updated 1/10/2006 10:31:47 AM ET 2006-01-10T15:31:47

Guest: Ted Olson, John Flannery, James Risen, Ken Mehlman, Kate O'Beirne

NORAH O'DONNELL, MSNBC CORRESPONDENT:  Tonight, judging Alito.  The Senate Judiciary Committee holds its first Supreme Court confirmation hearings, and Congressman Tom DeLay is done.  And the race is on for a new House majority leader, but will the Abramoff political hammer come down on the speaker of the House, Dennis Hastert, next.  Let's play HARDBALL.

Good earning.  I'm Norah O'Donnell in tonight for Chris Matthews. 

President Bush's Supreme Court nominee Judge Samuel Alito faced the Senate Judiciary Committee.  The first step in his path to being confirmed to America's highest court replacing Justice Sandra Day O'Connor.  More on this in a moment.

But first, Congressman Tom DeLay announced this weekend, he would not seek the House majority leadership position becoming the first casualty in the Jack Abramoff scandal.  We begin with a growing political fallout from what could be the biggest congressional scandal in decades. 

HARDBALL'S David Shuster reports. 

(BEGIN VIDEOTAPE)      

DAVID SHUSTER, MSNBC CORRESPONDENT (voice over):  In the wake of Texas money laundering charges and a Washington corruption scandal focused on his office, Tom DeLay this weekend announced he will not seek his Republican House leadership post. 

REP. TOM DELAY ® TEXAS:  It has been a really great honor these last three years.  But the job of majority leader is too important to be hamstrung by personal distractions. 

SHUSTER:  DeLay, one of the most ruthless and powerful congressional leaders in decades, said he still plans to run for reelection in Texas, and he left open the possibility of running again some day for House majority leader.

But last week, DeLay's friend super lobbyist Jack Abramoff plead guilty to corruption charges.  Abramoff's business partner, Michael Scanlon, DeLay's former press secretary, has also plead guilty, and more than 100 members of Congress have given up money they received from the two lobbyists. 

And for DeLay, there are still unanswered questions about free trips to Scotland, free meals at Abramoff's restaurant, payments to DeLay's wife and legislation actions possibly at an exchange DeLay then pursued. 

SEN. JOHN CORNYN ® TEXAS:  Well out of respect for the House and for the nation, he's chose to put their interests ahead of his own, and I respect him for that. 

SHUSTER:  Last month the uncertainty over DeLay contributed to a lack of Republican discipline.  There were debilitating divisions on immigration, social policy and the president's agenda. 

And this month to try and help DeLay, the House scheduled an unusually long recess, but that's only contributed to the legislative standstill.  To turn things around, Republican Senator Arlen Specter has been arguing the GOP should introduce lobbying reform. 

SEN. ARLEN SPECTER ® PENNSYLVANIA:  But Republicans control the House and the Senate.  And I think it's up to us to take the leadership position and to move ahead with reforms.  They are long overdue. 

SHUSTER:  In fact, House Speaker Dennis Hastert has now asked Congressman David Dreier, one of his top committee chairs, to start drafting new lobbying legislation. 

Hastert told “The Wall Street Journal,” quote, “The House needs to exude integrity, and we need to make some changes.  This is not something that's knee jerk.”

But the speaker, himself, may be in some political trouble.  Abramoff held fund raisers for Hastert, and after one event at Abramoff's restaurant, that raised $21,000, the house speaker sent a letter to Interior Secretary Gail Norton, pressuring her to stop a casino in Louisiana, that new casino would have competed with an Abramoff client. 

In a dig at Hastert, Republican Congressman John Sweeney told “The Washington Post” today, quote, “The time is ripe for us to do some soul searching and have an open dialogue about the direction of the house.”

One step below Hastert's position is the one DeLay held.  And now acting Majority Leader Roy Blunt is facing a challenge by Congressman John Boehner.  But colleagues point out that both men received money linked to Abramoff, and other members are considering running as well.

Meanwhile, it's now clear the Abramoff corruption scandal is linked not only to actions related to Indian tribes but also to efforts to stop the postal service from increasing mailing rates.  The Magazine Publishers of America confirms that it gave money to Jack Abramoff's firm. 

Abramoff has reportedly told investigators he used part of that money to bribe members of Congress on the issue. 

(END VIDEOTAPE)

SHUSTER:  The issue now, of course, is the Abramoff's scandal's political fallout.  Democrats are claiming at every opportunity that Republicans have created a culture of corruption. 

The question is, what do the voters see?  And could that lead to Republicans losing control of Congress in the 2006 midterm elections? 

I'm David Shuster for HARDBALL in Washington. 

