updated 1/16/2006 10:42:49 PM ET 2006-01-17T03:42:49

Guest: Tony Lagouranis, Kenneth Bass, Steve McMahon, Richard Ginsberg

CHRIS MATTHEWS, HOST:  So what does it feel like to actually torture someone?  What drives the other side to endure it?  Tonight we talk to someone who knows, a former U.S. army interrogator.  Let‘s play HARDBALL.

Good evening, I‘m Chris Matthews.  And welcome to HARDBALL.

The tentacles of the Abramoff scandal reached out and grabbed another victim this weekend.  Republican Congressman Robert Ney of Ohio, currently under investigation in the lobbying probe, announced he will temporarily step down as chairman of that very committee that would be overseeing lobbying reform. 

While denying any wrongdoing, Ney‘s decision came just days after reports that the speaker of the House, Dennis Hastert, was putting pressure on the congressman to give up his role as chairman of the House Administration Committee. 

Plus, the race to replace Tom DeLay as majority leader is heating up, as the “National Review,” one of the most powerful conservative voices in the country, comes out with an endorsement for the underdog, John Shadegg, of Arizona.  More on this later. 

We begin tonight with a former U.S. Army interrogator, who has just come forward with details of widespread military abuse of Iraqi prisoners during his tour in Iraq. 

Former Army Specialist Tony Lagouranis served as an interrogator in Iraq from 2004 to 2005.  That‘s last year.  He was stationed at the Abu Ghraib Prison two months after Iraqi detainees were abused there.  And he was later dispatched to Fallujah. 

Tony, welcome.  Thank you. 

TONY LAGOURANIS, FMR. ARMY INTERROGATOR:  Thank you, Chris. 

MATTHEWS:  Let‘s talk about a lot of this that we don‘t know about. 

We‘ve heard a lot about this from theoreticians, but you‘ve been there. 

You were an interrogator. 

LAGOURANIS:  Right. 

MATTHEWS:  Who are most of the people that we capture, detain and interrogate?  Are they Iraqis that don‘t like the new order there after Saddam Hussein or are they foreigners who come in to fight for Jihad?  Who are they? 

LAGOURANIS:  Well, first of all, I‘d like to say that 90 percent of the people that I saw were in my opinion innocent.  And that was a pretty common figure that interrogators came up with that I spoke to. 

MATTHEWS:  How did we capture them?  Or why did we capture them? 

LAGOURANIS:  Often people are captured when they find a weapons cash, for instance, maybe hidden in a canal or hidden in a building.  And they don‘t know who the weapons belong to, so they just will go around and arrest people in the proximity of that cash for questioning. 

But they end up getting accused of maintaining that weapons cash.  That‘s just one way that people get arrested.  I could give you specific instances. 

MATTHEWS:  And most of them are Iraqis? 

LAGOURANIS:  Most of them.  The vast majority of them are Iraqis. 

Yes. 

MATTHEWS:  And when we bring them in, they just start rubber hosing them or start assuming their guilty?  Or what‘s the approach we take to prisoners?

LAGOURANIS:  Well, it depended on where you were.  I recall one unit, they told me that everybody who comes into that prison, everyone who is arrested is guilty.  And they really would only release people if there was overwhelming evidence that they hadn‘t...

MATTHEWS:  So you had to prove your innocence? 

LAGOURANIS:  Exactly.  Right.  Often I had to prove their innocence.  But the units who were responsible for releasing them or sending them up to Abu Ghraib wouldn‘t often listen to our recommendations. 

MATTHEWS:  Why did they assume because they picked them up in a sweep that they were guilty of actions against our new government over there?  

LAGOURANIS:  Well, I think there are two reasons for that.  The first one is that there‘s a mistaken belief that every Iraqi knows who the insurgents are.  So even if they, themselves didn‘t commit a crime, weren‘t hostile to the Americans, they knew who were hostile.  And so if they weren‘t talking to us, it was because they were sympathetic to the insurgents.  So that was one part of it. 

Another part was that when the detainee unit arrested somebody, they wanted that person to be guilty.  They wanted a confession out of them, and they didn‘t want to hear that they were making bad arrests.  And so it made their commander look better. 

MATTHEWS:  Who‘s the they here you keep talking about? 

LAGOURANIS:  Well, I worked with different units all over Iraq.  In particular, one of the worst units for this type of behavior was the 24th Marines.  I worked with them in north Babel. 

MATTHEWS:  And these were captains, majors?  What rank are people that talk to you, tell you what to do? 

LAGOURANIS:  The person in charge there, who I feel was setting policy was Colonel Johnson. 

MATTHEWS:  A colonel? 

LAGOURANIS:  That‘s right.  And the person who was sort of in charge of the judicial process was a lieutenant colonel. 

MATTHEWS:  And what did you watch them do?  I mean, you were doing it, so it‘s not a question of watching it.  What were you doing when you were interrogating people, these people that were picked up in sweeps that you thought were innocent? 

LAGOURANIS:  Well, let me give you an example of how the system worked.  I would get somebody, a prisoner, that they had picked up at a checkpoint.  This person had in his car a shovel and cell phone.  He didn‘t have any weapons or explosives.  He wasn‘t on a black list. 

And so I take this evidence that they think—the detainee unit thought that he could use these things to plant an IED and use the cell phone to detonate it.  So I interrogate him, and his story checks out of why he has these things.  There is nothing else to incriminate him.

I send up my report, and they send it back to me and say no, he must have something.  He is guilty.  We interrogate this guy maybe five times, and they still refuse to believe our recommendation that he hadn‘t done anything. 

