updated 1/3/2006 11:02:23 AM ET 2006-01-03T16:02:23

Guest: Ken Stethem, Bob Kohn, Robert McGee, Bob Jensen, Jeff Goodell, Joe

Manchin, Jim Spears

JOE SCARBOROUGH, HOST:  And we're staying on top of tonight's breaking news story; 16 hours after an explosion traps 13 miners more than a mile inside the mine shaft, we ask the experts, is there enough air left for them to survive?  And why did rescuers have to wait so long before going in?

And with 46 alleged violations of federal health and safety rules, was this an accident that could have and should have been avoided? 

It's a developing story, as rescue teams at this hour are thousands of feet underground trying to locate those miners. 

Now, let's take an animated view of what officials think may have happened this morning. 

It's about 6:30.  Two crews head into the mine.  That's when there's an explosion that rocks the area.  The second crew was able to escape out of the mine.  But, unfortunately, that first crew got cut off from the escape routes.  And now they are trapped deep inside the mine. 

Let's go to NBC Lisa Daniels, who is live in Tallmansville, West Virginia, with the very latest on the rescue efforts. 

Lisa, get us up to date with what's been going on throughout the day and this evening.

LISA DANIELS, NBC CORRESPONDENT:  OK, Joe.

Well, the miners have been trapped for now about 15-and-a-half hours.  And, so far, no sound from them, that's the bad news.  The hope is that these miners somehow survived the initial explosion and found a pocket of air.  And the families are hoping that they are staying in that pocket of air until hope arrives. 

That's the hope they are clinging to.  Now, there were rumors earlier in the day, Joe, that their air tanks held about seven hours worth of oxygen.  The owners of the mine recently cleared that up.  At most, those tanks hold about one hour's worth of oxygen. 

Now, you were explaining where the miners are in relation to the mouth of the mine.  If you think of in terms of a horizontal and a vertical coordinate, they are about 10,000 feet from the mouth of the mine.  And they are about 260 feet below the surface. 

We're talking horizontally.  So, far there has been no digging to rescue the miners, in terms of an active search.  The only digging that we believe has begun is to insert this air monitor control device to find out how much methane is out there, how much the carbon monoxide levels are, and how much water is actually in the mine. 

So, the rescue effort is extremely slow going.  Just to give you an idea, Joe, we're told that the rescue teams are only about 1,500 to 2,000 feet, horizontally speaking, from the mouth of the mine.  The explosion is said to have occurred about 10,000 feet. 

So, we're just talking horizontally.  So, far, there has been no

vertical digging.  So, the rescue effort is very slow going.  That is

because they want to keep in constant communication with the people back

here on the ground.  As for those poor families that are waiting for the

news, they are gathered about two miles from where we're standing.  And

I just spoke to the governor of West Virginia.  And he said that people are crying.  Obviously, they are very concerned.  But a little 10-year-old boy did come up to him, he said, hugged him and said, “I know my daddy is going to be OK.”

So, they are clicking clinging to hope, Joe.  But right now, there's no word from the miners. 

SCARBOROUGH:  And, Lisa, there was a press conference earlier tonight. 

What did you learn from the press conference? 

DANIELS:  I couldn't hear your question, but I think you asked me about the timeline.  And a little bit earlier...

(CROSSTALK)

SCARBOROUGH:  Yes, timeline of the press conference. 

DANIELS:  Yes. 

The owners of the mine did explain what they believe to be the timeline.  Let's listen to what they said. 

(BEGIN VIDEO CLIP) 

ROGER NICHOLSON, GENERAL COUNSEL, INTERNATIONAL COAL GROUP:  At 6:31 a.m. this morning, the power went out at the mine.  Shortly thereafter, at about 6:40 p.m., the surface received a call from the 1 Left section that indicated that they had lost power and that something had happened and that they were leaving the mine. 

At that time, our mine superintendent began heading underground to investigate.  He also—as he was underground, he told the dispatcher to begin the notification process.  After communications with the mine superintendent from underground, within a few minutes after going underground, we began to understand that something serious had happened.

And, immediately, efforts began to contact MSHA and the state regulatory agencies, in accordance with our—our process. 

(END VIDEO CLIP)

DANIELS:  Joe, that's what the owners of the mine believe to be the timeline. 

I want to quickly bring in Jim Spears.  He's the West Virginia secretary for military affairs for public safety. 

And I just saw you talking on your cell phone.  Were you speaking to the rescue teams? 

JIM SPEARS,  WEST VIRGINIA SECRETARY FOR MILITARY AFFAIRS FOR PUBLIC

SAFETY:  Not directly to the rescue teams, but to the control group there that is in charge of getting the rescue teams prepared and then sending them down. 

DANIELS:  What's the latest information that you are hearing as to the actual rescue of the 13 miners trapped down there? 

SPEARS:  Well, as you just mentioned, the rescue efforts are very slow just due to the inherent danger that is involved in that. 

And you have to go in and you have to check, constantly be checking the atmospherics of the mine.  And you also have to make sure that you are checking all of the side portals as they are doing this.  It makes progress very slow.  They have gone in now about 3500, 4,000 feet. 

DANIELS:  And even though that sounds like progress, we know that they can get 9,000 feet or so into the mine.  We're talking horizontally speaking. 