O'DONNELL:  Thank you, David.  We'll have more on the leadership fight later in the show. 

Now with the stench of scandal seeping through Congress and beyond, another tense fight plays out in the U.S. Senate, the showdown over Supreme Court nominee Samuel Alito, whose hearings began today.  Take a look. 

(BEGIN VIDEO CLIP)

SEN. EDWARD KENNEDY (D) MASSACHUSETTS:  In an era where the White House is abusing power, it is excusing and authorizing torture, and is spying on American citizens, I find Judge Alito's support for an all powerful executive branch to be genuinely troubling. 

SEN. LINDSEY GRAHAM ® SOUTH CAROLINA:  My biggest concern, members of this committee, is if we don't watch the way we treat people like Judge Alito, we're going to drive good men and women away from wanting to serve. 

(END VIDEO CLIP)             

O'DONNELL:  And we're joined by another good man, Ted Olson, who served as solicitor general in the Bush administration, which means he spent a lot of time before the Supreme Court. 

Let me ask you, Ted, given what's going on, this political climate in Washington, do you think the Democratic party feels emboldened to really challenge Sam Alito? 

TED OLSON, FMR. BUSH SOLICITOR GENERAL:  Well, I think they made up their mind a long time ago that they were going to do anything that they possibly could to defeat this nomination. 

Unfortunately, that's spilling over into some conduct that is not consistent with the dignity of the Supreme Court, and not consistent with the dignity of a fine judge like Sam Alito.  I hate to see it happen.  This is not the way politics or especially Supreme Court nominations should play out. 

O'DONNELL:  Now rMD+IT_rMDNM_I know you watched every minute of each senator's speech today, right?

OLSON:  I was glued to the television.

O'DONNELL:  All 18 speeches.  Ten minutes a piece. 

OLSON:  Well, not every word. 

O'DONNELL:  Not every word.

But did you get the sense though the Democrats today are really trying to put the White House on trial, if you will, during the Sam Alito confirmation hearing? 

OLSON:  Well, yes, I think they are, and there's a good reason because Sam Alito is such an extraordinarily well qualified person.  American Bar Association unanimously gave him the highest approval for his ability, his temperament and his qualifications. 

So it's going to be very hard to fight Sam Alito, but it's much easier and they're much more comfortable fighting the White House.  So that's what they're doing.  They're trying to tarnish Sam Alito by attacking the White House. 

O'DONNELL:  Supporters of Sam Alito point out that he is the most qualified nominee in 70 years because of his experience.

But at the same time because he has spent so much time on the bench, he has quite a paper trail, which the Democrats have spent a lot of time digging through, which has given them an opportunity to throw some charges and some very tough questions at him. 

OLSON:  Well, he's been a federal judge for 15 years.  Before that, he was in the Justice Department for 15 years.  He was in the solicitor general's office arguing before the Supreme Court.  He was the United States attorney prosecuting criminals. 

But he does have a long record.  Rendering decisions as an appellate court judge for 15 years, he's earned the respect of lawyers who have practiced before him.  He's earned the respect of all the judges with whom he practiced, regardless of their political spectrum. 

So yes, there's plenty of opinions to pull out things out of context and that's exactly what's going on.  In context he's a very, very fine and very fair judge. 

O'DONNELL:  Do you acknowledge that there is an enormous amount at stake in this hearing with Sam Alito? 

OLSON:  Well, it's very important that—the Supreme Court itself is very important. 

O'DONNELL:  But also because this is for the seat of Sandra Day O'Connor.  This is a very, very big deal. 

OLSON:  Well, Justice O'Connor, who I respect enormously, is an important member of the Supreme Court, and she's more or less at the center of the Supreme Court.  And, of course, that's what motivates a lot of the contest and that's what behind your question.

But every justice on the Supreme Court is important.  Every justice brings their own personality, their backgrounds, their integrity to the court and so every appointment is important.  And there's no rule that says that an appointment to the Supreme Court has to duplicate the person that's being replaced.  We've never had that concept before us before. 

O'DONNELL:  Do you know Sam Alito?  Do you acknowledge that he will shift the court to the right? 

OLSON:  I don't think—I do know Sam Alito.  I've known him since he first started in the Justice Department.  Incidentally, he started the same year in the same Justice Department as Chief Justice Roberts. 

O'DONNELL:  Yes.  But would you call him anything other than a conservative? 

OLSON:  He's a conservative jurist, but Justice O'Connor was a conservative jurist.  And she rends decisions.  She calls them as she seems them.  She looks very carefully at the facts.  And Judge Alito has done the same thing for the last 15 years.