MATTHEWS:  And you‘re saying 90 percent of the people that are picked up are innocent or not involved in the insurgency against the new government over there? 

LAGOURANIS:  That‘s in my experience.  I think 90 percent might be a conservative number even. 

MATTHEWS:  What do we do with people when we determine that they are guilty? 

LAGOURANIS:  Well, in these outer detention facilities, they would get sent to be Abu Ghraib or Bucca to be processed there.  And if they‘re not guilty, once they‘re sent to these larger facilities, it often takes months to process them. 

MATTHEWS:  Well, if they aren‘t guilty what happens? 

LAGOURANIS:  If they‘re judged guilty then they‘ll either get sent to the Iraqi police and sent through an Iraqi judicial process or they‘ll stay in Abu Ghraib for further questioning. 

MATTHEWS:  Well, what‘s the punishment though? 

LAGOURANIS:  I don‘t know what happens to them once they get to the Iraqi judicial process. 

MATTHEWS:  Well, do they disappear?  Did you ever hear from them later, people that you thought were innocent? 

LAGOURANIS:  I never heard from them later. 

MATTHEWS:  Are we executing people over there?  Are we putting them in prison camps beyond contact with everyone else?  Are we banishing them to some outer place in Iraq? 

LAGOURANIS:  I can‘t really say. 

MATTHEWS:  You really don‘t know what happened to all those people? 

LAGOURANIS:  I have no idea. 

MATTHEWS:  Did you ever ask? 

LAGOURANIS:  I don‘t recall ever asking.  Once they were out of the prison, they were out of my hands, and I got no feedback from them. 

MATTHEWS:  Because it seems to me you took an interest in trying to find the truth and in determining whether a person was actually an insurgent or terrorist or whatever or was actually an innocent bystander, and you were concerned because you thought what would happen to them if they were judged to be guilty. 

LAGOURANIS:  That‘s right.

MATTHEWS:  Well, I‘m asking that as a question.  What were you worried would happen to people who were innocent? 

LAGOURANIS:  That they would spend too long in prison.  You know, it was sort of in a transition period during the year that I was there.  People were just crowding into Abu Ghraib and crowding into Camp Buka.  And they were staying there. 

And that‘s when we started transitioning to moving them out to an Iraqi judicial process.  But I don‘t know what happened to them at that point.  And I would have had no access to that information. 

MATTHEWS:  Let‘s talk about the people who were guilty, the 10 percent, as you see it.  What drove them to attack our forces or attack the forces of the new government?

LAGOURANIS:  Well, I would ask them that.  And when they were being frank with me I felt they told me—a lot of them mentioned the Abu Ghraib scandal.  The pictures that came out of Abu Ghraib. 

MATTHEWS:  But they were involved in insurgency before the Abu Ghraib. 

That‘s a chicken and egg thing.  I mean they didn‘t get involved... 

LAGOURANIS:  Well, it depends on who you‘re talking about. 

MATTHEWS:  Well, the people in Abu Ghraib at the time of the atrocities weren‘t there because of Abu Ghraib. 

LAGOURANIS:  That‘s right. 

MATTHEWS:  OK.  Well, they were there—tell me what the main opposition to the United States is based on there?  What is the main opposition just nationalism?  They don‘t like foreigners in their country.  Is it Sunnis who know that we‘re going to put the Shia in power?  What is it that drives the fighters over there to risk their lives and face prison?

LAGOURANIS:  I really can‘t answer that question, because I wasn‘t able to get an honest answer from enough people that I was convinced were insurgents.  So I can only give you a few examples of answers I got. 

I can tell you though that I knew interrogators who had interrogated at Fallujah during the last offensive in November, and they were getting a lot of foreigners coming in.  I very rarely saw that, where we were getting Syrians.

MATTHEWS:  From where?  What countries? 

LAGOURANIS:  Syria, Saudi Arabia, Jordan, north Africa.  And mostly from what these interrogators told me, these people were mostly young college students.  Maybe they were studying Islam, and they were enraged by the American occupation, by the pictures that came out of Abu Ghraib, and they came to fight the Jihad. 

MATTHEWS:  For the Jihad against the crusaders? 

LAGOURANIS:  That‘s right. 

MATTHEWS:  Tell me about it.  Because I know this from talking to our producers that you talked about north Babel.  Tell me about where north Babel is in Iraq.

LAGOURANIS:  It‘s south of Baghdad.  It‘s about 15 minutes from Baghdad International Airport. 

MATTHEWS: Is this the Babel from the old testament? 

LAGOURANIS:  Sure.  Yes. 

MATTHEWS:  And what was there a south Babel?  I mean, when we think about the tower or Babel or Babel or whatever it is pronounced, is that what we‘re talking about? 

LAGOURANIS:  It is right.  But I don‘t know if there is a south Babel. 

But we were in north Babel, and it was Babylon.

MATTHEWS:  And let me ask you what did you see there in terms of abusive prisoners?

LAGOURANIS:  Well, at that point it was sort of late in the year that I was there, and it was long after the scandal had broken.  So we were no longer using any harsh tactics in the prison, but I was seeing evidence of abuse that was taking place at the time of their capture. 

So when the force re-con Marines were thinking on, in particular, they were pretty bad in this regard.  They would stay in the detainees home at the time of the raid.  After they had been subdued, they would question them and they would punch them, kick them, broken bones.  I never saw this, but I saw the evidence of it, and I heard the story from many, many prisoners who were coming in.  And it was consistently from the Force Recon Marines. 