SPEARS:  Right.  Right. 

DANIELS:  But then there's concern that the debris wall will be at 10,000 feet.  That's the real question.  What's beyond that 10,000 feet? 

SPEARS:  Exactly.  You are exactly right.  We're waiting for our teams to get to that point, so that we can better assess the situation.  And it's at that point that we will have a better idea on the exact timeline. 

DANIELS:  OK.  And then the digging will begin.  We were told that it was supposed be some digging starting at 9:00 Eastern.  But that's just to get these devices, in, right?

SPEARS:  Right.  Right. 

DANIELS:  It's not the active rescue that we are all hoping for.  Is that correct? 

SPEARS:  Right.  Right.   

The drilling that we're all waiting to have begin is really to get the atmospherics constantly monitored at the place where we believe that the individuals might be and also to possibly get some communications out there to them. 

DANIELS:  As much as the families are holding out hope, what's the reality right now?

SPEARS:  I think that we all need to face reality but at the same time, we should continue to hold on hope.  If we give up hope, then we have given up everything. 

DANIELS:  OK.  Jim Spears, West Virginia secretary for military affairs, thanks so much for the update. 

SPEARS:  Thank you. 

DANIELS:  So, Joe, that's really where this is standing right now.

The rescue efforts continue into the night—the families, of course, hoping for any news at this point.  But they are clinging to hope. 

SCARBOROUGH:  Lisa, clinging to hope and obviously Mr. Spears is a public official and he has got to be diplomatic about it.

But, if you can, set the scene for us for there.  When you're talking to officials, talking to rescue people, and just generally people that are there in the area, are they growing more pessimistic by the hour that these miners may not have survived? 

DANIELS:  Yes, they are. 

I mean, as every minute goes by, of course, it's bad news.  And the fact that the active rescue effort has not begun—and who knows when that will actually begin?  The only digging that we're talking about is to insert those devices.  Now, of course, the reason that they are clinging for hope because of July 2002, the Pennsylvania miners, those nine men who appeared hours, 72 or so hours, after people, of course, secretly were thinking that they were dead, and they came out just fine. 

So, I think a lot of the families and public officials are clinging for hope for that reason.  But, yes, as the time goes by, it does not look good. 

SCARBOROUGH:  All right.  Thank you so much, Lisa Daniels.  Greatly appreciate it.  We will be back with you with any other breaking news. 

And, right now, let's bring in NBC analyst Robert Hager, who covered the dramatic 2002 rescue in Quecreek, Pennsylvania. 

Robert, obviously, so many people holding out hope because of what happened in 2002.  You were there.  You knew what was going on.  Can you draw any parallels there, or is the situation more bleak tonight? 

ROBERT HAGER, NBC CORRESPONDENT:  I have got to say, I think it's more bleak. 

The cause of that mine disaster was a flood.  The miners were working down there.  They had broken through a wall of an old adjacent mine.  And floodwaters came pouring in.  They scrambled for a higher tunnel underground. 

The task for the rescuers then was to figure out where they were and they kind of calculated on that based on the theory that they would have tried to get to the highest tunnel.  And they drilled down through there.  And they allowed—they brought fresh air to the miners.  And actually the miners tapped on the drill, so they knew that they had some life down there. 

And then they spent the following days pumping the water out and drilling this miraculous hole down through which they were able to bring them up.  I think if you can bring the camera back to me, what Lisa was talking there about horizontal, I tried it here as a drawing, just to hopefully give people the idea. 

Here is the mountainside.  Normally, this is the way coal mines are set up.  This would be the shaft going in.  So, it's this one that is about 10,000 feet there, or think of it as two miles back in.  So, the men are somewhere there.  And this distance is shorter.  It's only 260 feet from the surface of the mountain down to where they might be. 

So, they're—the rescue teams go in here, try to get where the debris is, encounter the debris, send back word of how difficult it is to work their way through that debris, whether or not there's a chance of getting in that way. 

Meanwhile, as I get it, I think those drill—the equipment that they are trying to drill down with to get some fresh air in there or at least take a sample to see if—see what the levels of methane are there, I think that's coming in from the side of the mountain. 

Those are the only two choices, though.  Either you get in this way or you get in this way.  And when you have got debris and a high level of explosive gas down there, as there must have been to cause this explosion, and then the high level of carbon monoxide left over as a result of the explosion, you are just facing a lot of obstacles there. 

So, I think this situation is a more difficult one than one that was already very, very difficult in Pennsylvania three-and-a-half years ago. 

SCARBOROUGH:  And, Robert, if you can, hold up your diagram again for our viewers. 

HAGER:  Sure.

SCARBOROUGH:  I want to show them this again and underline the point.

That blue line, that thick blue line that goes in the mouth, you said that's approximately two miles in to where the explosion was? 

HAGER:  Yes.  That's what I get out of it.  They are talking about 10,000 feet, so, think of it as two miles back. 

SCARBOROUGH:  Geez.

HAGER:  Yes. 

SCARBOROUGH:  And talk about, if you can, again, for most Americans, overwhelming majority of Americans have no idea what the passageways are like underground?  You don't drive trucks in there, do you? 

HAGER:  No. 

SCARBOROUGH:  It's very slow going.  In some places, you have to even crawl, right? 

HAGER:  Yes. 