O'DONNELL:  But Sandra Day O'Connor disagreed with Sam Alito when it came to the issue of abortion rights particularly in the Planned Parenthood v. Casey case. 

OLSON:  Well, that's because Justice O'Connor shifted her position somewhat.  Judge Alito, in every case involving abortion and every case involving anything else, was very carefully trying to discern what the Supreme Court had already decided. 

And in that abortion case that you mentioned, if you look at his opinion, he was following precisely what Justice O'Connor had said in previous opinions.  Now she shifted her position somewhat, and the court overruled that aspect or would of overruled what Judge Alito said in that case.  But it was a very narrow part of the case.

O'DONNELL:  There are going to be two very big issues in these hearings and why they are going to be so fascinating to watch, so historic for many people to watch.  The first has to deal with the issue of abortion rights.  The second has to deal with executive authority, how much power should the presidency have.

On the first issue, abortion rights, we know that Samuel Alito, when he served in the Reagan administration, wrote in this letter in 1985 that he was personally opposed to Roe v. Wade, that he believes Roe v. Wade should be overturned.  How can he convince these senators, both Republicans and Democrats, that his personal feelings are not going to make him impartial when it comes to being a jurist? 

OLSON:  That's an easy one. 

O'DONNELL:  Easy? 

OLSON:  It is easy to answer your question.  Justice O'Connor said when she was appointed, she was personally opposed to abortion.  Judge Alito has ruled a number of times in cases striking down provisions of abortion statutes, applying what The Supreme Court said the law was. 

Indeed, his record shows that he follows precedent, he carefully analyzes the issues, and he carefully applies The Constitution, and he sets aside his personal views to apply The Constitution as it's written and as it has been interpreted by The Supreme Court.  I am convinced he will continue to do that if he's confirmed by the Senate. 

O'DONNELL:  We know many of these justices serve into their 70's and 80's.  They serve for decades on this court.  If you and I were to come and sit back on this set 10 years from now and of course look just as fabulous, would you wager that abortion will be more prevalent in this country or less prevalent because of The Supreme Court? 

OLSON:  Oh, because—I—I seriously doubt whether there's going to be any significant changes in abortion jurisprudence, in The Supreme Court. 

O'DONNELL:  They could probably do more restrictions on abortion? 

OLSON:  Well, states are acting in these areas and some of those restrictions The Supreme Court has already upheld, some of them The Supreme Court might in the future uphold.  I have no idea what Samuel Alito is going to do. 

O'DONNELL:  But if you had to bet your house. 

OLSON:  If I had to bet my house, I don't think things would look terribly different than they do today. 

O'DONNELL:  Let talk about the other—

OLSON:  I don't know if anybody would want my house. 

O'DONNELL:  Well, let's talk about the other big issue that's certainly going to be a focus of these Supreme Court hearings and largely, reflect what is the political climate going on in Washington right now, which is a concern by the Congressional branch that the Executive branch may, including this administration, may have gotten too much power when it comes to the N.S.A. spying.

They have been working without court warrants to spy on Americans here at home.  We know that Judge Alito in speeches before The Federalist Society has talked about a—the authority of the Executive branch that should be expanded.  Why shouldn't people be concerned about that? 

OLSON:  Well, first of all let me say this with respect to the program.  As I understand it, it is intercepting communications from abroad and to abroad, al Qaeda terrorist communications, it's not spying on American citizens.

But to go back to the point of your question, Judge Alito has expressed himself on issues of separation of powers.  There are certain areas where the judiciary is the final word, many where Congress is, and some where the president is. 

When the president is acting as commander-in-chief, making battlefield decisions, intercepting communications by enemy commanders in a battlefield, the president has a great deal of authority.  I think at the end of the day, what Judge Alito will do is he has a great deal of respect for the separation of powers, and checks and balances.  And he will apply The Constitution fairly and reasonably and he won't hesitate to check executive power when it's important to do so. 

O'DONNELL:  Well, I know we'll both be watching again tomorrow as it heats up with a lot of senators asking questions.  Thank you, Ted Olson. 

Up next, a former counsel to the Senate Judiciary Committee will give us his take on the Abramoff scandal and Tom DeLay's legal fortunes.

And later on HARDBALL, author James Risen on what he calls the program, the ongoing eavesdropping operations on the phone calls and emails of hundreds of Americans. 

You're watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REP. TOM DELAY, (R-TX):  In the 21 years I have been in Congress, I have always acted in an ethical manner within the rules of The House and the laws of our land and time once again will bear that—bear out that truth. 