MATTHEWS:  Why were they doing it?  Were they sadistic or they were afraid?  What would motivate a soldier, a U.S. soldier, to beat up somebody? 

LAGOURANIS:  I think they wanted information.  I think they were frustrated by the lack of intelligence that was coming out of the prison facilities and they wanted new targets to hit.  They wanted to shut down the insurgency.

MATTHEWS:  Are we winning over there or losing over there in the grandest possible sense of that term, winning or losing?  Are we winning the hearts and minds or are we losing the hearts and minds? 

LAGOURANIS:  We‘re certainly losing the hearts and minds.  There‘s no doubt about that.

MATTHEWS:  Has the United States‘ action in Iraq increased the amount of terrorism or anti-western activity, militarily or paramilitarily, there would have been otherwise? 

LAGOURANIS:  Within Iraq? 

MATTHEWS. I guess that‘s a tautology.  Let me ask you this.  If we were to poll Iraq two years after our occupation, would we be better off, would their attitude toward Americans be better or worse? 

LAGOURANIS:  I think far worse.  From what the Iraqis told me, the vast majority of them were very happy when we invaded.  They hated Saddam Hussein.  The vast majority of them.

MATTHEWS:  What did they expect us to do, come in, rub our hands together, good working and then spike the ball and head out? 

LAGOURANIS:  Well, I think they were worried about was the lack of security, the lack of American dedication to repairing the infrastructure and providing jobs for Iraqis. 

MATTHEWS:  Are we going to give them breakfast in bed?  Why should America give jobs to Iraqis.  We‘re there to get rid of their dictator.  We got rid of him.  What do they want us to do then.  Then give them a country? 

LAGOURANIS:  Whether you‘re right or wrong—

MATTHEWS:  I‘m just asking.  What do you think is a reasonable proposition for a foreign force?  I‘m just asking—what do they want?  They want us to give them houses and build jobs and do all this for them. 

LAGOURANIS:  I‘m not saying what is reasonable or unreasonable.  I‘m just telling you what the Iraqis, why they grew angry at the American occupation.  And a lot of it was arbitrary arrest, violence done to relatives and friends. 

MATTHEWS:  Is it more what we didn‘t do or did do? 

LAGOURANIS:  It‘s both.  Not providing security.  These things were big concerns for the Iraqis. 

MATTHEWS:  Well he be a right back with Tony Lagouranis.  Later, another casualty of the Abramoff scandal.  Congressman Bob Ney is stepping down as chairman of The Rules Committee, The House Administration Committee, rather.   How many more will be brought down by the Abramoff effect? 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. JOHN MCCAIN, (R-AZ):  We‘ve sent a message to the world that the United States is not like the terrorists.  We have no grief for them.  But what we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are. 

(END VIDEO CLIP)

MATTHEWS:  That was Senator John McCain, one month ago.  And President Bush caved to his bill banning cruel, inhumane and degrading treatment of prisoners in U.S. custody.  We have Tony Lagouranis who served a year in Iraq doing just this. 

What‘s it like inside a facility like you‘ve been in Mosul and Fallujah?  When you‘re inside a prison over there, what does it smell like, sound like, etc.?  Give me a picture, if you can of life inside one of those prisons. 

LAGOURANIS:  When I first got to be Abu Ghraib, we were occupying that hard site, you have the famous pictures of where there are actual cells with bars.  That was pretty depressing.  It was—

MATTHEWS:  Did it smell? 

LAGOURANIS:  It smelled pretty bad.  They were trying to keep it clean, but the prisoners didn‘t have regular opportunities to bathe. 

MATTHEWS:  Did it smell like B.O.?  What did it smell like?

LAGOURANIS:  B.O., some urine, whatever, sure. 

MATTHEWS:  OK. 

LAGOURANIS:  But when you got out to the outlying detention facilities like Mosul, like North Babel (ph), these things were normally outdoor compounds.  The prisoners might have wooden shacks or tents that they could sleep in.  But they were allowed to mill around and keep themselves clean. 

MATTHEWS:  It was horrible or just bad or unpleasant? 

LAGOURANIS:  Just unpleasant. 

MATTHEWS:  What about the—how often a day would a prisoner be exposed to some form of torture, some form of discomfort applied to him, to get him to talk? 

LAGOURANIS:  It depends.  Some prisoners when you interrogate them, that‘s not the method you want to use.  There‘s only a small number of them that we determined needed harsh treatment. 

MATTHEWS:  Give me an example of that. 

LAGOURANIS:  OK.  We might take this prisoner and throw him into a shipping container with loud music and strobe lights so that he couldn‘t sleep and was disoriented.  Force him to stand, kneel, or other difficult positions.  We wouldn‘t allow him to sleep.  We wouldn‘t allow him regular meals.  We‘d feed him, but not at regular intervals so he would become more disoriented.  And we would keep him in the cold.  It was cold in the nighttime, in Mosul, where we were doing this stuff. 

MATTHEWS:  Fahrenheit? 

LAGOURANIS:  Oh, 50, 55.  He would be in a thin polyester jumpsuit. 

MATTHEWS:  He would be shaking after a while? 

LAGOURANIS:  He‘d be shaking.  And we‘d keep this up with him for sometimes days. 

MATTHEWS:  What was it like to—what did it feel like to be doing that to another person?  Did you connect with these guys or did you see them as foreigners and different? 