Usually, the first part, if the mine has been there a little while, the first part will be higher, like those pictures you're seeing there now of a mine in Pennsylvania.  But when you get down near where the coal is, it really gets shallow. 

I mean, you are talking two or three feet to work in, just big enough to get that kind of equipment down there, the—the coal digger in against the wall of coal.  So, these people were very deep into this mine.  So, chances are, where they are is very, very shallow.  And you would have to really crouch over to even move down there.  And it's going to be pitch dark, damp, at 40, 50 degrees, so very cold, danger of hypothermia coming on very quickly. 

And you are deep in the mine there.  Now, modern regulations require that mines have shafts through which fresh air can come, small shafts periodically over the mine.  And then there are curtains and they have all kinds of fan down there to circulate the air.  But how much help that would be in a situation like this, where there may have been a pretty big explosion and use up the oxygen fast and leave a lot of carbon monoxide behind, that's—all of that makes it very, very difficult. 

And big, big problem is that they—not having heard from these people, no contact with them, don't know if they are alive, but don't know where they are.  So, if you are trying to get an air shaft down there and get some fresh air to them, in the hope that they could survive, you don't know exactly where to drill it. 

SCARBOROUGH:  And, Robert, what do you make about the explanations for the possible causes of this explosion?  We have heard a lightning blast.  That—not to sound too skeptical, but that just doesn't seem to make sense to me.  Do you buy that explanation? 

(CROSSTALK)

HAGER:  No.  I don't think it could lightning. 

My—I'm just guessing here.  But—well, it's an educated guess.  But to imagine lightning somehow setting off a methane explosion, when the lightning is above ground and the methane is deep down in the mine, that stretches the imagination. 

It could have—lightning could have hit a piece of equipment on the outside, some wiring, say, and sent a jolt of electricity down there that then caused some kind of a spark in equipment down deep in the mine to set it off.  But much more likely, I think this mine was idle during the holidays.  And, so, you could have gotten some methane gas buildup, although they watch it very closely with automatic monitors and so forth.

But you would have maybe some buildup of methane during the holiday.  Now, this is the first shift in coming in after the holiday.  And there's a lot of equipment to turn on.  So, turning on equipment, I mean, it's electricity operated.  It could set of a spark of some kind and you could have got an explosion. 

Methane levels, they try to keep them down in mines, but it's just a natural ingredient under the surface of the earth.  And they are always a very difficult thing to deal with. 

SCARBOROUGH:  All right. 

(CROSSTALK)

HAGER:  It's ever-present.

SCARBOROUGH:  All right.  NBC News' Robert Hager, thanks so much for your insights.

HAGER:  Thank you, Joe. 

SCARBOROUGH:  Really appreciate it. 

HAGER:  Thank you. 

SCARBOROUGH:  Stay with us, because our coverage of the 13 miners trapped deep underground continues in a minute. 

And, tonight, tough questions about whether alleged safety violations played a role in this unfolding disaster.  We're going to get the latest from people who know this industry inside and out. 

And, later, is big media putting America at risk with front-page tales of top-secret anti-terror programs? 

We will tackle that one, too, when SCARBOROUGH COUNTRY returns. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Coming up next, we are going to have an expert on big coal and the industry talk about the 46 safety violations that were slapped on this mine several weeks ago. 

That, plus the governor of West Virginia—when SCARBOROUGH COUNTRY returns. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Welcome back to our breaking news coverage of the miners trapped in West Virginia. 

With me now, West Virginia Governor Joe Manchin.

Governor, thank you so much for being with us. 

GOV. JOE MANCHIN (D), WEST VIRGINIA:  Thank you, Joe. 

SCARBOROUGH:  What can you tell us about the very latest in the search-and-rescue efforts tonight? 

MANCHIN:  Well, Joe, our rescue teams are—our rescue teams are moving as rapidly as possible.  And the air seems to be OK.  They are able to move and progress along. 

And taking the water.  We're pumping water out.  That's a normal procedure.  And the drill rigs are getting set up, and basically trying to get the holes down, so we can monitor and test the air qualities and things of that sort. 

So, everything is going and moving as quickly as it can.  And I keep saying, in West Virginia, we believe in miracles.  We have hope.  The families have hope.  I told them not to give up.  We're not giving up.  I'm not giving up.  This is still a rescue mission. 

SCARBOROUGH:  Well, Governor, I understand you were down, actually down in Georgia.  You were going to watch the West Virginia Volunteers play tonight. 

MANCHIN:  Yes. 

SCARBOROUGH:  But, when you got news of the tragedy, you jumped on the plane and went back up to your home state.  Talk about the families and the people that you have talked to.

MANCHIN:  Well...

SCARBOROUGH:  How are they holding up?  What are they telling you right now?   

MANCHIN:  Well, let me just say that the Mountaineers were playing.  WVU is playing in the Sugar Bowl tonight against Georgia.  We were all down there, about 25,000 fans.

I heard this morning, called the plane and came back.  We are family in West Virginia.  And I have been through this in 1968.  I'm from Farmington, where the worst mine explosion -- 78 people lost their lives.  I lost my uncle during that explosion.  I lost some of my friends that I went to school with. 

