updated 1/3/2006 10:56:55 AM ET 2006-01-03T15:56:55

Guest: Shauna Johnson, David Rivkin, Stan Brand, Bob Hager, Evan Thomas

CHRIS MATTHEWS, HOST:  The president said he did not break the law when he approved wiretaps following 9/11.  He said he did not exceed his congressional authorization to use all necessary force to fight terrorism.  But will this denial pass muster with a country proud of its freedoms, protective of its Bill of Rights in peacetime and in war? 

Let's play HARDBALL.

Good evening.  I'm Chris Matthews. 

Welcome to HARDBALL and to the new year. 

We begin this year with two major stories about presidential power and responsibility. 

Tonight, we'll bring you an update on the NSA and the CIA leak stories which are still popping. 

Yesterday, the “New York Times” reported that when James Comey, deputy attorney general in 2004, objected to that NSA program because he was concerned about the legality and oversight, administration officials Andrew Card and Alberto Gonzales went to see Attorney General John Ashcroft, who was then in the hospital recovering from surgery, to try to get his approval.

And today “Newsweek” reports that then-Attorney General John Ashcroft refused to overrule Comey, while “Time” magazine reports the president bypassed top Justice Department attorneys who usually review top-secret intelligence programs. 

Sunday, for the third time in two weeks, President Bush strongly defended the secret NSA surveillance program. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  This is a limited program designed to prevent attacks on the United States of America, and I repeat, limited. 

I think most Americans understand the need to find out what the enemy is thinking, and that's what we're doing. 

(END VIDEO CLIP)

MATTHEWS:  Republican Senator Arlen Specter, who chairs the Senate Judiciary Committee, has called for hearings into the NSA program, so this promises to be a political blockbuster when lawmakers return here to Washington. 

NBC's Justice Department correspondent Pete Williams joins us from our D.C. bureau with more on this story. 

Pete, this story has more legs than I would have thought.  Is the president making his case well with the American people that he was only using this as a limited effort to try to catch people in the country who were actually working with al Qaeda? 

PETE WILLIAMS, NBC NEWS JUSTICE DEPARTMENT CORRESPONDENT:  That's been the administration's argument, Chris. 

Some of it is—you know, it's a hard program to defend, because we don't know the extent of it or precisely how it worked. 

James Risen of the “New York Times,” the reporter who initially got this leak and was ultimately the author, the main author of the story, along with Eric Lichtblau in the “New York Times,” claims that initially the National Security Agency sought permission only to look at international phone calls that originated in one country, ended in another, but happened to be routed through the U.S., and then ultimately used that access to the phone network to begin to look at calls made by al Qaeda—suspected al Qaeda people into the U.S.

Now, the legal justification they make, Chris, is twofold. 

First, they say, the president has a constitutional authority as commander-in-chief to do this.  And secondly, they say, when Congress authorized the use of military force, which was right after 9/11, it gave the president whatever authority he needed to do in wartime. 

Intelligence gathering, the administration argued, is incident to making war and the president has authority under that law as well.  That's been their legal argument. 

MATTHEWS:  So all...

WILLIAMS:  And I must say, you know, I think there are—it's surprising a little bit how the legal scholars have reacted to this. 

You know, the ACLU obviously is alarmed, the people who track electronic privacy are alarmed.  But there are some legal scholars in the middle who say, you know, the president has a case. 

MATTHEWS:  Let me ask you about the opposition within the government.

What's stunning to me, I guess, is when you read about how these people—even Ashcroft, a hard-line conservative not known for his civil liberty sort of sensitivities, saying he didn't want to go along with this. 

You've got Comey, the number two guy, the guy who was acting as A.G.  saying he didn't want to sign on to it.  And you hear about these other reports coming out of “Time” magazine. 

It wasn't like the president was even getting support from his own people for this effort. 

WILLIAMS:  Well, I think that's something we're going to learn more about, Chris. 

There does appear to be something here where both Deputy Attorney General Comey and Attorney General Ashcroft were concerned about technical aspects of it and concerned about how it was being carried out, the sort of pretext that the NSA needed to start monitoring someone.

But once those things were worked out, my understanding is from talking to current and former Justice Department officials that they then agreed to the program.

And one former associate of the deputy attorney general's said today that at one point Comey was among those officials urging the “New York Times” not to run this story, that he ultimately accepted the legal basis for the program after his initial objections were resolved. 

MATTHEWS:  OK, Pete.  Thank you very much. 

Pete Williams at the Justice Department. 

Before we go to—go on to the latest on the NSA spying story, a rescue operation, as everyone who's been following MSNBC this afternoon knows, is going on right now in West Virginia, where 13 miners remain trapped in a coal mine. 

Metro News Radio reporter Shauna Johnson joins us now from Charleston, West Virginia.

Shauna, is it Shana or Shauna?

SHAUNA JOHNSON, METRO NEWS RADIO REPORTER:  It's Shauna.

MATTHEWS:  Shauna, thank you very much for joining us. 

These guys—I mean, working today down—at 6:00 in the morning there, they were down there working in the mine and there was this accident. 

Can you give us an update on the situation down there? 