LAGOURANIS:  Often I would connect with them.  Sometimes after we had been using these procedures on them.  And then I would spend a lot of time speaking with him, and interrogating him.  Sometimes I would form a connection with him, especially if I felt like they were innocent. 

MATTHEWS:  Were they praying during this to withstand the torture? 

LAGOURANIS:  Sometimes.

MATTHEWS:  What did it feel like trying to hurt a person who seemed so religious? 

LAGOURANIS:  I don‘t recall using those tactics on somebody who was extremely religious.  But they would often pray during this.  None of it felt good. 

MATTHEWS:  In your experience over there, did you ever hear anyone say I‘ll tell you what you want to know, and really tell you the truth?  Did anybody break? 

LAGOURANIS:  Not with those tactics.  The only time people give me information and broke was when I was developing a rapport with them. 

MATTHEWS:  What do you think was the incentive that actually worked?  If you were to write a book right now, a page in a book of proper interrogation, what would you say worked?

LAGOURANIS:  I think it worked when I was able to convince the prisoner that I was willing to help him and that he could help himself by giving me information and that he didn‘t feel like he was incriminating himself.

He might be informing on some of his colleagues or something like that, but I wouldn‘t ask questions about his involvement so much.  And I‘d keep reassuring him that he—his involvement wasn‘t going to be punished.

MATTHEWS:  And you felt you got useful information out of that?

LAGOURANIS:  That was one of the only approaches that work.

MATTHEWS:  And how would you describe the information and its value to the U.S. forces over there?

LAGOURANIS:  Location of weapons caches and names of insurgents, tactics.

MATTHEWS:  OK.  We‘ll be right back with former army interrogator Tony Lagouranis and later we‘ll ask a former attorney for the court that oversees domestic spying whether NSA‘s secret eavesdropping program violates the law.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with former army interrogator Tony Lagouranis.  Tony, I‘m getting a lot of insight here.  You basically told us—I mean, this has to be checked over time, but 90 percent of the people we pick up over there are innocent of any activity, they just seem to be in the wrong place at the wrong time, picked up in sweeps.

Also, that you think the best kind of interrogation is, if you will, the softer kind, the more human, where you try to figure the person out and connect with the person, rather than to torture them.  But let me ask you about the—your reaction when you saw the Abu Ghraib pictures.  What did they say to you, when you saw this young woman, you know, towing a guy around by a dog collar and you saw all this kind of packing of people together, there naked people like hot dogs or something—you know, a hot dog pack.  What did that all say to you?

LAGOURANIS:  Well, it‘s funny, because at that time that that scandal broke and the picture came out, I was using the harshest tactics that I used all year in Mosul.  I was using dogs, I was using stress positions.  And I look at those pictures and I was horrified.  And I thought that this -- you know, these were bad apples.  Because...

MATTHEWS:  ... But you were doing the same thing.

LAGOURANIS:  Well not exactly.

MATTHEWS:  Were you doing that, putting dogs within a couple feet of a guy‘s face?

LAGOURANIS:  Yes, we were doing that.

MATTHEWS:  Well what were they doing differently than you?

LAGOURANIS:  Well that particular picture could have been a picture of me.  I mean, that was...

MATTHEWS:  ... What was a professional interrogator doing there?

LAGOURANIS:  He was trying to terrify the prisoner and induce a panic attack.

MATTHEWS:  In other words, he‘s going to let that dog—he‘s making the—look at the poor guy‘s face.  I‘m going to say he‘s a good guy or bad guy, but look at that poor guy‘s face, scared to death that dog is going to bite his nose off.

LAGOURANIS:  Right.

MATTHEWS:  That‘s the idea, right?

LAGOURANIS:  That‘s the idea, right.  So you want him to become so afraid that he‘ll tell you anything.  I don‘t really think it‘s a very effective technique.

MATTHEWS:  Did it work for you?

LAGOURANIS:  It never worked for me.

MATTHEWS:  What about this water boarding, where somehow you lay a person down and you pour water over their face, you convince them they‘re drowning, because you probably are drowning them, aren‘t you?

LAGOURANIS:  Right.

MATTHEWS:  That‘s why you‘re convincing them you‘re drowning them.

LAGOURANIS:  Right.  I think that must be terrifying.  But I never saw that happen.  I did—an interrogator in North Babel, he was a Marine interrogator, told me that he had done that to a prisoner and that same prisoner told me that...

MATTHEWS:  ... And what did he say about it, the guy who did it?  Was he proud he did it?

LAGOURANIS:  He was proud he did it, yes.

MATTHEWS:  Why?

LAGOURANIS:  Because he felt like he was a cutting-edge interrogator and getting intelligence.

MATTHEWS:  Did he say he got anything out of it?

LAGOURANIS:  He did get intelligence out of that particular prisoner. 

I don‘t know if it was as a result of that technique, probably it was.

MATTHEWS:  Where do you stand, having been through this training and experience of an interrogator, on the question that keeps popping up in America?  Should we outlaw torture?  Because I know the president, even though he signed the bill, and this sounds very nice, he also put in a caveat saying, “I‘ll still be commander-in-chief and I‘ll do what I have to.”

LAGOURANIS:  What‘s my opinion on torture?  I don‘t think we should be using it.  I don‘t think it‘s good for us as a nation to lower our moral standards.

MATTHEWS:  Suppose you had picked up Moussaoui, the guy, the 20th hijacker, he‘s called—the guy‘s who picked up in Minnesota, who was getting flight training in a way that suggests that he was going to be part of the hell that hit us on 9/11.  And you got him a week or so before the terror.  What would you have done with him, to get the truth out of him?  What would the other guy, the 19 guys up to?