So, I know what it's like.  And these family members are hanging on to every word every minute.  Every minute seems like an hour.  An hour seems like a day.  And they are just—they're praying.  And we have all the clergy down there.  They are gaining strength from the support of each one.  And we're—we are pulling together as a state, as a community. 

I want to thank the entire nation and all the people around the world that are watching and their prayers coming forth.  Everyone is helping. 

But I can tell you, our spirits are high.  We have a lot of hope.  We believe in miracles, and we're hoping for the best. 

SCARBOROUGH:  So, you have talked to these family members.  And despite the fact that experts are saying it's a difficult situation, they still are holding out hope, still are praying for a miracle? 

MANCHIN:  Absolutely.  Absolutely.  Let me tell you...

(CROSSTALK)

SCARBOROUGH:  Go ahead. 

MANCHIN:  No, we're in a rescue—we're still in a rescue mode here. 

Let me tell you the encouraging—when you get back in, have your rescue teams go back in within the same day, within 12 hours of the accident, when the explosion happened, that means that you don't have a high fire, a large fire going on.  Carbon monoxide levels aren't high.  That's safe enough for our rescue teams to go in.  That's encouraging. 

If we're able to have our men survive during that explosion, they are experienced.  They know how to survive.  They have apparatuses, breathing apparatuses.  And they know how to take care of themselves.  And that's what we're hopeful for. 

SCARBOROUGH:  Governor, talk about the rescue efforts, though. 

Everybody knows that there are inherent risks involved in being a miner. 

MANCHIN:  Yes. 

SCARBOROUGH:  You were just talking about how you lost a family member in the 1968 explosion. 

MANCHIN:  Yes. 

SCARBOROUGH:  Talk about how dangerous these rescue efforts are, also, though.  This is tough terrain. 

MANCHIN:  Rescue—down in Alabama, the rescue team that was going in to perform the rescue for some miners went into a difficult situation, and we lost them.  So, it's very dangerous. 

But mining is inherently dangerous.  We know that.  We're in a state that continues to give its all.  It always has.  This little state has continued to mine coal that makes this country go.  It provides the energy.  And we have done it for generation after generation.  It's become safer and safer.  And we're continually being safer.  Last year was our safest year.  But we don't want one accident.  We don't want one fatality.  That's one too many.

And to start out the year this way, it concerns us, from the standpoint that it makes it very difficult.  And, especially with a new year, comes new hope, and we still have hope.  We really do.  And I had one little boy come down.  And they said, now, we want you to say something to this little boy.  He's been working all day so hard.  He's 10 years old. 

And, he said, my daddy is in the mine, he said, but I know he's OK. 

And I said, honey, I know your daddy is OK, too. 

SCARBOROUGH:  All right.  Governor, let's certainly hope so. 

Know that all of our thoughts and prayers are with you and the state of West Virginia tonight, and certainly hope it turns out well for everybody involved.  Thanks so much.

MANCHIN:  Well, Joe, we thank you and all your viewers for all their sympathy and all their prayers. 

SCARBOROUGH:  All right.  Thanks so much, Governor.  Greatly appreciate it. 

Now let's bring in Jeff Goodell.  He co-authored “Our Story: 77 Hours That Tested Our Friendship and Our Faith,” with the Quecreek miners.  And he's now the author—and also the author of “Big Coal,” a new book on the industry that's out this spring.  And on the phone, we have Robert McGee of the United States Rescue Association.  He participated in the rescue of the nine miners at Quecreek. 

Jeff, let's start with you.  Talk about the situation tonight, what these miners may be going through. 

JEFF GOODELL, AUTHOR, “OUR STORY”:  Well, based on what I saw and talked to the guys at Quecreek, it's just—the simplest way to explain it is just darkness and terror. 

The thing that happens in this kind of situation is that disorientation happens, takes over very quickly.  You can't see anything.  You don't know where you are.  And it's a very—it's a very, very difficult situation.  Time stops.  The Quecreek miners didn't know if they were down there an hour or 12 hours. 

You become completely disoriented.  And the hardest thing, of course, is that, really, in most situations, there's nothing that you can do is wait and think and wait and think.  And that's what's really tough. 

SCARBOROUGH:  Just a terrible situation, cold, dark, damp, nasty. 

So, let's talk about this mine.  This company, I understand, in this mine, they were recently cited for 46 violations, safety violations?  Is that right? 

GOODELL:  That's right. 

(CROSSTALK)

SCARBOROUGH:  I'm sorry.  I was going to ask you...

GOODELL:  It's not clear yet what—how...

(CROSSTALK)

SCARBOROUGH:  Talk about this mine and also the industry as a whole.  We heard the governor saying, it's getting more safe all the time.  What's your take on it? 

GOODELL:  Well, they like to say that.  And the mining industry does have a much better safety record than it had before. 

They have certainly improved a lot of technology they are using in mines.  They are taking safety more seriously.  But at the same time, a lot of the declining statistics that they elected to site have to do with the fact of large strip mines have taken over.  And they are much safer.  The Bureau of Labor Statistics show that the kind—precisely the kind of mine that Quecreek was and that this mine is, a kind of a small mine that is in a mined-out section of Appalachia, where there is—where the easy coal is gone and it's getting too—tougher and more difficult and more dangerous and thinner seams. 