(END VIDEO CLIP)

O'DONNELL:  Welcome back to HARDBALL.  That was former House Majority Leader Tom DeLay over the weekend discussing his decision not to run again for the Republican leadership position. 

For the latest on the futures of Tom DeLay, Jack Abramoff and Dennis Hastert, we go now to John Flannery, a former counsel to the Senate Judiciary Committee and a former federal prosecutor.  Welcome John.

JOHN FLANNERY, FMR. COUNSEL, SENATE JUDICIARY CMTE:  Good to be with you.

O'DONNELL:  How big political trouble is Tom DeLay in? 

FLANNERY:  I was just listening to him.  He's no longer a political thug, now he's a comedian.  He was trying to tell us he had been ethical the entire time he had been there.  Finally he's in a Mayday situation.

He's diving, going to crash and burn, and it took this to have the Republican party take a step back from him.  They only took the step back because they're so inextricably intertwined with his corruption, they've had no choice. 

O'DONNELL:  So you're a Democrat? 

FLANNERY:  I'm a Democrat, but I'm also a patriot and what these guys have done to steal from us voters the government, is outrageous and you don't get access, you don't get time, unless you you're a paid contributor.

We know this because it started with his K Street Project, which some might look back on now and say it was part of the continuing criminal enterprise as a predicate to where we find ourselves today. 

O'DONNELL:  But you're, as a former prosecutor, they now have the cooperation of Michael Scanlon, they now have the cooperation of Jack Abramoff.  Just last week started really sitting down and talking to prosecutors. 

How much does The Justice Department know now and why haven't they interviewed, for instance, Tom DeLay?  If they haven't interviewed him, maybe he's not that heavily involved? 

FLANNERY:  Well, they may not publicize it either.  You might add to that list Duke Cunningham.  What we do have is a series of people who can tell us about conversations, so when you make corruption cases, the hardest thing is what was your intent.  Well, if you have Abramoff and these other people saying what they said, then you're in a different place.  If you have a tape recording in the Cunningham case, you're in some place else. 

O'DONNELL:  You're referring that Duke Cunningham, we just find out last week, “TIME” magazine did some exclusive reporting, that in fact Duke Cunningham wore a wire at The Justice Department.  We don't know who, but he may have had conversations with other lawmakers, lobbyists, who knows.  That could be a bonanza on that case.

FLANNERY:  That's probably a defense industry emphasis, whereas we have the casino gambling over here and Internet gambling and the Marianas.  It's a mess, 200 people received contributions.

O'DONNELL:  But I really want to break this down legally, because it's one of the questions I have.  Tom DeLay says he's not done anything wrong.  I've spoken with Tom DeLay's attorneys.  He says he's not yet been interviewed by the Justice Department, by federal investigators.  They've not subpoenaed documents from him.  Why wouldn't they have done that yet? 

FLANNERY:  Well, they may not have to talk to him.  There are two ways to run a prosecution.  As a recovering federal prosecutor I have done it both ways.

One is you would talk to the target first up.  Give him a chance perhaps under oath to give you whatever his or her story is.  In this case, they may have decided to build toward DeLay, who is more obviously given his position in the government a target, rather than a cooperating individual. 

Abramoff is in the lucky position as the accused of having people he can give to the government building to a pyramid of others, including perhaps DeLay. 

O'DONNELL:  And Abramoff knows where the bodies are buried essentially? 

FLANNERY:  He does.  And he probably knows what documents he has and how to get there in a way that even with the e-mails the government has, they don't appreciate. 

O'DONNELL:  All right.  Well thank you to John Flannery.  We really appreciate it. 

Up next the debate continues.  Civil liberties versus national security.  Did the Bush administration cross the line?  James Risen broke the story on domestic spying.  He'll be here and tell us more about it.  You are watching HARDBALL only on MSNBC.

(COMMERCIAL BREAK) 

O'DONNELL:  And welcome back to HARDBALL.

“The New York Times” first reported about the National Security Agency's secret domestic spying program nearly a month ago, and the fallout has rocked Washington since as the Bush administration defends itself against charges that it has illegally or unjustifiably expanded its powers. 

James Risen is one of the reporters who broke that story and his reporting on that is part of his new book called “State of War:  The Secret History of the CIA and The Bush Administration.”

Jim, thank you for joining us. 

JAMES RISEN, AUTHOR, “STATE OF WAR”:  Thanks for having me. 

O'DONNELL:  How did you find out about this super secret program? 

RISEN:  Well, some people in the government came to me because they were deeply concerned that they thought something illegal was going on, something very wrong.  And some of them thought that it might be unconstitutional. 