JOHNSON:  Well, these workers, they were part of the morning shift and they had gone in thinking that they were going to work eight hours.  And right now we're more than nine hours after the fact and there's been no communication with these miners. 

The explosion happened sometime before seven o'clock this morning.  But because of the delay and the miners who made it out of the mine reporting it, it did not get called into a rescue operation area until about 7:30 this morning.

And since then, this rescue effort has been—they're mobilizing.  They had to wait for mine crews to come in, some as far away as Illinois to come into this remote area of West Virginia, to just even get—to get set up to go in. 

MATTHEWS:  Now, this is a deep mine, right?  They're pretty far down? 

JOHNSON:  It's a drift mine.  So they could be anywhere from—as far as a mile into the mine.  They'll just have to wait until they get in.

And as the operation begins, hopefully within the next couple of hours that these mine rescue teams start to go in, that they'll have to continually monitor the carbon monoxide levels there, because it is very dangerous at this point. 

Most of the rescue work will be done by hand.  They can't use heavy equipment because of the instability of the situation. 

MATTHEWS:  Now, do you know how these guys operate?  They have to clear the rubble—what do they have to do to get in to free these guys? 

JOHNSON:  The reports that we have is that there is a wall of debris, because after the initial explosion happened this morning, whatever that explosion was, four miners did try to go back in to get to these other 13 and a wall of debris stopped them.  So they had to turn around and leave again. 

MATTHEWS:  What do they need to bring in from outside?  Why can't the guys working in the mine who dig through that mine every day of their lives, why can't they do this job? 

JOHNSON:  Well, mine rescue is a specialized operation and there are entire teams that work specifically in this area, and at this point they want to just make sure everyone is safe. 

MATTHEWS:  OK.  Great. 

Thank you very much, Shauna Johnson, for joining us at this late notice. 

On the phone from West Virginia right now is MSNBC News analyst Bob Hager.  He joins us on the phone.

Bob, what can you figure out about the prospects for these poor 13 guys down there? 

ROBERT HAGER, NBC NEWS ANALYST:  Well, one thing, I'm not in West Virginia yet, I'm en route. 

But I would—Chris, this is very grim, it really is. 

First of all, mining is a very, very dangerous profession—not as dangerous as it once was, but still very, very dangerous. 

Mine rescue is dangerous.

And remember—I think everybody will recall two and a half years ago when the nine miners were trapped by a flood in that case in Lincoln Township, Pennsylvania, and miraculously they all lived.  After three days they were rescued. 

This looks at first glance as though it's a much more difficult situation.  They talk about that wall of debris. 

I mean, the key thing will be, can they drill down from the surface somehow?  But at the moment they don't even know where these people were when it happened so they don't know where to drill. 

The alternative then is to somehow work their way through that debris in the shaft that goes into the mountain. 

At any event, it all sounds very difficult and it has to be done—anywhere underground there's always explosive methane gas, so you have the danger of setting off another explosion. 

It's a very, very grim and difficult situation. 

MATTHEWS:  There was a situation a couple years ago where there were more guys killed going in than there were being rescued. 

HAGER:  You mean where the rescuers themselves...

(CROSSTALK)

MATTHEWS:  Second explosion, yes. 

HAGER:  ... then were killed going in? 

MATTHEWS:  Yes.

HAGER:  That's always a danger. 

I'll warn you too—we're going into a tunnel, you may lose me, we'll see.

But, you know, back in the 1970s these things were—I hate to say it

·         but commonplace and then they passed all kinds of new safety regulations.  Fortunately, there aren't nearly as many of them anymore.

But it's still—when something like this happens, my God, it's so hard to get at the—down that—through that shaft.

And the key thing will be, as they say, these early (UNINTELLIGIBLE) efforts to see how much rubble there is.  If they can do it through the shaft as opposed to drilling a new hole from the top, why, that's a much easier way to go, if it's possible, but it depends on how much debris there is there. 

MATTHEWS:  You know, I'm just struck again by toughness of life.  Here's these guys on a day—a lot of people are off today, it's a federal holiday—and here they are at six o'clock in the morning working the early shift a couple miles down into the ground.  What courageous guys to live to provide for their family that way.

Thank you very much...

HAGER:  Yes, absolutely. 

Rough life, I mean, in coal country.  And that's it, it's providing for their families, because people know it's dangerous when they volunteer to do it.  But it's good money and so generation after generation has gone down in spite of the dangers.

MATTHEWS:  OK.  Thanks, Bob.  It's great to be talking to you.  Bob Hager of NBC News. 

We'll be getting more on those trapped miners later in the hour. 

Now back to the NSA domestic spying story.  Let's bring in attorney Stan Brand, a former council to the House of Representatives, and David Rivkin, who was an assistant White House counsel to the first President Bush.  Thank you David for joining us.  Stan, I've known you for a long time.

You know, I've been away obviously over in Africa.  I've been telling people about what I've been doing over there, but I have learned a lot about life over there.  I have got to tell you and our situation in the world.

But this NSA story has, as we say in this business, legs, and I know Arlen Specter is investigating that, so that tells me something is up. 

The internal dissent within this administration, which on the outside seems like such a unitary operation.  Everybody agrees with the president or you're not a team player.  You're out the door.  Opposition to this decision by the president after 9-11 to use wiretaps on Americans, who may or may not be involved with these dangerous organizations. 