LAGOURANIS:  Well, you know, I might have tortured him.  You know, if there‘s a ticking bomb scenario, I might have tortured him.  But I shouldn‘t be held to account for that afterwards. 

And part of the problem in what we‘re doing in Iraq is we‘ve given the power to abuse detainees and torture people to everyone, to every infantry private, to every specialist interrogator, to anyone.  And that‘s...

MATTHEWS:  ... Anybody that picks up somebody can do what they want to them.

LAGOURANIS:  Right, and they‘re not—I mean, not legally.  They‘re not supposed to be doing that, but it‘s tacitly allowed, and that‘s what‘s happening.  And we can‘t behave like that.

MATTHEWS:  And this is hurting us in the world?

LAGOURANIS:  Absolutely.  It‘s hurting us in Iraq.  I mean, it‘s fueling the insurgency.

MATTHEWS:  Thank you for coming up.  We‘ve got to take a lot of what you take seriously.  Thank you for what you gave us tonight, Tony Lagouranis.

Up next, spying on Americans here at home.  The chairman of the Senate Judiciary Committee, Arlen Specter, promises a—what he calls a “thorough investigation into the Bush administration‘s secret domestic spying program.”  But did President Bush actually break the law?  I guess we‘ll find that out when we come back.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.

This weekend Arlen Specter, the chairman of the Senate Judiciary Committee, noted that Congress had not given President Bush a blank check to spy on American citizens.  That verbal shot from a Senate Republican was just the latest sign that Congress is not happy, to put it mildly, that President Bush authorized the program that bypasses the courts. 

And on top of whether the president broke the law with the spying program, now an argument is raging over whether the president has been truthful. 

HARDBALL Correspondent David Shuster reports. 

(BEGIN VIDEOTAPE)        

DAVID SHUSTER, MSNBC CORRESPONDENT (voice over):  It was late last year just before the holidays, when “The New York Times” revealed President Bush had secretly authorized the U.S. Government to spy on Americans inside the United States without court approval. 

The uproar over civil liberties put the president on the defensive, and even now the questions keep coming. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Look, I understand people‘s concerns about government eavesdropping. 

SHUSTER:  The president has repeatedly defended his actions by declaring the eavesdropping is legal. 

BUSH:  It‘s been authorized, reauthorized many times.  We‘ve got lawyers looking at it from different branches of government. 

SHUSTER: President Bush, however, has been referring to lawyers who work for him.  Now, for the first time an independent research group has weighed in, and it represents the United States Congress. 

The Non-Partisan Congressional Research Service, in a 44-page report reviewing constitutional powers and case law, concluded the administration‘s legal justification, quote, “does not seem to be well-grounded.”

The report describe the administration‘s legal arguments, including those by Attorney General Alberto Gonzales, as weak, quote, “No legal precedent appears to have been presented that would support the president‘s authority.” 

But President Bush has repeatedly declared...

BUSH:  Do I have the legal authority to do this?  And the answer is absolutely. 

SHUSTER:  For the last month the president has made two arguments.  First, that the warrantless spying is authorized under president powers in constitution.  The Congressional Research Service disagrees. 

The second White House argument has to do with the congressional authorization that passed following 9/11. 

BUSH:  The Congress and the authorization basically said that the president ought to in authorization in the use of troops ought to protect us. 

SHUSTER:  The report notes Congress authorized the president to, quote, “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

Last month former Senate Majority Leader Tom Daschle revealed the administration, during last minute negotiations, tried to add broader language, but, quote, “Congress denied the president the more expansive authority he sought.” 

And the Congressional Research Service notes even the Supreme Court, in a case related to the 9/11 war resolution, said, quote, “A state of war is not a blank check for the president when it comes to the rights of the nation‘s citizens.”

During the 2004 presidential campaign, President Bush boasted of aggressive efforts following 9/11, stating over and over the administration was operating by the book. 

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

SHUSTER:  And while the public had not heard about a program that was classified, the president in another campaign speech declared...

BUSH:  Any action that takes place by law enforcement requires a court order.  In other words, the government can‘t move on wiretaps or roving wiretaps without getting a court order. 

SHUSTER:  Even after his re-election, the president repeatedly praised electronic surveillance and the involvement of the federal courts. 

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

SHUSTER:  The Bush administration has now opened an investigation into how the classified spy program was leaked.  National Security Agency analyst Russ Tice, who appeared on HARDBALL last week, was one of “The New York Times” sources. 

RUSS TICE, NSA WHISTLEBLOWER:  It‘s shameful for people to report a crime?  Ultimately, that‘s what happened.  A crime was committed.  It was propertied.  You know, you can put a blanket security clearance on anything or call it super top secret, but nonetheless a crime is a crime.  And that‘s what was reported here. 

SHUSTER (on-camera):  Part of what makes this so intriguing politically is that polls show more Americans are worried about security than are worried about the constitution.  Still, the president‘s credibility has been battered, and congressional hearings into the spy program are scheduled to begin next month. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)            

MATTHEWS:  Thank you, David.

For a behind the scenes view as to what is going on inside the highly secret foreign intelligence surveillance court, we turn to Ken Bass, who was a counsel, helped create the court back in ‘78.

Thank you very much, Ken.  It‘s great to have you.

We talk a lot about the fact that the president under the law has to get approval, the CIA or whoever else does, the National Security Agency, to basically spy on somebody, to intercept, do one of these data searches, data minings of email or phone calls.  Why do you think the president choose not to go to the court that was established with your help? 