These are by far the most dangerous mines in America.  And the fact that this mine had had 140 violations or something like that in 2005 is very disturbing.  And I think that there's going to be a lot of questions asked here, however this turns out. 

SCARBOROUGH:  Yes, 46 safety and health violations just last month. 

Robert, talk about what the rescue efforts are entailing right now?  What are the rescuers going through?  And what's the best chance to get to these miners and save them tonight? 

ROBERT MCGEE, TREASURY SECRETARY, UNITED STATES MINE RESCUE

ASSOCIATION:  Well, it's very encouraging to hear that, in the last hour, they have increased their advance into the affected part.  They seem to have overcome the obstacles of—that they encountered earlier, such as the carbon monoxide. 

So, that seems to be progressing at a rate that we could say is positive.  The drilling, I understand, was supposed to start at 9:00 on the surface.  Once that is completed, they will at least provide access to fresh air to the affected part.  And it's just a continual march toward this location by the teams.  But it's a painstaking process. 

(CROSSTALK)

SCARBOROUGH:  Trying to find the location.  But I guess that's the question, Robert.  When you are trying to find the location, how do you do it?  Obviously, there's no cell phones, no communication that way.  Can you explain to our viewers how people above ground try to make contact with the miners, so they will know where to drill the rescue holes? 

MCGEE:  Well, the mapping process, the engineering that's available in mining is very sophisticated, so the mine operator knows exactly where they are, or where they should be. 

The coal miners go to work in the same general area everyday.  So, they have a real good knowledge of where that is in reference to the surface.  And using the GPS technology, it's—they will probably be able to punch a hole right in the middle of the entry. 

SCARBOROUGH:  Where they are.

(CROSSTALK)  

SCARBOROUGH:  Thank you so much, Robert. 

MCGEE:  You're welcome. 

SCARBOROUGH:  Robert McGee and Jeff Goodell, greatly appreciate you being with us tonight. 

We will be right back. 

But, first, as we have been hearing, coal mining is one of the toughest jobs there is.  And here's some images of coal mining that you won't forget soon. 

(MUSIC)

(COMMERCIAL BREAK)

SCARBOROUGH:  Are “The New York Times” and big media guilty of damaging national security by printing top-secret details of our programs that target terrorists?  That debate coming up. 

But, first, here's the latest news you and your family need to know. 

(NEWS BREAK)

SCARBOROUGH:  The Germans set this killer terrorist free.  Now, will America stand up and bring him to justice?  The latest from the brother of one of his victims. 

Plus, Donald Trump, is he jumping into politics?  We have got the latest buzz tonight. 

Welcome back to SCARBOROUGH COUNTRY.  Great to have you here.  We're going to have those stories in just minutes. 

But, first, in its reporting on the Bush administration's use of the National Security Agency for domestic spying, some are asking if “The New York Times” itself is guilty of helping terrorists who want to harm Americans. 

“The New York Times”' own public editor has questions about the paper's reporting and says this—quote—“For the first time since I became public editor, the executive editor and the publisher have declined to respond to my requests for information about news-related decision-making.”

With me now to talk about it, MSNBC political analyst Patrick Buchanan, Bob Jensen—he's a professor of journalism at the University of Texas—and Bob Kohn.  He's the author of “Journalistic Fraud: How The New York Times Distorts the News and Why It Can No Longer Be Trusted.”

Bob Jensen, let me start with you.

Is it treason for “The New York Times” to print top-secret details of a program that's supposed to actually bring terrorists to justice? 

DR. BOB JENSEN, UNIVERSITY OF TEXAS:  It's not only not treason.  One could argue it's the highest form of patriotism to expose an illegal program and to hold concentrated power in the executive branch accountable, when the rest of the government is unwilling and unlikely to do so.  So, treason, hardly. 

(CROSSTALK)

SCARBOROUGH:  Well, OK.  Well, first of all, Professor, is it illegal? 

Do we know that this program is illegal?

JENSEN:  Well, it's illegal by the evaluation of every expert outside of the Bush administration.  Yes, of course it's illegal.  That's well known.  The Bush administration... 

(CROSSTALK)

SCARBOROUGH:  Well, no.

(CROSSTALK)

SCARBOROUGH:  It's not well known.  That's your opinion.

JENSEN:  Oh, come on.  Everyone knows it's illegal. 

(CROSSTALK)

SCARBOROUGH:  No.  You can't say—Professor, I hope that you expect more intellectual rigor from your own students than that than to just say, if I'm against something, it's illegal. 

JENSEN:  It's—there's no constitutional authority to violate a law that Congress has passed. 

And the so-called support that Bush claims that comes from the resolution authorizing the use of force clearly doesn't override a previous congressional statute.  Legal experts, and as well as common sense, show that it is in fact an illegal spying program.  The fact that the Bush administration won't own up to it is not unusual.  No administration owns up to its crimes.  That's the role of the other branches of government and the media. 

SCARBOROUGH:  All right.  So, now it's a crime. 

Patrick Buchanan, what do you have to say about it? 

PAT BUCHANAN, NBC POLITICAL ANALYST:  Well, treason is giving aid and comfort to the enemy in time of war.  And this certainly did that.  So, it constitutes treason.

Secondly, the individual that leaked it is guilty of a felony.  And he's violated his oath to protect the highest national security secrets of his country. 

