updated 2/7/2006 10:20:26 AM ET 2006-02-07T15:20:26

Guests: Orrin Hatch, Dianne Feinstein, Eric Lichtblau, Ben Ginsberg, Dick Sauber, Howard Wolfson, James Risen

CHRIS MATTHEWS, HOST:  Government spying on Americans.  Does it make you feel safe or does it make you worry?  Do you have an al Qaeda number in your Rolodex?  And a Republican leader says Hillary Clinton is angry.  Is that her problem or the Republicans?  Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews.  Welcome to HARDBALL.  Last night the Pittsburgh Steelers won the Super Bowl and today Pennsylvania Senator Arlen Specter kicked off Senate hearings into the National Security Agency‘s spying program.  Does the president have wartime powers to eavesdrop without a warrant or is President Bush breaking the law?  More on this in a moment with “The New York Times” reporter who broke the story. 

Plus, Ken Mehlman, the chairman of the Republican Party, says Senator Hillary Clinton, quote, “seems to have a lot of anger.”  Is this a preemptive strike against a potential presidential contender?  HARDBALL‘s David Shuster will have a report soon.

But first Attorney General Alberto Gonzales testified before the Senate Judiciary Committee today, insisting the president has the authority to order eavesdropping without warrants and warned Congress not to end the program.  We‘re joined now by two members of the Judiciary Committee, Senator Orrin Hatch of Utah, a Republican and Senator Dianne Feinstein, who‘s a California Democrat.  Senator Hatch, does the president have a right to eavesdrop on Americans without a court order?

SEN. ORRIN HATCH ®, UTAH:  Well, the president takes a position as does his attorney general, that when Congress passed the joint resolution authorizing the use of military force on all force necessary to protect us from terrorists, that he has the right to do warrantless terrorist surveillance. 

He also relies on the inherent powers of Article II of the Constitution and of course the reasonableness standard in the Fourth Amendment.  And I believe that he does have the power to do this, but we‘re all concerned whether—we don‘t want to give any person unlimited power, we certainly want to make sure that if these powers are exercised, they‘re exercised with discretion and the attorney general assures us that this is a very limited program.  It has to be reauthorized every 45 days, it is necessary to protect us from the terrorists in this country, and I think he did a pretty good job of trying to explain that today.

MATTHEWS:  Senator Feinstein, do you trust this president or any president to decide whether to obey a law, like the 1978 law that says he has to get approval from the Foreign Intelligence Surveillance Act tribunal?

SEN. DIANNE FEINSTEIN (D), CALIFORNIA:  I think we‘re at a very dangerous point at history.  I believe that this is a very explicit, specific law, which was passed after a great deal of discussion in the Congress in 1978 -- has been amended many times, it was amended certainly in the Patriot Act.

And it is explicit, that it is the exclusive authority for all electronic surveillance in America, and it‘s got two escape hatches, one of which is the president can wiretap without warrant for 15 days, after a declaration of war.

And secondly, that there‘s an emergency provision of 72 hours, the president can wiretap provided they go to the FISA Court.  If the president is sustained in operating outside of the law, nobody knows how big this program is.  Nobody knows who is tapped, no one knows what happens with the information, no one knows how long it‘s kept.

It is an entirely secret program without a check and without a balance, and without adequate oversight.  And I think this is a very slippery slope, because then other laws that are explicit, the president can use this inherent plenary or absolute power to simply ignore.

So we‘re at a very dangerous time.  And I think what happens here isn‘t only good for this president, it‘s for every other president and it‘s for the kind of republic we want to be, whether we‘re going to follow our own law. 

And because the president can go to this court, because they do go to this court, virtually every day in secret, I don‘t understand why they didn‘t unless the scope was such that they knew the court would not grant them authority.  I don‘t know why they didn‘t follow the law again, and inform the intelligence committee, the whole committee, unless again the scope was such that they knew we would have a problem with it.

MATTHEWS:  Let me ask you, Senator Hatch, if the president has this inherent authority in Article II of the Constitution and he also derives the power from the resolution of Congress of September 14, 2001 on the need to act against terrorism with everything we had, could he go for example—and I don‘t mean this ludicrously, because I don‘t know the right answer—and open every car trunk in New York, for example, without a warrant?  Without any probable cause?  If he could listen to every telephone line, what‘s the difference between that and opening every car trunk?