And so I think people—also my colleague Eric Lichtblau began to hear the same thing.  And we began to realize that there was a major program that we didn't—no one knew about, that a lot of people in the government were deeply concerned about and were troubled by. 

O'DONNELL:  The president says that this NSA spying program that is going on without court warrants only spies on few Americans who are talking to perhaps al Qaeda operatives.  How many people did you find out are being listened to every day? 

RISEN:  Well, as best we can determine, roughly 500 people inside the United States are being eavesdropped on without warrants at any one time. 

O'DONNELL:  That's a lot, isn't it? 

RISEN:  I think so, and I think over a period of three or four years that this program has been in place, that 500 has changed, rotated in and out, and so we've been told that it's safe to say that thousands of people have been listened to. 

O'DONNELL:  Your reporting has set off a firestorm, of course, here in Washington.  The president responded to “The New York Times” story by saying whoever leaked this, it was a shameful act.  Why did you allow this to be reported? 

RISEN:  Well, I think the people who stepped forward are American patriots, because they came forward for the best reasons possible.  They came forward, I think, because they believe something wrong was going on in the government. 

And now we can have a national debate about whether it was wrong or right or whether it's legal or illegal.  I don't know the answer to that.  I think the lawyers and the constitutional scholars in Congress and the courts and the president can all decide that.  My job is just to report on it. 

O'DONNELL:  The president says it was shameful.  The Justice Department says it's now investigating.  Have you talked to any of your sources since and are they worried? 

RISEN:  Well, I'd rather not get into any conversations or discussions I had with my sources.  But I think, as I said, I just think that these people did this for the right reasons.  I think it was the most classic case of whistle blowing I've ever seen. 

O'DONNELL:  Can you be more specific about what you learned about the NSA spying?  You say as many as 500 a day.  How widespread is this? 

RISEN:  Well, one of the problems is that we don't know precisely who they are listening to, because there's very little oversight of the program.  And that's one of the things that troubled the people who stepped forward to talk about it. 

The NSA is allowed to choose who they eavesdrop on without specific prior approval from the Justice Department or the White House, and so the NSA decides who they're listening to and there's no—virtually no independent oversight or approvals they have to get for each individual wiretap or eavesdropping operation. 

And so that makes it very difficult to determine whether there's been abuses or not. 

O'DONNELL:  Is it possible that there may have been spying on journalists? 

RISEN:  I don't know.  I mean, there's been rumors and reports of that, but we don't know that now.  And I think that further reporting on this whole issue of where there's abuses is something that I think a lot of journalists are now trying to do. 

O'DONNELL:  All right.  We will be back.  More with James Risen when we come back. 

(COMMERCIAL BREAK)

(STOCK MARKET REPORT)

O'DONNELL:  Welcome back to HARDBALL.  We are talking with James Risen, author of “State of War: The Secret history of the CIA and the Bush administration.”

Jim, on page one of this book, you tell an amazing story about the president of the United States hanging up on his father.  What was that about?

RISEN:  Well, what I was told by very well-placed sources was that there was a long period of friction between the current president and his father over the—his father's view that the president was listening and was focusing too much on the advice of people like Donald Rumsfeld and some of the neoconservatives within the administration, rather than the more moderate advisers like Secretary of State Colin Powell.

And that this kind of climaxed in an argument in which the president hung up on his father, and then called him back and apologized.  And I gather the argument—things smoothed over, but this argument leaked out to other people in the administration, and other people who believed that this was kind of a symbolic of the larger rift between the moderate wing of the Republican Party and the current Bush administration. 

Which has been just been lying just beneath the surface over the last few years.  The—kind of the foreign policy professionals within the Republican Party who tended to be moderates, even during prior Republican administrations like the Reagan administration, the first Bush administration.

O'DONNELL:  Well, how was it that these neoconservatives managed to gain so much power in this administration?

RISEN:  I think that's the $64 question that is still never been fully answered, and ...

O'DONNELL:  ... Dick Cheney and Donald Rumsfeld.

RISEN:  Yes, I think what it boils down to is that Dick Cheney and Rumsfeld had this long-standing friendship going back to the '70s, maybe even earlier.  And that when they came in, they kind of dominated everything.

They set up this back channel control over foreign policy between the vice president's office and the office of the secretary of defense, that trumped almost at every turn the secretary of state and even the national security adviser, Condoleezza Rice, who some of her former aides at the NSC believed had to frequently kind of keep—try to catch up to what Rumsfeld and Cheney were doing.

O'DONNELL:  Do you have any evidence that it was the vice president and the secretary of defense who pushed the president to expand his presidential authority in the wake of 9/11 and do this type of NSA spying without the court warrant?