(CROSSTALK)

SCARBOROUGH:  Pat, let me stop you right there.  Hold on a second, Pat. 

(CROSSTALK)

BUCHANAN:  No, no, hold it. “The New York Times” is an accessory to that crime.

SCARBOROUGH:  Pat, I'm going to—no, Pat, I want you to continue talking about this. 

But if you compare the Valerie Plame case about how a desk jockey at Langley got exposed by somebody, and “The New York Times” and everybody else was screaming for an investigation, compare that to this situation, where a top-secret program, where you have got to sign all these security clearances to have information about this, is leaked, and yet no newspapers are calling for an investigation.  Is this not a clear double standard? 

BUCHANAN:  It's complete double standard.  It's manifest hypocrisy. 

Here's a program that the president of the United States considers one of the top secrets of this government in fighting a war.  Quite obviously, even “The New York Times” knows it, because “The New York Times” held it up for a year and is still withholding details of this. 

And the point is, what you get down to in journalism, Joe, you get down into this frat brother mentality that, if we do it, it's OK, and we protect our own. 

The idea that Valerie Plame's identity is a more important secret than this is preposterous.

Bob Kohn, I want to follow up on something that Bob Jensen said regarding the highest form of patriotism.  There were times when I was Congress, things would happen.  I would be offended by what members of my own party were doing, and I would go to a newspaper and say, hey, listen, the Gingrich people are about to do this.  You may want to get some information on it because it's going to break in the next week. 

I thought I was doing what was best, not only for my party, but for the Congress and for this country.  Professor Jensen says whoever leaked the information was doing the same thing. 

BOB KOHN, AUTHOR, “JOURNALISTIC FRAUD”:  Joe. 

SCARBOROUGH:  What do you say? 

KOHN:  Joe, “The New York Times” is completely out of control.  And if they get their wrists slapped on this, it should be real hard. 

Ever since the Pentagon Papers case, there's been a delicate balance and there's been an unwritten contract between the news media and the government about what kinds of national security matters the newspapers and the media can report on. 

Well, that unwritten contract, “The New York Times” has completely thrown it in the trash.  And you think about the real facts of this case.  “The New York Times” tried to position this as domestic spying.  And that's what they are trying to bring across. 

But we learned today, through the publication of the book by the reporter who broke the story, that what really happened here was that, in Pakistan and in Afghanistan, the U.S., the CIA gathered up the computers, and the cell phones and the personal phone records of the al Qaeda terrorists, immediately turned it over to the NSA.

And the NSA, without missing a beat, started to listen in on those phone calls.  Now, didn't the 9/11 Commission criticize the Clinton administration and the Bush administration for not doing exactly what the Bush administration did?  I mean, this is complete hypocrisy. 

SCARBOROUGH:  Let me bring in the professor again.

Professor, a lot of people out there would say, if you have got phone records from al Qaeda and they are calling Mohamed Atta on September the 7th, 8th, 9th, you want to listen into those phone conversations. 

(CROSSTALK)

JENSEN:  The law doesn't block the administration from doing that. 

We are talking about domestic spying.  We have a long track record in the United States of the abuse of power by the executive branch...

(CROSSTALK)

KOHN:  These were international phone calls. 

JENSEN:  The Nixon administration—the Nixon—what we're talking about is blocking the administration from ignoring law and ignoring due process. 

We're talking about trying to prevent what we saw happen in the 1950s, '60s and '70s under things like the COINTEL program, where the... 

(CROSSTALK)

SCARBOROUGH:  But aren't these phone calls from Pakistan? 

JENSEN:  But nobody is talking about that.  There's a process, the FISA court, that allows the administration to go in.  And the FISA court...

(CROSSTALK) 

KOHN:  Not during a time of war.  This is wartime. 

(CROSSTALK)

JENSEN:  We are talking about sweeping up...

(CROSSTALK)

KOHN:  President Lincoln—Joe, if President Lincoln were alive today, he would take the publisher and the editors in chief of “The New York Times” and deport them to Canada.

If Roosevelt was alive today, Roosevelt would intern them in California prison camps until the war was over.

BUCHANAN:  Hey, Joe?

(CROSSTALK)

KOHN:  And all Bush is doing now, in asking the Justice Department to investigate this, is to sue the bastards.  That's what going on here.

(CROSSTALK)

JENSEN:  ... executives have long done.

(CROSSTALK)

BUCHANAN:  Joe, let me get into this. 

Look, if I were in the White House and I knew this secret—and I have been in eight years in three White Houses—and I took it upon myself to go out and leak this to “The New York Times,” I would have disgraced myself, and I would go to a penitentiary. 

Why, then, is it a wonderful thing for journalists to take that kind of material and damage the national security and publish it and win awards? 

Look, the First Amendment...

JENSEN:  It doesn't damage the national security.

(CROSSTALK)

BUCHANAN:  How do you know it doesn't damage the national security? 

JENSEN:  It reveals the truth. 

BUCHANAN:  The president of the United States says so.

(CROSSTALK)

JENSEN:  The truth does not damage the national security. 

BUCHANAN:  The men who had this in Congress didn't leak it.  They kept it a secret.  The president kept it a secret. 

Even those who disagreed with it kept it a secret, like Ashcroft and others.  How the devil do you know it doesn't hurt national security, sitting down there in some journalism school?