STAN BRAND, DEMOCRATIC ATTORNEY:  The setup to the story with Pete Williams indicates we're not sure how deep that dissent was, and I think the bigger story, Chris, is going to be the congressional confrontation with the executive branch over that, which has been going on really for 200 years.  And has a, you know, a preamble or a precedent in the Nixon administration. 

You have a one sentence war authorization, basically.  You have the foreign intelligence surveillance act, and the president, is making the argument basically that those—that law doesn't binds him, and that he has inherent authority.  That's a power I think that the Supreme Court hasn't really addressed, and we may get an answer to that.  We may not. 

MATTHEWS:  Well, who drafted a law passed by Congress after 9-11 that said to the president of the United States in a constitutional democracy like we have, or are lucky to have, use all necessary force?  All is a word.  What does all mean to you? 

BRAND:  Well, I don't know that it means everything that the president is asserting it means.  It's a one sentence resolution.  Tom Daschle wrote a piece that said they took the language United States out of that, implying that somehow they were trimming back what they thought the powers they were giving to the president. 

You know, in the Vietnam era what the Gulf of Tonkin Resolution was supposedly authorizing.  So that's going to be the fight.  That's his assertion.  How far he gets with that in the Congress is another question. 

MATTHEWS:  David, your view? 

Presidential authority in question.  Should the president of the United States—was he within his rights to decide after 9-11 that when he got the OK from Congress that meant wiretap? 

DAVID RIVKIN, FMR. ASST. BUSH 41 W.H. COUNSEL:  Absolutely.  Well, that meant not all wiretap.  We're talking about a very narrow use of his authority.  To gather what I call battlefield intelligence. 

This is fundamentally no different than breaking and tapping to German or Japanese military communications.  Remember, this is only intelligence involving at least on one side an al Qaeda based person, who is talking about future plans and dispositions.  Absolutely clear. 

MATTHEWS:  So you know that there was a restriction within the administration, to simply tap people who had contacts with al Qaeda?  You know that?  That was the restriction that they put on themselves? 

RIVKIN:  That is what they put. 

But let me make one points, Chris... 

MATTHEWS:  How do we know that was—who would have enforced that?  The attorney general? 

RIVKIN:  Well, this was the limit of a program, if you will, that was authorized and operated for 45 days.  But let me just tell you one thing... 

MATTHEWS:  But I don't want to get past this thing.  Who says that was limited?  Who limited it? 

RIVKIN:  The president worked out an authorization that everybody signed off, all the lawyers, White House lawyer, attorney general, and, by the way, I'm encouraged and I want to stress that.  I'm encouraged by the fact of this constructive tension within the executive branch.  I think you should encourage the critics who believe it. 

Unless you go to court, this executive branch is a monolith where everybody is marching in unison.  To me, this is wonderful, but you have debates and tensions and things work out.  I call it bureaucratic checks and balances.  That NSA may have different views than the Justice Department.  The CIA may have a different view.  This is another way of protecting liberty.  That is a good thing. 

MATTHEWS:  And how is it resolved? 

RIVKIN:  Well, I'm sure it was resolved in a way that made the critics comfortable and that probably was more a more narrowly tailored program, probably more internal oversight where people who are not involved in the collection looking at it. 

Again the notion, I find quite fantastic, that unless you get to court and you get a judge to look at something, this way lies tyranny.  That's just absurd.  The framers would have chuckled. 

MATTHEWS:  So this battle, as you say, has been going on for 200 years not just between Congress and the executive branch but over this question of civil liberties and national securities.  This is a creative tension you like.

RIVKIN:  Yes.

MATTHEWS:  The fight.  Every time we use the power of this presidency to defend this country be careful we don't knock down our own liberties.

BRAND:  Well, and it's a pendulum.  You know, and in wartime, it tends to swing towards the executive branch.  And in peacetime and in times of less threat, internationally, it tends to swing back.  That's why you get the FISA law enacted after the Vietnam War is over. 

MATTHEWS:  That was the law that required court approval? 

BRAND:  Right. 

And I agree with David, not every one of these is, you know, what we lawyers call justiceable.  This could be a political fight between the elected branches, and that is going to take place not necessarily in court, but in the public domain and in the Congress.

MATTHEWS:  You know where this issue—I want to ask you when we get back.  I think this issue strikes a chord with one group of people, people that live in the suburbs, people that read the papers.  They take the train to work.  They think about civil liberties.  They think about their kids and rights. 

You know, they have enough money on the table to live, not worry about that every day of their life, but they do worry about the rights in this country.  I watch Arlen Specter looking right at that community, and he's thinking I have got to respond to them.  And that's why I think he has jumped on this.

We'll be back with Stan Brand and David Rivkin in just a moment. 

You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We're back with Democratic Attorney Stan Brand and former President Bush, I guess, Republican Attorney David Rivkin. 

David, let's talk about the thing that most people care about, security.  I looked at a poll right before the last election for president, that roughly half the American people believe that only one of the two candidates could protect them.  That was a pretty hard case for John Kerry to deal with, but obviously people still trust President Bush on terrorism.  It's in every poll. 