RISEN:  Well, Vice President Cheney was clearly deeply involved in the NSA operation.  The first briefings for the handful of congressional leaders in 2002 that were held, were held in Vice President Cheney's office.

And the vice president himself, along with then-NSA Director General Michael Hayden and then-CIA director George Tenet, personally briefed the chairman and vice chairman of the Senate and House Intelligence Committees, and ordered or—they kind of ordered them never to discuss this with any of their aides or any other members of Congress.  So the first briefings on this matter were held personally in Vice President Cheney's office and he led the briefings.

O'DONNELL:  Jim, I have to ask you, because there's been some questions raised about the credibility with “The New York Times” in dealing with this story.  “The New York Times” decided to hold this story for more than a year.  You knew about it, you had the reporting down pat, all throughout the presidential election—why was the story held?

RISEN:  Well, I've agreed not to—with the Times, not to get into that, but I would like to say that I think the Times has performed a great public service by publishing the story and I think—I think that's the focus that deserves to be given to the Times.

O'DONNELL:  Was it because the Times was concerned that this type of an explosive revelation might alter the outcome of the 2004 election?

RISEN:  Well, as I said, I would just rather focus not on the Kennedy inside baseball of the Times, but on the fact that we have now scooped...

O'DONNELL:  Well I don't understand why it's inside baseball?  Why is it inside baseball?  You're holding a story that deals with one of the most important issues in our country, and that is the expansion of presidential power where Americans may be spied on, where hearings are upcoming, the Justice Department is now going to be investigating—why should that have been a story that was held?

RISEN:  Well, as I said, it wasn't my decision.  You know, the Times made the decision.  I now believe that the focus should be on the fact that we scooped the world and that we've performed a public service by bringing it to the people so that we can have this national debate today on domestic espionage.

O'DONNELL:  You did scoop the world on this story, and now in many ways, you are threatened because the Justice Department is investigating.  Are you willing to go to jail to protect your sources?

RISEN:  Well, hopefully it won't come to that.  I'm hoping that I won't have to think about that, but I will protect my sources.

O'DONNELL:  To what end, to jail?

RISEN:  As I said, I would rather not have to answer that question now, and I'm not facing that issue right now, so—but I will protect my sources. 

O'DONNELL:  You do some amazing reporting about the lead up to the war in Iraq.  When we talked a little bit about the power of the vice president and Rumsfeld.  And you also say that there was a war fever inside the CIA.  What do you mean by that?

RISEN:  I think one of the problems inside the CIA right before the war was that it was very weak management controls placed on the—kind of the way in which intelligence on weapons of mass destruction was being brought up through the chain of command.

And there was a sense, I believe, because the management controls were so weak, there was a—it became very easy, I think, for intelligence that seemed to corroborate the existence of WMD to go right to the top through the, you know, right to the top of the CIA and then to the White House, very quickly without much vetting, while skepticism was basically ignored.

O'DONNELL:  Is that George Tenet's fault?

RISEN:  I think there was a broader management failure at the CIA.  I don't think you can blame any one person.  But at the same time, there was clearly pressure from the administration.  It became very obvious what the right answer was, whether there was any specific decision made to make that clear, it's very difficult to tell.  I think this is kind of like workplace harassment, where it's always difficult to tell how a workplace environment develops, but in the end you kind of know.

O'DONNELL:  But do you have any evidence that because George Tenet was very well liked by this president on a personal level, they hit it off together, that he knowingly withheld information about Iraq's weapons of mass destruction or lack of weapons of mass destruction from the president, so as not to upset him? 

RISEN:  No, no, I don't.  I can't say that. 

What I can say is that there were a number of people within the CIA who—and I think this was very broadly felt within the CIA, that most people in the CIA assumed that Iraq had weapons of mass destruction. 

But many of the key people were skeptical that the U.S. had adequate evidence of that, and some of them believed that the intelligence was weak to prove the case that there was WMD.  And those people, who were skeptical of the quality of the intelligence to prove that basic assumption that there was WMD, were either ignored or found it very difficult to get a hearing. 

O'DONNELL:  The CIA issued a stinging statement about your book, saying that every single chapter was filled with serious inaccuracies, and they called it an unfathomable and sad disregard for national security.  Are you surprised by that reaction by the CIA? 

RISEN:  Not particularly, no.  I mean, I think that...

O'DONNELL:  Are they wrong? 

RISEN:  Well, I think so.  I believe that one of the issues that we have to face is that there's been a growth in the whole secret side of the government since 9-11, a secret infrastructure that we are only now beginning to understand pieces of. 