HATCH:  Well the answer is no, he can‘t do that.

MATTHEWS:  Why not?  Who‘s to stop him?

HATCH:  Well, I think the basic integral aspects of government will stop that, and the president has made it very clear that he is not doing that and I believe that‘s accurate.

Now look, Dianne just makes a fairly good case here, except for one thing, and that is that the president does have inherent powers that we can‘t take away just by passing an exclusive law in the Congress.

The Congress doesn‘t have the power take it away, but the fact of the matter is that if the president has inherent powers, and I have no doubt that he does, he has to use them within the rule of law.

By the way, I can name at least five circuit court of appeals cases.  The only ones that have really ruled on this that all say that he does have this inherent power.  It hasn‘t been decided by the Supreme Court, but anybody who says he‘s operating outside of the law is not looking at the fact that he‘s operating in accordance with the various circuit courts of appeals that have ruled on this matter that said that—basically say he has this power.

MATTHEWS:  Senator Feinstein, the president recognizes the law, he‘s talked about it, the ‘78 law that‘s signed by Jimmy Carter, the president at the time, that basically said he had to go to the Foreign Intelligence Surveillance Court to get approval for wiretaps and that kind of electronic surveillance. 

And then Senator Hatch says but wait a minute, a law passed, a resolution passed by the Congress in 2001 superimposed that, by saying he has the right to wage war.  Do you accept the fact that the war power in that language of September 14, 2001, after 9/11, does supersede previous legislation?

MATTHEWS:  Absolutely not.  There is no indication that there was any intent to do so, not one member of Congress has ever said there was an intent to allow him to electronically surveil Americans.  And Tom Daschle has told me personally and I‘ve heard him say this publicly, that just before this came to the floor—Tom was the majority leader at the time --  there was a call from the administration, asking after use of force, they couldn‘t add the words “inside the United States.”

He said absolutely no.  The subject was dropped.  The resolution went through, with no inclusion.  And if you really read Justice O‘Connor‘s opinion in Hamdi, it does not at all admit that because a president has the power to detain, the president has the power to electronically surveil when there is a law dutifully enacted that specifically states that he does not, without going to this court.

So it may well be that this comes to a constitutional test.  But I for one believe that there may well be the likelihood that there are other programs also going on in contravention of specific laws, and this is what is so dangerous about this.

And for the life of me, you know, both Senator Hatch and I are on the intelligence committee, I don‘t understand why they didn‘t brief the committee because we would have said, “Look, if you need authority to go to FISA and you can‘t get it, and this we concur, is a reasonable program, we‘ll amend FISA.”  That would have happened.  It would have been unanimous, and no one would have breached the confidentiality of that.  So I—I must tell you, I am very, very suspicious as to what this program really is.  And we‘ll find out one day, that‘s for sure.

HATCH:  Let me just say that authorizing use of military force is very broad and a lot of us interpret it—gives us the president powers to protect us from terrorists.

We‘re fighting a war like none we‘ve ever fought before and I have to say that the president has briefed and the administration has briefed and NSA has briefed eight distinguished members of Congress, all the way down the line here, not one of whom has raised an objection, at least as far as I know and as far as the attorney general has said. 

Not one has raised an objection to the program, realizing that we‘re

in a tough time.  We have to do what we can to protect our American

citizens.  But like Dianne, I‘m very concerned with anything that goes

beyond a very limited program.  Now we‘ve been told it‘s a limited program,

I don‘t believe there are other programs that are being misused/

If there are, Congress should get into it.  But you know, let‘s be honest about it.  The president is doing everything he possibly can, we want him to do everything he possibly can, we want to be protected, and so far, since 9/11, we have been protected and I don‘t want to let those bars down in this very, very difficult war.

FEINSTEIN:  Let me respond quickly to something that Senator Hatch said.  By just informing the big eight, this also is a violation of law.  The law is very specific, that with respect to all matters, sensitive, except covert intelligence, that the president must inform the intelligence committee in writing. 