Is this an area where he's justifiably credited with doing everything he could, including this limited wiretapping program, to protect the country? 

RIVKIN:  I think he is.  Remember, unlike most of his predecessors, he is personally engaged in this.  Remember, he is not trying to have any plausible deniability.  This is one issue in which he has got out very early once the story...

MATTHEWS:  Every Saturday he gives a speech.  About the fact that he did it and he didn't break the law.

RIVKIN:  And he didn't break the law, but I think he really passionately believes in his heart of hearts.  And look the American people are very wise, and I am going to credit for it.  Over 60 percent of American people that this is justified.  They might have a point. 

It's not the faceless government versus individual liberty.  It's really out individual liberty versus our collective liberty.  It's your liberty one way versus your liberty not to be killed the other way.  And it's a tough balance, but let's not caricature it. 

MATTHEWS:  Who is doing that? 

RIVKIN:  Some of the critics.  And let me be bipartisan, some Republicans and some Democrats.  You have made an interesting point, this is really a tension between two political branches.  This is not going to end up in court. 

This Congress versus the executive over this core issue.  If some members of Congress were not happy about what they brought in in the past because it was an intelligence program and they're trying to have a little bit of an institutional footprint.  I think hopefully will lead to a serious dialogue and maybe revision of FISA. 

MATTHEWS:  Why didn't the president change the law?  If the law said you had to get court approval for the wiretaps, why didn't he say let's change the law, it's too extreme a situation? 

BRAND:  I have to give him credit for making a bold argument.  What he basically said is I don't want to have to go to Congress and explain this to them, because I'd have to disclose all these things in the course of asking them to give me that power, so I asserted my power directly under the Constitution, that's the position every president has taken.

I give him credit, if nothing else, for being bold and direct.  He's not hiding behind the national security adviser, he's not hiding behind the vice-president in this one.  He's out front saying, I did this, I did it on purpose, and these are the reasons I did it for. 

MATTHEWS:  When's it going to end, this ability of the president to wiretap because he says he has the authority to do it?  When does it end, David?  When should it end?

RIVKIN:  It certainly should end when this war is over. 

MATTHEWS:  What war are you talking about?

RIVKIN:  I'm talking about war against al Qaeda, not metaphysical, sort of, existential war—

MATTHEWS:  How do you think that war is going to end? 

RIVKIN:  There's a nice, international law definition.  Once we reduce the ability of al Qaeda to project force, to engage in serious combat, yes, I do believe it.  Wars take a long time. 

MATTHEWS:  You are an optimist, my friend.  I just got back from Africa, watching the madrasas schools.  There was one right next to where we were staying.  They're learning to hate every day of their lives. 

RIVKIN:  In human history, we're at a period of long wars.  That to me does not suggest—

MATTHEWS:  I'm just curious.  I like to see these things written down, how much authority the president has, so that the new president comes in, he knows what the law is and he follows it.  He doesn't decide what the circumstances are and then decide what he's allowed to do. 

That's a little bit loosey-goosey for our system isn't it, what you're describing here? 

RIVKIN:  We have a situation where Congress has not updated FISA since 1978.  That is a Cold War era statute, it does not deal with new circumstances.  I hope people can channel their aggression and angst into a serious legislative effort. 

MATTHEWS:  I just think when you get into this question of how much power the president has, he shouldn't decide how much power he has.  Under our constitutional system, the Constitution decides, right? 

RIVKIN:  The Constitution decides, but the president, interpreting the Constitution in a time of war, certainly has permitable power. 

MATTHEWS:  As long as the names are long and Arab, a lot of people say fine, keep checking them out, but the minute they start doing the O'Briens and the McGees, and the whatever names, they're going to say wait a minute, that's a little different for them, isn't it? 

RIVKIN:  Remember, the president bears political accountability.  Just because he—

MATTHEWS:  That's what we do here, accountability.  Thank you very much, Stan Brand.  Thank you, David Rivkin. 

When we return, NBC's Andrea Mitchell and “Newsweek's” Evan Thomas on how the Bush administration expanded presidential powers since 9/11.  You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BUSH:  The N.S.A. program is one that listens to a few numbers, called from the outside of the United States in, of known al Qaeda or affiliate people.  I mean, in other words, the enemy is calling somebody and we want to know who they're calling and why. 

(END VIDEO CLIP)

MATTHEWS:  The fallout from the N.S.A. secret program to spy on Americans without court order has triggered a debate over presidential power in this country and whether the Bush administration has taken too much of it after 9/11. 

NBC's Chief Foreign Affairs Correspondent Andrea Mitchell is with us, along with “Newsweek's” Evan Thomas, who wrote the cover story this week, “How Much Power Should They Have?” 

Andrea, I've been away in Africa for two weeks and this story seems to have legs.  Why is it been such a big story in this country? 

ANDREA MITCHELL, NBC NEWS CHIEF FOREIGN AFFAIRS CORRESPONDENT:  Well, one of the things is that the Congress, I think after you left, was still seized with this issue, and contrary to what many people had expected, that again, when it's Bush and the war on terror, the president would be persuasive in arguing that he knows best, trust me. 

It's only limited as you heard him say just now, it's only incoming calls, they later corrected that to me it was outgoing as well and within the United States. 