And what is needed now is very aggressive, independent investigative reporting, to begin to look at what kinds of infrastructure have been created in the intelligence and military communities, like the NSA operation, that raise serious questions. 

O'DONNELL:  And are you proposing that infrastructure was created by this administration to further their goals in a secret way? 

RISEN:  Yes.  I think that the war on terror has been used to take on many things that the government did not try to do prior to 9-11, and in many cases, there probably is a good justification for it. 

But I think what has happened is that we have seen just an exponential growth in, as I said, a secret side of the government and the only way for the American people to understand that is through aggressive investigative reporting. 

O'DONNELL:  All right.  Well, Jim Risen, thank you very much for your insight.  It's a fascinating read. 

RISEN:  Thank you.

O'DONNELL:  Up next, more of our conversation with James on tomorrow's HARDBALL about the fallout from his book, and charges that his reporting has endangered national security. 

Up next, with Tom DeLay in troubled waters, who should lead the Republicans on the Hill?  Republican National Committee Chairman Ken Mehlman will join us.  This is HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

O'DONNELL:  Welcome back to HARDBALL.

Ken Mehlman is the chairman of the Republican National Committee.

Ken, how are you?

KEN MEHLMAN, RNC CHAIRMAN:  How are you doing?

O'DONNELL:  I watched those hearings all day long today, and the Democrats look like they're ready for a battle.  Are you prepared for a knock down, drag out fight? 

MEHLMAN:  We are if we have to be.  I hope that doesn't happen.  I felt, as I watched those same hearings, a couple thoughts came to me. 

First of all, I thought it was moving, Samuel Alito's description of his background, to think that his dad was an immigrant from Italy and think of the accomplishments of this family.  How proud everybody in the family must be of him. 

And when he talked about the rule of laws, the great leveler.  The great way that the powerful are humbled and that the weak have opportunity, I thought it was right on point. 

I was disappointed to hear some of the Democrats during their opening statements.  We counted and we found 18 misstatements or mischaracterizations in the opening. 

And I hope that the Democrats, they have to make a fundamental choice, either they're going to provide dignified hearings that allow this man that has the highest possible rating by the American Bar Association to have a fair hearing or they're going to follow the Ted Kennedy-Howard Dean playbook, whatever it takes, whatever mischaracterization, however low or dishonest it is, they're going to say that and they're going to attack him. 

I hope they don't follow that approach.  I hope they instead take the high road.  That's what the American people I think want to see. 

O'DONNELL:  But clearly there will be issues in this hearing about two major topics, abortion and executive authority.  And on the issue of abortion, clearly Sam Alito is going to be asked about this 1985 memo he wrote in which he seemed to advocate that his personal view is Roe vs.  Wade should be overturned. 

How does he separate his own personal views from what he will do on the Supreme Court? 

MEHLMAN:  Well, that's fundamentally what he believes, what I believe, what John Roberts believed and what President Bush believes the job of a judge is.  What Sam Alito's opinion is, whether it is liberal or whether it is conservative, doesn't matter.  What matters is how he believes a judge should operate.

And if you look at his 15 years of jurisprudence on abortion, what you have is someone who calls it according to the law, according to the constitution and according to how he sees it.  He's had some decisions that have made people that are pro-life happy.  He's had other decision that have made people that support the legal abortion happy. 

He's had it both—he's called it both ways or he's called it how he's how he's seen it based on the law.  And that's I think what you want in a judge.  You don't want a judge that comes in with a litmus test.  You don't want a judge that pre-judges these things.  You want a judge that like an umpire calls it fairly.

O'DONNELL:  But given that, many of the conservatives, who were upset with the Harriet Miers nomination, were happy with the Sam Alito nomination because they believe that, fundamentally, he's going to be a conservative jurist and they believe he espouses a conservative philosophy.  Do you acknowledge that Sam Alito will help move the court to the right? 

MEHLMAN:  I acknowledge that Samuel Alito in some cases—

O'DONNELL:  We're experiencing some technical difficulties by Ken Mehlman, who is the Chairman of the Republican National Committee.  We will try to reestablish that link and when we come back too, we'll hear from Kate O'Beirne, who has written a new book called, “Women Make the World Worse.”  She has a lot to say about feminists and feminism and whether the abortion issue will make or break the Alito nomination to The Supreme Court.  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

O'DONNELL:  And we are back with a very fun segment.  Kate O'Beirne is the Washington editor of The National Review and the author of “Women Who Make the World Worse:  How Their Radical Feminist Assault is Ruining our Schools, Families, Military and Sports.” 

Thank you, Kate.  So who are these women who make the world worse? 

Give me the roster? 