HATCH:  And he does that through these eight members.  There‘s no question, the leaders of the House and the Senate and the leaders of the two respective, bipartisan leadership, the two respective intelligence—you can interrupt that either way, Diane.  I would prefer, like Diane, that the administration inform everybody on the Intelligence Committee, however, if you combine both committees, that‘s 44 people, and as you know—

MATTHEWS:  That‘s the law. 

HATCH:  No it isn‘t the law. 

FEINSTEIN:  It is the law. 

HATCH:  You can interpret it to mean that he‘s informed the Intelligence Committee by informing the leaders, which they do on other matters as well.  Now I admit, I‘d prefer to be broader interpretation, but you can interpret any other way too and you can be totally within the law to interpret it that way. 

MATTHEWS:  Thank you very much, Senators.  Thank you Senator Orrin Hatch and Senator Diane Feinstein.  Much more on the N.S.A. hearings today when we return.  Later, do Republicans relish or fear a race for president against Hillary Clinton?  You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  New York Times reporter Eric Lichtblau broke the N.S.A. spying story back in December and he‘s been covering this explosive debate ever since, including today‘s heated hearing on the hill.  Eric, let me go through this.  First of all, what‘s new today? 

ERIC LICHTBLAU, THE NEW YORK TIMES:  It got pretty ugly from the get-go.  The Democrats tried to have the attorney general sworn in as a witness because they were a little skeptical on some of his past answers, they thought he had bee misleading them, and the Republicans balked at that.  They said we‘re not swearing in a cabinet member, the attorney general, they thought that was disrespectful, so the partisan lines were drawn right from the beginning. 

MATTHEWS:  Then he said but I would be glad to be sworn in.

LICHTBLAU:  He said I would be glad to but the chairman, Senator Specter, said that‘s not necessary, they had a party line vote, then things kind of went downhill from there. 

MATTHEWS:  I‘ve been watching Arlen Specter for 30 years.  He‘s always trying to find the center.  He said today something, we didn‘t get to with the Senators right now, he said why don‘t we just have the president take this whole question of N.S.A. spying on Americans, right to the Foreign Intelligence Surveillance Act tribunal right now, after the fact.  Give it to them and ask them to settle the fish here.  And everybody was silent, because nobody heard such a brilliant idea before. 

LICHTBLAU:  That was a question, to be honest, that several Republicans asked.  There were several Republicans, Specter, Lindsay Graham,  Brownback and others were saying why can‘t you work within the system?  There is a law in place, why can‘t you go to the court, why can‘t you come to us an change the law. 

So Gonzales did get some very skeptical questioning and comments even from the Republican side of that.  And his answer was several points, frankly we don‘t think we need to, we have the power. 

MATTHEWS:  Could it also imply I‘ll get back to you on that?  Does the president, watching the politics of this thing, not just the Constitutional appropriateness of it, this spying program, does the White House not think they‘re winning here?  Could it be they don‘t mind this fight?  Let‘s argue about this for another two or three months?  We could win on this fight.

LICHTBLAU:  I think most of the political observers think they‘ve done a pretty good job of recasting the debate in national security terms, showing the White House being tough on terrorism, that they will do everything in takes. 

The debate has sort of shifted from was it legal to is it necessary and is this president going to be tough on terrorism and they scored some points doing that. 

MATTHEWS:  So we‘ll defend you, let the Democrats defend your rights. 

LICHTBLAU:  Right.  And the Democrats are very quick at the outset of the hearing to say we are just as tough on terrorism as anyone, we believe that every tool should be used, but do it within the law, so the debate was kind of cast from the beginning. 

MATTHEWS:  Another shrewd move I thought by the chairman was to ask for the approval, the OK, of Alberto Gonzales, the current attorney general, to bring in the previous Attorney General John Ashcroft. 

Has your reporting taken you up to the point where you know that Ashcroft resisted the spying on Americans? 

LICHTBLAU:  We‘ve reported on one—what has now become sort of a famous hospital bedside visit when Ashcroft was in the hospital with pancreatitis and there deep concerns, as we reported last month, within The Justice Department about the legality in the operations of the program. 