KENNETH BASS, FMR. FISA COURT COUNSEL:  Chris, it‘s very hard from what‘s been said publicly for me to figure out why they didn‘t try to go to the court.  Because when we were there, when we first set up the court, we had a policy of going to the court even if the statute didn‘t authorize us to go to court. 

MATTHEWS:  Why? 

BASS:  Well, because we believed in sharing the power. 

MATTHEWS:  The responsibility too. 

BASS:  And the responsibility. 

MATTHEWS:  So you only could intercept information from somebody‘s email or back then it wasn‘t emails, it was just phone calls.  You wanted to have the authority behind you to do that. 

BASS:  And we wanted to have the blessing of the courts.  I mean, the whole issue is what you‘re doing reasonable.  And if you can subject what you‘re doing to the judgment of somebody else, an independent judge, who also looks at it, say it‘s reasonable, you‘re just in much better shape, legally, politically, from a moral standpoint, every other way.

MATTHEWS:  Let me ask you about two conditions.  One is the post 9/11.  In the first 48 hours, 96 hours, two weeks after we were hit so hard, was it reasonable to assume that the president had a right to go to extreme measures just because we were under assault? 

We didn‘t know whether there was going to be another shoe to drop, another attack somewhere in Chicago or Detroit or somewhere else, and therefore he needed to move quickly in finding out everything we could electronically.  They would not go to the courts because it would have slowed them down. 

BASS:  He didn‘t have to go to the courts.  There was a 72-hour emergency provision.  And then for 72 hours they could have done surveillances and then go to the court if what they had was something that showed agency of a foreign power. 

There are always provisions built into the Foreign Intelligence Surveillance Act to try and deal with the horribles, the hypotheticals.  There‘s a war provision in there, for example, that the president could also have invoked in those early hours. 

The problem is it has gone on for four years, and it‘s gone on for four years without Congress knowing about it and without knowing the details and without being in a position to assess its reasonableness. 

MATTHEWS:  Let‘s take a look.  Here‘s a voice we haven‘t heard for a while.  Former Vice President Al Gore, of course, lost the election, the presidency, in some part through the actions of the Supreme Court back in the year 2000.  But here he is accusing the president today of breaking the law in this regard.

(BEGIN VIDEO CLIP)

AL GORE, FORMER VICE PRESIDENT:  What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently. 

(END VIDEO CLIP)

MATTHEWS:  That‘s an interesting—that is a civil liberties audience

very conservative --  those kind of libertarians, I should say, not civil libertarians.  People on the left, we call them civil libertarians, people on the right we call libertarians.  They both have a common stake here, as do most Americans, in keeping us from being spied upon. 

Do you think that this is an egregious matter here, or just a technical on, the fact that the president hasn‘t gone to the FISA courts, to the surveillance courts, to get approval.. 

BASS:  I don‘t know enough to tell you the answer yet.  All the critical factors are still classified.  The whole role of  the NSA was carefully structured in the Foreign Intelligence Surveillance Act.  We set some provisions in there for the NSA to do what it‘s been doing for decades without going top the FISA court. 

We‘re not sure at all that what we intended is what‘s going on here. 

There‘s just way too much ambiguity. 

MATTHEWS:  I told you before, that the Americans have different reactions.  A lot of Americans say this is a time of war, we‘re fighting terrorism.  Let‘s not be squeamish about catching the enemy.  If somebody‘s been on the phone with an al Qaeda person overseas, let‘s nail the bastard. 

That‘s the attitude most of us have.   think it‘s reasonable.  If it‘s somebody who‘s actually involved in that kind of terror against the United States, that‘s reasonable.  Then again, people say don‘t be checking into my phone lines by accident and don‘t be checking on my stuff, because I may be a liberal or a skeptic about this administration‘s policies. 

Who draws the line? 

BASS:  That‘s why we had the FISA court in the first place.  The court was going to supervise where the executive drew the line.  That whole issue of whether people feel good about it tends to reflect a sort of ambivalence.  They say I want civil liberties protected, but I don‘t want to worry about it, because they‘re not going to targeting me. 

The fact is, depending on what they are doing, they could be picking up U.S. news people who are in conversation with Iraqis.  When they say that they‘re only targeting known al Qaeda, if you listen to the segment you just had, what‘s a known al Qaeda?  Is it somebody who happens to be in Iraq at the wrong place at the wrong time? 

MATTHEWS:  What about this new technology called data mining, where they go out—I don‘t even know this world, but I know it‘s out there— they can look at the world of email and they can look—throw out a big fish net and say let‘s look at everybody who‘s used the phrase Lincoln Tunnel or Empire State Building or Sears Tower. 

Anybody between here and that al Qaeda land over there, those Arab countries, is using words like that on the phone, we want to know who they are.  Can you go to a FISA court and say went to lasso everybody who‘s used the word Lincoln Tunnel in the past three weeks? 

BASS:  No, but that‘s not really a new technology.  The same thing was happening at the time FISA was passed with a different form of communication. 

MATTHEWS:  The phone? 

BASS:  Not the telephone so much.  A different form of communication, which I can‘t get into the details.  The fact of the matter is that the act was intentionally set up to allow N.S.A. to do data mining, as long as they weren‘t targeting specific individuals. 

The issue here is that, based on what the administration has said, it sounds very much like instead of looking for phrases, they‘re looking for individuals.  And that they‘ve been targeting Americans, based on evidence that they think is not sufficient to go to the FISA court.  That‘s the troubling issue. 