KATE O'BEIRNE, NATIONAL REVIEW:  I do name names.  I find you have to name names because my feminist friends deny that they stand for certain things.  And I quote and name mainstream, celebrated feminists, not marginalized figures. 

They're the kind of women who claim that they don't, and haven't, denigrated marriage and motherhood.  Yes, they do. 

They're the kind of woman who claim they're not hostile to men. 

They're hostile to men and little boys because they're men in the offing. 

They're the kind of woman we don't pay enough attention to.  Too many people think feminism is a spent force.  That's so 1970's.  They don't realize how influential the feminist agenda is.  The feminist ideology is in our schools, on our campuses.  We certainly saw that with the trouble Larry Summers at Harvard got into.  Boy, was that brutal. 

When he said very unremarkable things at an academic conference and we saw what a grip Harvard is into the feminists.  Enormously influential on Capitol Hill.  That won't come as a surprise to you.  They're the kind of women who have hyped the phony gender gap in politics to intimidate politicians into thinking that they represent American women.  We're going to see that on display with the women's groups opposing Sam Alito. 

O'DONNELL:  But there is a gender gap.  There is a gender gap that exists, that there are more women who vote for Democrats.  This president tried to court the so call security moms.  There is a gender gap.  Men and women vote differently. 

O'BEIRNE:  The way the women's groups hype it, which intimidates politicians, is by pretending it is owing to a monolithic vote on the part of women.  You recognize because you cover politics.  That is simply not the case. 

John Kerry, yes, he carried overall women by three points.  He lost white women by 11 points.  He lost married women with no college education by 16 points.  There is no monolithic women's vote and there is no view of monolithic so-called women's issues. 

O'DONNELL:  Your main dig is that feminism has led to this belief that all women want the same thing.  Which is that we want a family and a career.  We all want the right to have an abortion.  We all want equal pay.  And that has been a bad thing. 

O'BEIRNE:  Well, they profess—it has been a bad thing that they get away with claiming that's what all American women want.  Because it has fueled their success.  They have persuaded an awful lot of people that those are the demands of American women across the board. 

O'DONNELL:  Don't you think feminists, to some degree, have at least brought attention to issues like inequity in health care.  That there isn't amount the same amount of research on women as men.  That they've brought attention to the issue that women are still paid less than men. 

O'BEIRNE:  Norah, Norah, Norah. 

O'DONNELL:  Kate, Kate, Kate. 

O'BEIRNE:  You are so bright.  This is why my chapter on the phony pay gap is so important.  They get a lot of mileage out of the fact, the claim, that women work for 76 cents on the dollar.  Think about that for a minute.  If a woman with the same education level, skills, and experience would work for 76 cents to a man's dollar, who would ever hire a man? 

There is no discriminatory wage gap.  Being a woman in America is not in conflict at all with having a very successful career.  Now, being the kind of devoted mother and wife some women freely choose to be does conflict with many of the demands of a career. 

Never married, college educated women make more than never married college educated men.  But they have gotten such mileage out of the phony gender gap.  The kind of women who promote that in order to paint America as a discriminatory country with respect to women are the kind of women I name in my book. 

O'BEIRNE:  Kate, I have to ask you, because you have been a very successful woman and involved with The National Review.  The National Review is one of the first to say Tom DeLay should step down.  Do you think that this scandal now may also bring down the Speaker of The House Denny Hastert? 

O'BEIRNE:  I would be very surprised if that's the case.  My magazine just recognized a couple days before Tom DeLay himself recognized that it was not possible for him in this environment to come back.  We've defended him vigorously against what we see as phony charges in Texas. 

O'DONNELL:  The Republicans aren't done cleaning house just because Tom DeLay has stepped down. 

O'BEIRNE:  I don't see anybody else in leadership who is vulnerable.  And I hope, it is not clear to me yet, that the overall conference in The House appreciates how potentially damaging this scandal is.  That I think is the case.  With respect to all of them, because of the symbolism of this scandal. 

The symbolism of a Republican majority out of touch with the people who sent them here, who may have forgotten why they were sent here. 

O'DONNELL:  We will watch as Denny Hastert cancels his trip overseas, comes back to Washington, says let's start a reform agenda.  There's a lot going on on Capitol Hill.  Thank you, Kate.

O'BEIRNE:  Thank you, Norah. 

O'DONNELL:  The book is called “Women Who Make the World Worse.” 

And joining us tomorrow at 5:00 and 7:00 eastern for more HARDBALL, right now, it is time for “THE ABRAMS REPORT” with Dan Abrams.  His special guest tonight is John Ashcroft, the former attorney general.

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

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