The Justice Department was refusing to sign off on the program, and the then White House counsel, Alberto Gonzales, and Andy Card, the chief of staff had to go to Ashcroft‘s hospital bed to say please sign off on this program and Ashcroft resisted.  There was some debate about what Ashcroft did, but he refused to sign on it at that moment and the program had to be suspended for several months in part because of that.

MATTHEWS:  So we might find ourselves with Arlen Specter and John Ashcroft launching an interparty fight with the president on this? 

LICHTBLAU:  It will be interesting to see weather Ashcroft does testify.  Specter said today that Ashcroft hasn‘t given a final answer, but if the White House and the Justice Department says sure we‘re fine to have Ashcroft testify, it will be tough for him to say no. 

MATTHEWS: Has Alberto Gonzales—I‘m asking you an objective reporter‘s questions—has he ever expressed independence of George Bush in any field? 

LICHTBLAU:  That was a central question at his confirmation hearing a year ago, the question of could he be an independent attorney general.  I think the jury is still out on that.  Certainly he has his supporters who say that he is now sort of transitioned to his new job as the top law enforcement official. 

He has set his own agenda when it comes to issues like white collar crime and things like that.  His detractors will say that, you know, he is too much of a loyalist to be independent. 

MATTHEWS:  You‘re standing by your story? 

LICHTBLAU:  We are. 

MATTHEWS:  New York Times reporter, Eric Lichtblau.  Thank you very much. 

When we return, did the Bush administration break the law by authorizing these warrantless domestic wiretaps?  Much more on our top story when this HARDBALL special report continues.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with more coverage of President Bush‘s electronic eavesdropping program.  Dick Sauber is a FISA legal expert, that‘s the Foreign Intelligence Surveillance Act.  It sounds like a mouthwash otherwise.  Ben Ginsberg is the former RNC, that‘s Republican National Committee, counsel.  They‘re both here tonight to assess Attorney General Alberto Gonzales‘ testimony today, and the defense he gave of the president. 

Was that the best the president could do, what he gave today? 

BEN GINSBERG, FMR. BUSH/CHENEY ‘04 COUNSEL:  I thought it was pretty good.  I thought Attorney General Gonzales laid out the law, the legal rationale for it.  Went in to the history. 

MATTHEWS:  He was a little tongue tied on the question from the chairman, Arlen Specter, as to whether he had any problem with John Ashcroft testifying.  What was that about?  Why did it take three exchanges to get that one out? 

GINSBERG:  I don‘t know, I think it‘s sort of a question when you‘re preparing to justify the law, you‘re probably not thinking about your predecessor coming on or not. 

MATTHEWS:  I didn‘t think he liked the idea.  What do you think, Dick, do you think that John Ashcroft would clear some things up here since he was the guy who resisted this effort by the president? 

DICK SAUBER, FMR. JUSTICE DEPT. PROSECUTOR:  The attorney general today was I thought a little opaque on whether or not there were former Justice Department officials who had resisted the program.  It seemed as if the Senators couldn‘t get a straight answer. 

MATTHEWS:  Didn‘t Deputy Attorney General Comey, wasn‘t he a resister too? 

SAUBER:  That‘s what newspapers reported but the attorney general seemed to be saying today that Comey and others had not objected to what was publicly identified by the president, a statement which I didn‘t understand frankly. 

MATTHEWS:  I‘m trying to do this, I feel like I‘m in “Best in Show” here, trying to translate this very opaque, nice word, obscure program. 

For the average American to understand it, I opened the show by saying if you have an al Qaeda phone number in your Roledex, you probably don‘t want to have the surveillance, but otherwise most people would say they‘re not bothering me.  I have not seen a victim come forward in this whole program that says my privacy was violated? 

SAUBER:  Well I think one of the Senators today—

MATTHEWS:  Has there been one? 

SAUBER:  None that I know of.  But he did reference one who called the N.S.A. and said, I want—have I been wiretapped or not and he couldn‘t get a straight answer. 

The issue is not has anyone has come forward and said I‘ve been wiretapped.  The issue is do we have a program for which there are checks and balances and for which there are standards, and the history of these programs is, when there are no checks and balances, they always get abused. 