But what congressional people were already reacting to was word from the hinterlands that people were a little concerned about this.  We have yet to see how things relate when people come back from the recess, but if the verdict is not in on the polling whether people believe this is necessary, whether it is increasing their security and how they want to handle this tradeoff.

An historic tradeoff, which Evan beautifully encapsulizes in his cover story in “Newsweek” the trade off between national security and personal privacy, as he traces back, this is going back to 1798 with John Adams, there have been encroachments by presidential—by presidents on individual liberty in times of war. 

Whether or not that actually leads to increased security is to be argued. 

MATTHEWS:  What put this on the front cover of your magazine this week, “Newsweek”? 

EVAN THOMAS, NEWSWEEK:  We do think it's an historic moment.  A coupe hundred years of presidents in times of crisis reaching out, giving a lot of power to themselves.  Inevitably, there's a reaction, first it starts with a bureaucracy, it's a little slow and then seeps into the public. 

You can trace this after Watergate, Vietnam, World War II, World War I, every time we have a war, presidents do this.  Eventually there's a reaction.  I think that reaction is beginning now. 

What's not clear is how severe it is, whether the president is going to get whapped back, but you can feel some emanations off of Capitol Hill, as often where it starts, that people are starting to say, hey, maybe the balance is a little bit out of whack here. 

MATTHEWS:  But the kind of people that care about civil liberties, and there is a subset of us who care a lot about it, people who are more civil liberties conscious, people who tend to be moderate Republicans, independents, Democrats of course.

I notice that Arlen Specter, who is very much a bellwether on this kind of thing, as chairman of the Judiciary Committee, he represents a purple state, Pennsylvania, and there's a lot of people in the suburbs of Philadelphia and Pittsburgh who really do care about civil liberties and I can tell you, and I just wonder like people worried about The Patriot Act. 

MITCHELL:  It's also libertarians by the way, so you have a subset of conservative Republicans who are very concerned about this indeed.  You heard Bill Safire yesterday on “Meet the Press.”

I think Specter is a bellwether.  And, as you point out, Pennsylvania is a really interesting state in terms of a lot of political cross currents.

Right now the administration is pressing Specter to give this up and let the intelligence community do this in secret.

And he's been arguing that this needs to be the Judiciary Committee. 

That there are major legal issues involved. 

One of the things that the White House probably is still resisting, but really needs to do, is be a little bit more out front, because it's not just a handful of cases.  It's at least 500 people at a time being eavesdropped upon.  And in fact, there were millions and millions of calls and e-mails that were swept up in this electronic vacuum cleaner. 

This is what has been reported in “Newsweek” and elsewhere is that there are a lot of calls that come in from Europe to Asia, and are switched internally in the United States.  And a lot of these Telecom switching systems take place here on U.S. soil. 

And what the U.S. administration negotiated with the Telecom companies was a trap door to get in and look at all of these switches.  So they were looking at millions and millions of communications. 

MATTHEWS: Well, I was reading, I was in European Canada, the “Times” account today, 500 taps? 

THOMAS:  Yes, that actually was “The New York Times” that first reported that. 

MATTHEWS:  Five hundred taps.  Does that mean there's 500 different people out there in this country who are dealing with al Qaeda? 

THOMAS:  Here's what's unclear.  It's unclear how much of this is a computer searching through, looking for key words, and how much it is a human being listening in on your phone conversations.  That's one thing that's still not clear. 

The other thing is that they really...

MATTHEWS:  I think in your account today I read in “Newsweek,” you're talking about a lot of it is just some computer contraption looking for the words bin Laden or something like that. 

THOMAS:  Right.  It's like a giant Google sort of search, you know, a word search.  So that's something that we don't know yet.  How much of it that's the computer, the machine doing it, and how much of it is actually a person.  So that's one problem. 

The other problem is when they say al Qaeda associates, are they talking about somebody who really is a threat to us or some friend of a friend of a friend down the line?  They're trying to create—look for patterns.  They are looking for needles in haystacks. 

MITCHELL:  And, Chris—Chris, one of the other things that haven't been acknowledged yet, first of all, it's a little disingenuous, as Evan was just pointing out, to say that, you know, you people want al Qaeda associates to be tapped.  Well, it's not at all clear that it's just al Qaeda associates at all, number one. 

Number two, what are they doing with the data?  As my colleague, Lisa Myers, reported on a similar Pentagon sweep with the Talon program, they didn't get rid of the data as they were supposed to.  So once they discovered that you aren't really relevant, do they get rid of it or do you become part of some database? 

MATTHEWS:  You know, I was walking through the streets of East Africa the other day.  You won't believe this.  It's stunning, we're talking about al Qaeda as some weird sort of thing out there.  You see a kid with a bin Laden baseball cap on.  You see a kid with a bin Laden t-shirt on.  You see a poster in the grocery store.  Bin Laden is like a hero out there. 

MITCHELL:  That's the other war we're losing. 

MATTHEWS:  And that war we are losing.  And it has nothing to do with state sponsored terrorism or Iraq or anything.  There's something on out there that we have got to deal with.

Well, anyway more with Andrea Mitchell and Evan Thomas when we return. 