MATTHEWS:  So the court would have permitted data mining for particular phrases? 

BASS:  It didn‘t get into the business of data mining phrases? 

MATTHEWS:  But if it had been asked, it could have said yes?

BASS:  It was all prized under the statute and it‘s been done for decades.

MATTHEWS:  You‘re the first person to say it, because some people say the reason that this administration didn‘t go to the FISA courts to get approval to intercept key phrases that might have to do with the targeting of U.S. iconic facilities, buildings, is because you can‘t get approval for such a broad scope. 

BASS:  You can‘t get the approval, but Chris I can assure you, because I worked on the issue when FISA was enacted, that we consciously knew about data mining at that time and we knew that searching for phrases was not to be covered by the Foreign Intelligence Surveillance Act and it‘s covered through a process of minimizing use of the information. 

The difference is you‘re not targeting individuals. 

MATTHEWS:  OK.  Thank you very much.  Ken Bass.  We‘re going to have  more on this.  Coming up, the Abramoff scandal cost Ohio Congressman Bob Nay his chairmanship of the House Administration Committee.  Who will be the next casualty and how many more will there be? 

This is HARDBALL only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re a back, on a national holiday, Martin Luther King Day.  Steve McMahon came in for the holiday, he‘s a Democratic strategist, and Ben Ginsberg is working all the time.  He is an adviser to the Bush-Cheney campaign.  

We have a got a couple poll numbers out there.  One of them is 81 percent of the people in the new Pew poll that says that bribery in Congress is common behavior.  Now, I just want to know if you guys agree with that.  You do know, you‘re in law practice here in Washington and a counselor to the Republicans and you know a lot of people.  Do you believe four out of five members of Congress are crooks? 

BEN GINSBERG, FMR. COUNSEL, BUSH-CHENEY ‘04:  No, absolutely not.  No 

MATTHEWS:  Can you make the case to the American people why you know better? 

GINSBERG:  Sure, because I‘ve seen them and know them.  I know that most people in Congress, despite the cloud of the Abramoff scandal, and it is a cloud and you can‘t denigrate the importance of it, but most members in Congress are honestly there to do the people‘s business, it‘s true of both sides of the aisle, and that‘s why they‘re there. 

MATTHEWS:  So they‘re not taking money under the counter. 

GINSBERG:  No.  In fact, if you saw the lifestyle that most of these guys and women lead, it‘s just not true. 

MATTHEWS:  Describe that.  Tom Foley, the former Speaker of the House, would always talk about the fact that in “Mr. Smith Goes to Washington,” the senior senator from that western State was living in The Cosmos Club, this gigantic mansion on Massachusetts Avenue, when most congressmen are living in basement apartments, sharing rooms with two or three other people.

GINSBERG:  Sharing it with each other.  They commute back home to their families as often as they can, which is why votes get scheduled the way that they do.  They don‘t have a whole lot of disposable income.  They‘re usually raising the kids back home.  It can be a tough slough for some of them, but they do believe in public service.

MATTHEWS:  And they fight over every pay raise.

GINSBERG:  Yes.

MATTHEWS:  Because they want that money, that three percent.

GINSBERG:  Well, some want the money, and some don‘t.

(CROSSTALK)

MATTHEWS:  But what do you—let me ask you this.  Do you think four or five or crooks, or do you think it‘s much lower?

STEVE MCMAHON, DEMOCRATIC STRATEGIST:  I think it‘s much lower.  I think there may be a few.  And I think the press is building this up to be the biggest corruption scandal in the history of the world.  And I think there are going to be some people who go down, but I think the number—you know, there are 535 members up there, and I think if there are three or four or five, that will be a lot and that would represent...

MATTHEWS:  ... The press, as you pointed as saying that this guy, Abramoff was dumping, like, four million bucks into the Congress somewhere.

MCMAHON:  Well yes, but you know what?  Money gets dumped into campaign committees every single day in this town and it doesn‘t mean anything illegal‘s going on.

I mean, look, I think you could make the case that a guy like Abramoff, who stands to perhaps cut his prison sentence from 30 years to five years by telling stories, and some of those stories may be true and some of them may not be true.

You know, you‘ve got to wonder.  When someone‘s looking at 30 years in jail, but if you just tell a few stories, you‘re going to get off scot-free, whether all the stories are going to be accurate?

MATTHEWS:  Do you think the innocent will suffer?

MCMAHON:  I think there are going to be some innocent people who suffer.  I think there are some people up there who are corrupt, and I think there are some people up there who have broken the law.

MATTHEWS:  Do you know the corrupt people?

MCMAHON:  Well, of course, we all know who some of them are.  I don‘t think it‘s big news.

MATTHEWS:  You can make some news here tonight.

MCMAHON:  Anybody who‘s been reading the papers probably knows who most of those people are.  But it‘s not a majority of the 535.  And it‘s not even a significant minority, it‘s a few members of Congress.

MATTHEWS:  Do you think it‘s worse than it was 20 years ago?

GINSBERG:  No.  I think it‘s by in large the same.  I mean, I think that there are some things that are different.  Was the House Bank (ph) and the way it operated 20 years ago, it was Lyndon Johnson and Bobby Baker  and Billie Sol Estes‘ 40 years ago.  And today, things have shifted a little bit with the different rules that have come about.  And there are some certain practices that probably can stand cleaning up, that may get cleaned up in the scandal, and that‘s not all bad.  Gift rule, lobbying ban, things like that.