MATTHEWS:  I‘ve never heard a president say the law, in this case, the 1978 law that created this Foreign Intelligence Surveillance Act tribunal system, which requires the president to get a court order before he taps somebody or goes into electronic surveillance, to say that‘s a useful tool. 

That‘s like saying to a cop who stops you going 45 miles an hour instead of 25 and saying oh, I thought that was a useful tool, that 25 miles an hour thing, I just didn‘t choose to use it this week.  Laws are not tools, they‘re highways you must go down.  I feel like Thomas Moore, here.  You must stay on the highway are you break the law.  How can the president refer to a law as a tool he might use when he feels like it? 

GINSBERG:  There‘s much more involved here and that has to do with The Constitution, it has to do with the use of force resolution—

MATTHEWS:  Tell me how complicated it can be.  There‘s a law, the president says I‘m not going to obey it. 

GINSBERG:  There‘s a law that may not apply to every situation.  I think part of what the attorney general said in his testimony today, was that that was a law that applies to certain situations.  It was written in 1979.  This is a modern day war, a 21st century war and the president has tools to prosecute that war, and that includes Constitution and the use of force resolution. 

MATTHEWS:  Which supersedes this 1978 law. 

GINSBERG:  I‘m not sure it supersedes it, but it says it may not be applicable in the particular situation. 

MATTHEWS:  You could do it—you know if it was a Democrat—

GINSBERG:  Of course you can.  You can do a Congressional and executive. 

MATTHEWS:  If this was a Democratic president, who had taken a law and said I think that‘s a nice interesting tool, I‘ll put it aside, while I pursue it under the commander-in-chief law in article two of The Constitution and under the September 14, 2002 resolution that says I can do anything to win this war, that‘s what he‘s saying, right? 

GINSBERG:  Nice hypothetical.  I‘m not sure it applies to what we‘re doing here.  I‘m not sure that your hypothetical—

MATTHEWS:  It‘s not only germane, it‘s mundane, it‘s what we‘re doing here. 

SAUBER:  It‘s precisely what‘s happening here and if you step back for a second, what he‘s really saying is that The Fourth Amendment, the bar against unreasonable searches and seizures, as interpreted by Congress in this very specific statute is just a tool.  And my understanding was, it wasn‘t a tool, it was an instruction. 

MATTHEWS:  By your definition, the president of the United States under his commander-in-chief role, and under the September 14 resolution of 9/11, has the constitutional authority to frisk everybody in America. 

GINSBERG:  No. 

MATTHEWS:  He doesn‘t? 

GINSBERG:  The Fourth Amendment still absolutely applies and that would be an unreasonable search, and what they‘re saying is in this situation, where you have international calls coming into this country by identified al Qaeda people, identified by National Security Administration professionals, that that is not an unreasonable search. 

MATTHEWS:  Is that the limit on what they‘re doing. 

(CROSSTALK)

MATTHEWS:  What I read in the papers is that they‘re able to take a name they pick up in the intercepts and then see who went to high school with the guy and then find out who may play basketball with any of those guys, and anyone who has ever been on a plane with the third guy and do it like the Kevin Bacon degrees of separation and check them all out. 

SAUBER:  I don‘t think this is limited to al Qaeda agents, or else you could easily get a warrant under almost any standard.  If all the technology that‘s at issue here is really necessary in the war on terror, and let‘s assume that it is, then there should have been a discussion, instead of this after the fact rationalization.

There should have been a discussion so that we‘re doing this right, we‘re making use of all the tools that we have, we‘re not putting in jeopardy the prosecutions and we‘re not wasting time on arguing after the fact. 

MATTHEWS:  We had a moment here, a bicentennial moment on HARDBALL, where Ben said if I had to do it the other side, I could do it just as well.  Thank you Dick Sauber, thank you Ben Ginsberg, a moment of greatness.  An epiphany.