Before we go to break, it's been called a crazy new year already with bad weather, floods and fires, and here's another example from southern California right now.  You're looking at live pictures of a swift water rescue underway. 

A car with as many as three people in it is submerged right now in Long Beach, as heavy rains continue to drench much of the state of California.  A highway police officer says a vehicle, that vehicle, veered off the Garden Grove Freeway and went into a flood controlled channel. 

We'll continue to watch that story and bring you the information on that life and death situation as we get it.  You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.  We're back with NBC News chief foreign affairs correspondent Andrea Mitchell and “Newsweek's” Evan Thomas. 

I ended the last conversation by reporting back in an informal way what I have seen over in East Africa in a Swahili part of eastern Africa, part of Kenya on the coast.  Just to see the Islamic culture, and how there is so much of a public adoration of bin Laden.  And they all know, obviously, what his connection was assumed to be in 9-11.

Andrea, you are the foreign affairs correspondent.  I just want to get that because that's what we're up against when the president is out there trying to deal with al Qaeda as a threat.  Not Iraq but al Qaeda. 

MITCHELL:  And what is even more remarkable is that Kenya suffered hideously from the attack sponsored by bin Laden on our embassies.  Most of the people who died in that attack in Nairobi were Kenyan nationals, who were working in our embassies.  Hundreds of people, families left without parents.  So that is the toll that bin Laden had wreaked upon Kenya itself.  Yet Kenya was a real source of recruits to al Qaeda.  And it continues to be. 

Bin Laden, by the way, we've not heard from since October of 2004 on audio or video, but there have been, during the time you were away, more recent communications from his top deputy, Ayman al-Zawahiri, and we don't know really who is operational right now in al Qaeda. 

But, of course, the president has been claiming that we have not suffered an attack precisely because of this expansion of presidential authority and intelligence gathering.  There's no way to know whether or not that's true. 

MATTHEWS:  Of course the bigger question of it is how many millions of people out in the world are becoming supporters of this mentality of terrorism, and the terrorism itself.  They're willing to say, yes.  They cheer when they hear about these horrors. 

THOMAS:  And Americans know it.  I mean, I think although there is a fight starting on Capitol Hill now and there is beginning to be some push back, I think most of the American people still support this kind of eavesdropping or are willing to give the president a lot of license to go pretty far. 

Yes, you can feel things changing somewhat, but we haven't gotten to the point where things have really changed.  There hasn't been a tipping point here.

MATTHEWS:  Have we gained anything from it?  Have we caught an e-mail, have we picked up something?  Is the president justified, do we know in saying, “It's because of these efforts, these hardball efforts that...”

THOMAS:  ... It's such a fascinating question, because you would think after over four years, more than the length of World War II, we would know about some great operation where they thwarted an attack.  And instead you get this list that the president trots out, which is pretty thin gruel.  It's a bunch of mokes (ph), basically, in Lackawanna and places like that, who are—you can't—and so, what have we actually done?

MATTHEWS:  Mokes?  I think they're mooks.  A general term for losers.  Let me go to something we know more about, this sort of generalized discussion here.  You're the expert on this, “Newsweek” is, covering this story.  The CIA leak case, is Karl Rove headed toward indictment?

THOMAS:  I don't think so, but the case won't go away.  It's sort of hanging out there still.  It sort of much be disquieting.

MATTHEWS:  That's interesting.  You don't think he's going to get indicted at this point.

THOMAS:  I don't, I don't, but I don't know.

MATTHEWS:  So much chatter out there.  Andrea, do you have any sense of this one yet?  This is Patrick Fitzgerald, who keeps his cards close to his chest.  Do we know yet if there's something happening here this week or next?

MITCHELL:  We don't know except that Karl Rove has not yet been officially cleared.  That's the only thing we know, that Fitzgerald is still looking at this.  One would think it's getting closer to resolution, but we don't know what the status is. 

But Rove is as active as ever inside the White House, although he recently lost a battle in the last couple of weeks, a battle over how fiercely the president would fight back on the subject of Iraq, not on the subject of the CIA leaks, rather the NSA leaks.

It was Rove who was arguing against the humble approach, but we saw the president in a number of news conferences and speeches—knowledge of some mistakes in Iraq and begin to moderate his rhetoric on Iraq at least.

MATTHEWS:  I want to congratulate “Newsweek” for putting Cheney on the cover once again.  When something goes wrong in this country, torture, Abu Ghraib, leaks, this thing about spying, there's Cheney right up front there.

THOMAS:  Well, on those particular things, he's involved.

MATTHEWS:  Yes, OK, thank you Andrea Mitchell, thank you Evan Thomas.  Tomorrow on HARDBALL, FBI whistle blower Colleen Rowley will be here to talk about her experiences with this courts that decides on these wiretaps prior to the 9/11 attacks. 

Up next, is President Bush helped or hurt by the domestic spy story?  We've been talking about that, we'll talk again when the all stars: Pat Buchanan, Bob Shrum, join us tonight on HARDBALL in just a minute.  You're watching it on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  How much was the Justice Department's reported opposition to the NSA spy program?  How did it hurt the president's case for domestic wiretapping to begin with?  And as more details of the secret surveillance program continue to drip out in public view, will President Bush suffer any political fallout?  Pat Buchanan is an MSNBC political analyst, among other things.  And Bob Shrum is out in L.A.  right now.  Are you receiving “Brokeback Mountain,” or what are you doing out there, Bob?