(CROSSTALK)

KOHN:  Yes, there's been a long history here.  Troops movements, reporting on troop movements...

(CROSSTALK)

SCARBOROUGH:  Friends, friends, let's let Bob—Bob is outnumbered. 

Let's let Bob respond to that. 

Go ahead. 

JENSEN:  Listen, we have a long history.  The Pentagon Papers, the attempt to use bogus arguments about national security to suppress... 

(CROSSTALK)

BUCHANAN:   Ellsberg was prosecuted.  He could have gotten 35 years. 

He got off only because somebody broke into his psychiatrist. 

(CROSSTALK)

JENSEN:  Excuse me.

KOHN:  The Pentagon Papers case was about history, not about the future. 

(CROSSTALK)

BUCHANAN:  He broke the damn law, fellow.  He broke his oath and broke the law. 

(CROSSTALK)

SCARBOROUGH:  Hold on a second.  Hold on, everybody. 

Bob, OK.  Go ahead. 

JENSEN:  First of all, to compare this to the Valerie Plame case is ridiculous.  That was an abuse of power to try and punish a political opponent through a leak. 

We're talking now about classic whistle-blower cases, where an illegal government program is exposed, so that the citizens of this country know the truth about what the executive branch is doing.

Right now, the executive branch is out of control.  It's not the first time.  It happened.  It began after World War II, the Johnson administration, the Nixon administration.  We have got us a problem.  If Congress and if the courts don't hold the executive branch accountable, whistle-blowers and journalists can help do that. 

I think we should be grateful to the people who leaked this information.  We should be grateful to “The New York Times” for publishing it.  The critique of “The New York Times” is that they were cowards and waited too long to do it. 

SCARBOROUGH:  Exactly.  And that's what the public editor had to say, that he wanted an explanation, why wasn't this information actually released earlier, even though I disagree?

BUCHANAN:  Because “The Times” realized...

(CROSSTALK)

BUCHANAN:  ... a secret.

SCARBOROUGH:  Bob Jensen, thank you so much for being with us, Bob.

JENSEN:  Thank you. 

SCARBOROUGH:  Again, you were outnumbered tonight, but I appreciate your patience. 

Pat Buchanan, as always, Bob Kohn, love having you all on. 

And, obviously, let me bring in Tucker Carlson.  He's host of “THE

SITUATION WITH TUCKER CARLSON.” 

Tucker, I know you like leaks.  But I tell you, this situation, though, just enrages me, that these people are going to win awards for releasing this information, that, again, had it been released while FDR was president, he would probably throw the editors in jail. 

TUCKER CARLSON, HOST, “THE SITUATION WITH TUCKER CARLSON”:  Well, I'm not pro-FDR.

I am pro-leaks, though.  But I must say, more than anything, I'm pro listening to Pat Buchanan saying, sitting in some journalism school.  That guy just—I love Pat Buchanan.  He cracks me up.

SCARBOROUGH:  Hey, buddy, you're in some journalism school down there.

CARLSON:  I love that.

SCARBOROUGH:  Well, what is coming up on your show?

CARLSON:  Fellow.

(LAUGHTER)

CARLSON:  I have got some sad news for you tonight, Joe. 

SCARBOROUGH:  Uh-oh.

CARLSON:  And that is that John Kerry, having not learned his lesson last time, may be running for president again. 

SCARBOROUGH:  No.

CARLSON:  And I say sad, because, at a certain point—and that point is now—you have got to start to feel kind of sorry for the Democrats.  Nobody is in control. 

And so people like Howard Dean and John Kerry disgrace the previously not so bad name of the Democratic Party.  It's a joke, and a sad one.  And we're going to get into it in some detail.  Plus, we are going to bring you the latest on what is happening in that West Virginia mine tragedy. 

SCARBOROUGH:  You know what I can't believe, Tucker?  This guy got in trouble for what he said in 1971 in front of the Senate committee...

CARLSON:  Yes. 

SCARBOROUGH:  ... where he accused our guys, our troops, of war crimes. 

He goes on “Face the Nation,” tells Bob Schieffer, again, just a couple of weeks ago...

CARLSON:  I know.

SCARBOROUGH:  ... that our troops are committing acts of terror against women in Iraq. 

CARLSON:  It's the same script. 

SCARBOROUGH:  Hello? 

CARLSON:  People never get over their young years.  Do you know what I mean? 

They find a script in their 20s and they just keep repeating it.  It's sad.  It's always 1971 to John Kerry, unfortunately, for him.  He's not going to win in 2008.  But I must say, I will enjoy watching him fail again. 

SCARBOROUGH:  And it's always 1985 for me.  Roll Tide.  Roll Tide. 

Roll Tide.

(LAUGHTER)

SCARBOROUGH:  Thanks a lot, Tucker.

CARLSON:  Thanks, Joe. 

SCARBOROUGH:  Make sure to tune in to “THE SITUATION WITH TUCKER CARLSON” coming up next at 11:00.  He's going to be talking about that story, and, again, as he said, also, an update on the mining tragedy, and the very latest throughout the night. 

Coming up next, a terrorist who hijacked a plane and killed a Navy diver set free by the Germans.  Tonight, we get the latest from the family of his victim, and how you can help in their fight to get the American government to stand up and do the right thing. 