Up next, Hillary Clinton for president, Republicans have stepped up their attacks against New York Senator as she prepares for a possible run for ‘08.  That‘s ahead.  It‘s going to be hot.  You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(STOCK MARKET REPORT)

MATTHEWS:  Welcome back to HARDBALL.  For months, political junkies like me have been focused on New York Senator Hillary Rodham Clinton and her preparations perhaps to run for president next time.  It‘s not clear whether Republicans relish or fear a campaign against Mrs. Clinton or whether they should fear or relish.  Nobody knows everything, but the effort to tarnish her has now begun.  HARDBALL correspondent David Shuster reports.

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  It was just three weeks ago, when Senator Hillary Clinton speaking to an African-American audience, likened the House Republican leadership to slave owners.

SEN. HILLARY CLINTON (D), NEW YORK:  Because when you look at the way the House of Representatives has been run, it has been run like a plantation and you know what I‘m talking about.

SHUSTER:  Sunday on ABC‘s “This Week,” Ken Mehlman, the Republican National Committee chairman and head the GOP ridiculed Clinton as a Democrat seething with anger.

KEN MEHLMAN, RNC CHAIR:  I don‘t the American people, if look historically, elect angry candidates.

SHUSTER:  And in case anybody missed that charge, Mehlman repeated it.

MEHLMAN:  And whether it‘s the comments about the plantation or the worst administration in history, Hillary Clinton seemed to have a lot of anger.

SHUSTER:  The Clinton camp quickly hit back.  Spokeswoman Howard Wolfson said, quote, “If the president and the White House spent half as much time worrying about the runaway deficit and the broken Medicare system as they do about Hillary Clinton, the country would be in much better shape.”

But the attack on Senator Clinton‘s temperament was one of the strongest attacks a top Republican has thrown at her in years.  And the effort to tarnish her comes as Mrs. Clinton seems unstoppable in her Senate reelection campaign, and as polls show her to be the favorite among Democrats for the 2008 presidential campaign.

The strategy of portraying somebody as angry and emotional is one the GOP has used before.  In 2003...

HOWARD DEAN, DNC CHAIRMAN:  You have the power, you have the power.

SHUSTER:  ... Vermont governor Howard Dean raised more money than any other Democratic presidential candidate.  Republicans repeatedly portrayed Dean as angry.

REP. TOM DELAY ®, TEXAS:  I think the Democrat platform for 2004 could be titled “Dean Flew Over the Cuckoo‘s Nest.”  We would love to run against Howard Dean.  He is so far out there on the fringe.

SHUSTER:  And after Dean lost the 2004 Iowa caucuses, his rallying cry was ridiculed by the GOP non-stop.

DEAN:  We‘re going to South Dakota and Oregon and Washington and Michigan.  And then we‘re going to Washington D.C. to take back the White House.  Yes!

SHUSTER:  In the 2000 general election, Al Gore appeared to beat George W. Bush in the first presidential debate, but Republicans hammered Gore‘s emotional demeanor and impatience.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Could be one year or two years.

AL GORE, FORMER VICE PRESIDENT OF THE UNITED STATES:  Let me call your attention to the key word there.

SHUSTER:  And for the next two debates, Gore seemed spooked.  Republicans have used these same tactics against their own.  In the 2000 presidential primary, Bush supporters repeatedly suggested Senator John McCain was temperamental and prone to emotional outbursts. 

When that charge didn‘t work, Bush supporters launched nastier personal attacks at McCain and his family in the 2000 South Carolina primary.

UNIDENTIFIED MALE:  Senator from New York.

CLINTON:  Mr. President, last week...

SHUSTER:  ... Over the last five years, Senator Hillary Clinton has steadily positioned herself to the political center on issues of national security, foreign policy and even flag burning.  She recently co-authored a measure to make it illegal, but Senator Clinton has also sought to rally Democratic activists who could play a crucial role in the 2008 presidential primary.

CLINTON:  I predict to you that this administration will go down in history as one of the worst that has ever governed our country.

SHUSTER:  By charging that Senator Clinton is angry, Republicans appear to be trying to rule in her efforts to show that she is tough enough and aggressive enough to be the first woman president.

(END VIDEOTAPE)

SHUSTER:  And indeed it‘s a delicate balancing act, both for Senator Clinton and for her detractors.  Clinton, while being tough, also needs to be likable.  Republicans want to try to mute her without appearing to play gender politics.  The question is, will Senator Clinton fall for the bait or use it to hit back against those attacking her?  I‘m David Shuster for HARDBALL in Washington.