BOB SHRUM, MSNBC POLITICAL ANALYST:  No, no actually I came out here to see my son-in-law and for some sunshine.  It rained on the Rose Parade and I think it's continuing to rain on the Bush administration.

MATTHEWS:  Pat—Pat said you can score a couple of tickets for him to “Brokeback Mountain.”  That's why I was kidding you about that.

SHRUM:  I think Pat should go to see “Brokeback Mountain.”  It will raise his consciousness.

MATTHEWS:  Well, we'll see.  We'll report back on that in the next show.  Let me ask you about this question, it's a great American debate, I think.  And we'll hear from both sides right now. 

Pat, is it wrong for the president of the United States to go beyond his legislative authority and wiretap people who live in this country, or residents of this country, citizens of this country, in a war effort?

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  I don't think it's exactly wiretap, it's eavesdrop on them. 

MATTHEWS:  What's the difference?

BUCHANAN:  Well, the difference is you're not putting a wire, going over somebody's stuff.  What they're doing is picking this stuff out of the air and going through it.  It's eavesdropping.  Yes, he's got the inherent constitutional right to do this, we're in a war. 

And in addition to that, the president has come out and openly defended it.  He talked to Congress.  I haven't heard a single Democrat come out and say, “Mr. President, what you did is illegal, it's criminal, stop it right now.”  So the president has won this argument.

MATTHEWS:  Are you willing to say that, Bob?

SHRUM:  Yes I think what he did was illegal and I think the arguments that Pat is using are recycled arguments that defended the same kind of thing under Richard Nixon. 

Look, when we go to war in this country, we don't appoint a dictator and George Bush had the power to go to a court, he had 72 hours to eavesdrop without that court's permission.  The court almost always gives permission and John Ashcroft, for heaven's sake, had real doubts about the legality of this. 

The president shouldn't have done it.  He's admitted he was wrong about weapons of mass destruction, admitted he ought he was wrong about the intelligence before the war.  He ought to admit he was wrong to do this.

BUCHANAN:  He's not only right, Chris, the president of the United States, something like 64 percent of the American people agree with him, 81 percent of Republicans.

MATTHEWS:  On what point?

BUCHANAN:  On the specific point that the president of the United States has the inherent authority to eavesdrop telephone calls overseas in a war on terror: 51 percent of Democrats agree with that, the Rasmussen poll.  The country is with him.  This excuse me is very much a journalistic story. 

MATTHEWS:  How is this different than the Nixon wiretaps?

BUCHANAN:  There's only Nixon wiretaps I'm aware of where national security on the SALT Agreement, but two guys, Sears and Safire, were wiretapped, who didn't know wire tapped, who didn't know the fallback of the SALT position.  I'll tell you the real story.

MATTHEWS:  Pat, I've heard the tape where Nixon told Haldeman, “I want to see wiretapping of all the Democratic candidates in '72.”

BUCHANAN:  Well listen, that's what...

MATTHEWS:  ... I heard it 1972.

BUCHANAN:  Well, you might have heard it, but let me tell you who do it.  Johnson wiretapped Agnew.  Johnson wiretapped Martin Luther King.

MATTHEWS:  OK, so they all do it.

BUCHANAN:  Martin Luther King and gave the fruits of it to the journalists in town and they never report it.

MATTHEWS:  So it's OK?

BUCHANAN:  It is not, that's not national security.  This—does anyone think the president's not acting for national security motives here?  Anybody?

SHRUM:  Pat is illustrating exactly why we do have a court.  The president is standing up saying I'm doing this for national security.  I'm doing this only with 500 al Qaeda people.  Doesn't make it so. 

The reason we have checks and balances, that is a court which almost always agrees with the president, is so that he can't go out and eavesdrop on people he's not supposed to eavesdrop on. 

BUCHANAN:  Shrummy, let's talk about the Constitution. 

The check on the president of the United States is the Congress of the United States and its impeachment power and investigative power.  They ought to investigate this, I agree.  If they have to close the door, that's fine.

But the president believes and I believe, Mr. Schmidt (ph), who worked for Clinton, says he has got it.  He's got inherent authority to listen in on phone calls he believes are being made to foreigners involved in terror against his country.  That's the case he's making, Chris.  He makes it every day.  He's winning the argument because there is no argument.

SHRUM:  But we don't know that's happening.  We don't know that's what's happening, Pat. 

The reason we have the courts is so that someone checks the president's assertion.

(CROSSTALK) 

SHRUM:  By the way, you couldn't be more wrong.  You couldn't be more wrong.

MATTHEWS:  Well, who tells the president inside what he is allowed to do?

BUCHANAN:  He's told by two people, his advisers are.  His counsel is one and his attorney general is the other.  But in a matter like this, he would go to the people at the NSA, what is your statutorial authority? 

Chris, what we've got is some brand new incredible weapon to sweep up all these phone calls, and as you talked earlier, sort out the word Bojinka in every one of them and then go back.  You can't ask him to run to court and say we got one here, we need authority.  So he decided I'm going to use it. 