We will be right back with more SCARBOROUGH COUNTRY in a minute. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Now a follow-up to a story that SCARBOROUGH COUNTRY brought you first. 

Remember, German authorities released a convicted terrorist, the man responsible for murdering U.S. Navy diver Robert Stethem during that 1985 hijacking of a TWA flight.  Well, tonight, Stethem's family is fighting back, taking action, and sending a letter to the Bush administration and members of Congress, demanding some answers. 

Now, their letter says in part—quote—“With the news of Hamadi's release and the announcement of his return to Lebanon by the Shiite Hezbollah guerrilla group, we feel betrayed and despairingly disillusioned.  It's time for President Bush and Congress to stand side by side in this war on terrorism.  This cause has gone from argument to arms.  It is time to act.”

With us now, let's bring in Ken Stethem.  He's Robert Stethem's brother, who is helping to lead this fight.

Ken, welcome back to SCARBOROUGH COUNTRY. 

Tell me about this letter.  Why did you decide to finally send it and really put pressure on the Bush administration?

KEN STETHEM, BROTHER OF MURDERED NAVY DIVER:  Joe, basically, because we're absolutely unsatisfied with the indifference and inaction that the administration took upon Hamadi's release. 

SCARBOROUGH:  Who has been indifferent? 

STETHEM:  The administration. 

We have gotten two phone calls, one from Andrew Card, just wishing us well, and saying he's sorry, and one from Ambassador Crumpton, who is coordinator for counterterrorism from the State Department, and basically the same thing. 

SCARBOROUGH:  What about Congress?  Anybody talking to you in the Senate or in the House? 

STETHEM:  No.  We haven't heard anything yet.  And it's unbelievable. 

SCARBOROUGH:  That is unbelievable. 

Again, I want—let's look at these pictures again.  For anybody that's my age or older, you are going to remember these TWA shots.  This was a terrible, terrible time.  All of America and the world was following this for so long. 

And I remember the instant that I heard the news that an American, a patriot, had been shot, brutally murdered and thrown out into the tarmac.  I was enraged.  And I think all of America was enraged, Ken.  And we were thinking—we were demanding justice. 

Now, this is a part of the story that a lot of the people may not have heard yet.  You were aware of the fact that the German government might release this thug who killed your brother in cold blood back in '85.  And you actually went to the administration, you went to the government and tried to warn them.  And what did they do? 

STETHEM:  Nothing.  Nothing.

We have been trying to get meetings with Condoleezza Rice in the State Department, through the Justice Department since May.  And we have not been given the opportunity once. 

SCARBOROUGH:  Ken, have they given you any excuse at all on why they are too busy to talk to you on an issue that is really this important, not just about justice, but really about the ongoing war on terror?

They just let a terrorist thug, one of the world's most wanted terrorist thug, free in Lebanon.  Why are they too busy to talk to you? 

STETHEM:  I have no idea, Joe. 

And I will tell you, it's incredible, incredible, to see the president soliciting support for the war on terrorism the same week that Mohammed Ali Hamadi is released, and the administration absolutely knew about his impending release while the administration, while the president was preparing that speech. 

SCARBOROUGH:  Boy, I will tell you what.  If so, that's very, very explosive. 

Ken, we're going to be on top of this.  As I have said before, I have been a big Bush supporter in the war on terror.  I think he's done a great job.  But, in this case, there's a blind spot.  I want you to let us know, what can we do in SCARBOROUGH COUNTRY to shine some light on this terrible tragedy? 

STETHEM:  You know, Joe, in Iraq today, terrorists are using cell phones to kill American soldiers. 

And I would like the American people to take their government back and to let the administration know that this is a government of the people, by the people, and for the people. and I would like the people to demand that the administration submit a formal diplomatic request to the Lebanese government, in order for Hamadi to be turned over.  That's first. 

Second, I would like everybody to call the administration, and they can get the numbers, I believe, through your Web site, but call the administration and press for Lebanon to be listed on the FBI—or the state-sponsored terrorist list that the State Department has, because over 30 percent of the terrorists that are at large right now on the FBI's most wanted list are in Lebanon. 

SCARBOROUGH:  It's unbelievable.

STETHEM:  And, third, we ought to take the $40 million that we give Lebanon away until they release these terrorists. 

SCARBOROUGH:  All right.  Thank you so much, Ken. 

And we will have those phone numbers on our Web site.  You need to make a call and just demand. 

I will tell you what.  Let's do this, friends.  Let's start by asking the White House and members of Congress to meet this family, this family that's only fighting for justice.  Make sure you give them a call.  Go to our Web site, Joe.MSNBC.com. 

We will be right back in minute. 

(COMMERCIAL BREAK)

SCARBOROUGH:  Make sure you press record on the Betamax, because “THE SITUATION WITH TUCKER CARLSON” is just minutes away.  Tucker's the guy reading the book. 

(COMMERCIAL BREAK)

SCARBOROUGH:  That's all the time we have for tonight.  “THE SITUATION WITH TUCKER CARLSON” starts right now. 

Tucker, what's the situation? 

CARLSON:  Thank you.  Well, many situations tonight, Joe.  Thanks.

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

END   

Content and programming copyright 2006 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2006 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.'s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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