MATTHEWS:  Yes, I remember the old days, you hear about where the money just poured and they just put it in people‘s pockets, their raincoats and there was no accounting for anything, it was all—here‘s your scholarship money for your kid.

MCMAHON:  None of that happens anymore, but you have these gift rules that make no sense.  So for instance, a lobbyist can‘t give you more than $50 in a meal or a sporting event ticket, but you can take a private—but he can give you a private jet to fly home for your indictment.  Now does that make any sense?

MATTHEWS:  For your indictment?

MCMAHON:  Well, if you‘re Tom DeLay, when he needed to get to Texas to get booked...

MATTHEWS:  ... All right, we‘ll be right back with interesting rules and misrules with Steve McMahon and Ben Ginsberg.  And a reminder, Hardblogger is the place to be online for the best political debate.  And now you can download Podcasts of HARDBALL.  Just go to our Web site, hardblogger.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Democratic strategists Steve McMahon and former Bush/Cheney adviser Ben Ginsberg.  Ben, is this Abramoff thing going to be a net loss for Republicans when it‘s all over, by November?

GINSBERG:  At the end of the day, I don‘t think so.  There may a couple more seats that will be in play that could have.  But I suspect by November, one or two things will happen.  It will either be an equal bipartisan scandal or it will sort of die out as a scandal, period.

MATTHEWS:  Can your party used this to win the House?

MCMAHON:  Yes.  And by the way...

MATTHEWS:  ... If he pleads, you can win with this? 

MCMAHON:  Yes.  The Republicans are trying to make this a bipartisan scandal.  And frankly, I don‘t think it‘s so much about Abramoff in particular as it is just about the whole culture of corruption that has invaded the Republican Party from the White House, where we still have an ongoing leak investigation.

MATTHEWS:  Is the president corrupt?

MCMAHON:  No, I don‘t think he‘s corrupt.

MATTHEWS:  Well then, you said there‘s a culture of corruption—who‘s corrupt?

MCMAHON:  Well I think that there were some people there who perhaps violated the law. 

MATTHEWS:  Give me names.

MCMAHON:  Well you know who the names are. 

MATTHEWS:  No, I don‘t.

MCMAHON:  The Valerie Plame story hasn‘t concluded, Fitzgerald hasn‘t concluded his work, Karl Rove is still perhaps a target.  We don‘t know.

MATTHEWS:  That‘s true.

MCMAHON:  You‘ve got the majority leader, you‘ve got...

MATTHEWS:  Scooter Libby, is he a crook?  Is he a crook, is he corrupt?

MCMAHON:  Scooter Libby‘s under indictment.  I‘m not saying he is corrupt, but I‘m saying there‘s a culture.

MATTHEWS:  You said there‘s a culture of corruption.  What does that mean?

MCMAHON:  What it means is the Republicans don‘t think the rules apply to them.  They don‘t think the laws apply to them.  And they routinely either ignore or perhaps in some cases violate the laws.  And it‘s coming home to roost on them.  You‘ve got Bill Frist is under investigation by the SEC, Tom DeLay is under indictment.  The entire House and Senate leadership is...

MATTHEWS:  ... What about Harry Reid and Patrick Kennedy not giving back the money they got through the good offices of Abramoff?

MCMAHON:  This is a Republican argument, they‘re trying to make this...

MATTHEWS:  ... Well, it‘s a good question.

GINSBERG:  It‘s a pretty good argument.

MATTHEWS:  Why don‘t they give back the money they got thanks to Jack Abramoff?

GINSBERG:  This culture of corruption.

MCMAHON:  Because the money that they got, as I understand it, wasn‘t from Jack Abramoff.  It was from people who—a lot of the Republican took money from and haven‘t returned either.

MATTHEWS:  And your thought—can you prove that Abramoff gave money to Harry Reid through the Indians?

GINSBERG:  As much as he can prove it about any of the Republicans.  That‘s what the campaign finance reports shows.  This culture of corruption nonsense being isolated on the Republicans is just silly.  There are just as many Democrats who are doing the things that we think are OK under the gift rules that have not been called into question.

MATTHEWS:  You tried to run the Democrat lobbyists off K Street.  You tried to monopolize the damn thing.

GINSBERG:  No, we didn‘t try and monopolize the damn thing.  What we...

MATTHEWS:  So power doesn‘t tend to corrupt, absolute power doesn‘t corrupt absolutely?

GINSBERG:  Power can be...

MATTHEWS:  OK, thank you Ben Ginsberg, thank you Steve McMahon.  I think Laura Eckin (ph) was right.

And now some closing words from the man who Americans honored today, Martin Luther King Jr.  He died in April 1968 at the hands of an assassin just one day after he gave this inspiring, yet remarkably prescient speech.

(BEGIN VIDEO CLIP)

MARTIN LUTHER KING, SLAIN CIVIL RIGHTS LEADER:  I‘ve seen the promise land.  I may not get there with you, but I want you to know tonight that we as a people will get to the promise land.

(END VIDEO CLIP)

MATTHEWS:  Martin Luther King, like other major figures in our history, was the leader we needed at a time of crisis, but also of opportunity.  Things were happening in the civil rights movement during the 1950‘s, but it took a champion to take this country where it had to go, to a complete outlawing of racial discrimination in restaurants, hotels, and even rest stops.

I grew up seeing those white-only signs from laundromats in Louisiana to gas station bathrooms in Georgia.  When your children ask you why this man was important, just say this is the man who brought down the legal walls of discrimination.  Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  Right now it‘s time for “THE ABRAMS REPORT” with Dan.

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

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