SHRUM:  You're distorting this.

MATTHEWS:  We'll be right back with more of this.  And, by the way, on Hardblogger, our all stars Pat Buchanan and Shrum will be appearing.  This is HARDBALL only on MSNBC. 

(COMMERCIAL BREAK) 

MATTHEWS:  We're back with Pat Buchanan and HARDBALL political analyst Bob Shrum. 

Hey Shrum, you know, the last election was decided rather narrowly in Ohio.  Of course, the popular vote was about three million plus votes for the president. 

But when they polled people before the election, there are a couple great polls I love.  One was if you get a flat tire, who is going to stop and help you?  And unfortunately for John Kerry, people thought more likely the president would stop and help them.  I don't know whether they are going to think Hillary is going to stop or not. 

But the question of national security was probably a more important poll.  It said who do you trust to protect you?  And 49 percent only said the president.  In other words, they didn't think Kerry, they didn't believe Kerry would protect them. 

How did the Democrats gain on this topic of national surveillance, National Security Agency surveillance if it looks like the Democrat side is against real tough guy behavior in protecting us? 

SHRUM:  Well, first of all, I think it was a 9/11 election.  I think that was what helped Bush. 

Secondly, I think we now know that if he stopped to help you with a flat tire, he would probably turn on a tape-recorder to see what you were saying he could turn it over to the NSA.

Pat could not be more wrong.  It is not just the Congress that exists to check the executive.  It is the judicial branch.  There was a case called U.S. v. Nixon that he may recall.  And the fact is the president has 72 hours if he thinks there's danger to eavesdrop without going to the special court.  He can then go to the special court. 

Even John Ashcroft refused to sign off on the idea that this was legal.  So I think there will be a drip, drip, drip.  And the president ultimately is going to get in trouble on this, as on other things. 

BUCHANAN:  Chris, you are exactly right.  You've gone right to the heart of the matter.  What the president of the United States did here, was, yes, he eavesdropped on people talking abroad.  And you ask the average guy, why did the president do that?  Was it for his benefit?  Was does he get benefit out of it?

He did it because he's taking extra precautions, maybe going a step too far for what purpose?  To defend the national security to stop another 9/11.  You don't impeach a president who crosses a line to protect the national security of the United States. 

And the Democrat, like Mr. Shrum, they get out there, undercut his authority, take this away from him.  One more 9/11 and the Democrats are right back in their box. 

MATTHEWS:  What should he have done, Bob?  What should the president have done after 9/11 in terms of using our massive electronic advantage over the enemy to find out what they're up to?  What should he have done with that power?  Not used it? 

SHRUM:  No.  He should have used it.  And Pat keeps ignoring one fundamental point which is the president has 72 hours to do this without going to the court.  He can then go to the court which almost never turns him down. 

Pat keeps saying, oh, it is only al Qaeda, it's only foreign conversations.  Whose word do we have for that?  George Bush, who has misled us on weapons of mass destruction, misled us on prewar intelligence and misled us on post-war planning.  That's why we have checks and balances. 

BUCHANAN:  Look, you're talking wonkery.  You're talking wonkery. I mean you're talking about FISA courts and all these...

MATTHEWS:  What's wonkery? 

(CROSSTALK)   

SHRUM:  No actually I'm talking about the Constitution of the United States. 

BUCHANAN:  But look, there is a Constitution of the United—well, let me tell you what the Congress ought to be doing. 

MATTHEWS:  He got more into it.  Every time I go in, I learn a new word from you, Pat.  

BUCHANAN:  Let me tell you, Congress.  You want to talk about something serious?  You've got the head of the CIA, who was over there in Turkey, asking for the use of bases for a strike on Iran, which could put this country at war with Iran.  And the president doesn't have the authority to go to war. 

Now, the Congress wants to ask a serious question.  They should say the war powers are ours, Mr. President.  We haven't authorized war.  Are you going to war?  This is serious stuff that the American people will listen to. 

MATTHEWS:  Congress will not insist.

BUCHANAN:  No, it's a cowardly institution.

MATTHEWS:  And there's this blank check they gave him for Iraq without ever saying which war, when or how.  They said whenever you feel like going to war, Mr. President, you can go.  What a ridiculous congressional authority. 

BUCHANAN:  Chris, it's a cowardly institution. 

MATTHEWS:  I think we find agreement here that the Constitution said Congress can declare war.  And the Constitution has not been honored in a long time, right, Bob? 

BUCHANAN:  You're right.  Since Korea. 

SHRUM:  I agree with that.  You know, Pat, and we talk about this occasionally on this show.  Pat was right at the beginning.  He was against the Iraq war. 

BUCHANAN:  But, look, I agree, we should not go to war.  But if you go to war, you can't have journalists running around and exposing one of the best weapons the president of the United States has. 

MATTHEWS:  OK.

(CROSSTALK)   

MATTHEWS:  And by the way, if we can't argue about this in this country, what will we argue about?  It's the most important question of the world.  Our rights and our security. 

Thank you very much, Pat Buchanan.  Thank you, Bob Shrum.

Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL with FBI whistle blower, Colleen Rowley.  She is one of the heroes. 

Right now it is time for the “Abram's Report” with Dan.

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

END   

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