

(COMMERCIAL BREAK)

O'DONNELL:  We are back with former legislative assistant to President Bush, Nick Calio and MSNBC political analyst Ron Reagan.  Let's take a look at Karl Rove and what 2006 will bring for Karl Rove. 

The special prosecutor Patrick Fitzgerald continues his investigation.  Ron, do you think Karl's story that Vivica Novak and the conversation she had with Rove's attorney suddenly jogged his memory and that's why he corrected the record with the grand jury? 

REAGAN:  Well, one is hard pressed to read someone's mind.  Particularly someone as opaque as Karl Rove.  Applying common sense to it, no, I don't think so.  It took a while for him to jog his memory, didn't it? 

Vivica was supposed to have talked to Mr. Luskin back in May.  It wasn't until later in the summer or early fall that Karl Rove's memory was, in fact, jogged enough to bring this to the attention of the prosecutor. 

That doesn't mean he's going to be indicted.  We don't know that yet. 

We don't know all the facts we'll have to wait and see there. 

O'DONNELL:  Nick, the argument, of course, that Karl Rove and his associates have made is the reason he wasn't clear in the first grand jury appearance, he says, I never talked to Matt Cooper about Valerie Plame, no way.  Then it was ten months later, when we he went back to the grand jury for the second time, he corrected the record and said in fact I did talk to Matt Cooper, I misremembered. 

Some people say, ten months to misremember something.  Why didn't he go back and correct the record sooner, and does this out-to-lunch theory, oh I just forgot, that it doesn't add up, and that the special prosecutor is going to say, he was obstructing justice? 

CALIO:  I subscribe to the out-to-lunch theory. 

O'DONNELL:  I agree, sometimes you are. 

CALIO:  I've been there.  First of all, I know Karl so I trust Karl.  I think when you are in government and in certain jobs, you are getting hundreds of emails and phone calls, not getting much sleep, running a campaign. 

Can you forget things that's just a small part of a conversation?  Absolutely.  I've gone back over some of my notes and been shocked at what I didn't remember happened actually.  I do believe the theory. 

REAGAN:  Norah, this wasn't where we went to lunch on Thursday.  There was a concerted interest in the White House about Joe Wilson and what he was saying about the Bush Administration and the run up to the war. 

There was a decision made to begin talking about his wife for some reason, who ironically enough was involved with weapons of mass destruction for the CIA.  So in fact you are outing an agent who is responsible in some part for the national security in order to protect your, what, fight for national security.  It doesn't make a lot of sense. 

CALIO:  Ron, I'd have to say that there probably wasn't as much attention paid to the Valerie Plame in the White House as you think.  There were  a lot of issues occupying the White House. 

REAGAN:  That's's for sure.  Why were they talking about her at all? 

Why was Karl Rove talking to anybody about Valerie Plame?

O'DONNELL:  I want to turn, because there is another big story of 2006 that's coming up, and get your prediction on what's the Jack Abramoff scandal, which largely touches members of congress.  We now that Abramoff might be moving to cut a deal with the Justice Department. 

Nick, you've worked in the White House, you've dealt with a lot of members of congress, do you think a lot of members are scared? 

CALIO:  I don't think that a lot of members are scared.  I think some are scared and some probably should be.  I think Jack cast a very wide net.  I also think that over time, we are going to find that most members didn't know what was actually going on. 

This could be another out-to-lunch theory.  Jack did a lot of things, put a lot of things in email.  What he did was breathtakingly wrong.  I think that he's's going to catch a lot of people in his net.  What's scary about it is if you look at those emails and what he said, how do you know all of it is the truth? 

O'DONNELL:  You don't really want to be in the position of defending Jack Abramoff. 

CALIO:  I'm not defending him. I think I'm going after him.  I think what he put in those emails, a lot of it was puffery for want of a better term.  He said those things. 

Members have no way to protect themselves against that.  He's writing emails to third parties trying to impress clients.  I don't buy a lot of it.  I think a lot of it was not necessarily true.  Unfortunately it's going to catch a lot of people up in the net.  It's going to stop a lot of people from focusing on issues.

O'DONNELL:  Clearly, there's going to be a lot on the president's plate in 2006.  We know now he's down in Crawford, Texas.  The White House let us know he's brought in some books with us.  Let's take a look at what the president, someone who doesn't like to accept criticism has been reading at night. 

Apparently he has been reading “Imperial Grunts,” by Robert Kaplan.  In that book, the author writes, “The decision to invest al-Fallujah and then pull out just as victory was within reach demonstrated both the fecklessness and incoherence of the Bush administration.  A case cannot be made for launching a full-scale assault only to reverse it because of political pressures that were easily foreseeable in the first place.” 

REAGAN:  Do you think the president's is highlighting that passage in the book so he can refer back to it? 

CALIO:  Ron, he might have ripped it out. 

O'DONNELL:  But the point is the president is getting ready for 2006 is reading some stuff apparently critical of him.  We'll see what that means in 2006.  Thank you to Nick Calio and Ron Reagan. 

Join us again tomorrow night at 5:00 and 7:00 eastern for more HARDBALL.  Right now it's time for “THE ABRAMS REPORT,” which tonight is hosted by Lisa Daniels.

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

END   

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