MATTHEWS:  Thank you David Shuster.  We‘re joined right now by Hillary Clinton adviser Howard Wolfson.  Howard, thanks for coming on the show tonight.  Why are the Republicans, why is their national chairman talking about someone‘s emotional state?  I‘m not going to say never seen it, but it‘s rare in politics.  You talk about the other side‘s emotions, not their positions or where they stand or who they are even, but emotions.  What are they up to here?

HOWARD WOLFSON, ADVISER TO SEN. HILLARY CLINTON:  Well I think you‘ve hit it right on the head.  They don‘t want to engage in the substance of Senator Clinton‘s criticisms, her concerns over the failed Medicare drug program, the concerns over the budget deficit, the concerns over the budget cuts that were announced today.

And so they would rather engage in personal attacks.  If I had their record, I might pursue that strategy as well, but it‘s going to be a failed strategy, because at the end of the day, Americans are interested in the substance and the substance of Senator Clinton‘s remarks is what matters.

MATTHEWS:  You know, back in the ‘60s, Lyndon Johnson attacked Richard Nixon, who everybody thought was out of it politically, and he became the nominee in ‘68, largely because Johnson sort of made him the point man for the Republican Party.  Do you think this is helping Hillary Clinton to have the chairman of the party on the other side, nailing her?

WOLFSON:  Well I‘m not sure if this is helping or hurting.  There was a poll last week in the “Wall Street Journal,” I believe, that said that a majority of Democrats believe that either Bill or Hillary Clinton speak for them as a spokesperson.

And I think the Republicans know that Senator Clinton has a platform, she‘s willing to use it to speak out on issues that she cares about.  She‘s a champion for New Yorkers and the issues that she‘s been fighting for.  And they‘re going to do what they do, but they‘re not going to stop Senator Clinton from speaking out on these issues.

MATTHEWS:  You know, you‘re being kind to both Clintons, I‘m sure to both of them, but you‘re really ignoring the fact that it‘s Hillary Clinton, not Bill Clinton, that that poll, the one I looked at, showed as the top spokesperson for the Democratic Party.

WOLFSON:  Well it‘s an honor and a responsibility, and it‘s something that Senator Clinton takes seriously.  And the Republicans know that when she speaks out, when she goes to upstate New York, for instance, and speaks out about the Republicans failed prescription drug program, she gets attention and people listen. 

I think it‘s unfortunate that rather than engage her on the issues, rather than call her and other Democrats in to see how they can fix the program, Republicans choose to engage in these kind of personal attacks.  I don‘t think they‘re going to work.

MATTHEWS:  What do you think of her charge that the House of Representatives is run like a plantation?

WOLFSON:  I think the House Republican rank and file essentially validated that charge when they threw out their leadership and elected John Boehner.  I don‘t think there‘s any question that something is terribly wrong in the House. 

Chris, you worked in the House, I worked in the House in a slightly less-elevated position.  This is not the way the House has historically been run, shutting out the minority in this way.  I think the American people know that there‘s something terribly wrong with the way Republicans are running the House.  I think its the reason why Democrats feel so optimistic about our chances in this midterm elections.

MATTHEWS:  You know, I worked there so long ago that the speaker of the house, who was a Democrat, could get along with a president who was a Republican.  That‘s a long time ago, Howard.

WOLFSON:  Indeed.

MATTHEWS:  Very long time ago.  Let me ask you about Hillary Clinton‘s attitude towards this president, now that we‘re getting into their categorization of Mrs. Clinton or Senator Clinton‘s emotions.  Does she think Bush, George W. Bush, the president of the United States, is really one of the worst presidents in history?  Does she mean what she said?

WOLFSON:  Of course she means what she said.  I think a lot of people feel that way.  I think if you look at the president, he inherited a roaring economy.  The economy is now stagnating.  He inherited a budget surplus.  We now have the largest deficit in our history.  He‘s mismanaged Katrina and Iraq.  I think this president is going to go down as one of the worst presidents in history.  It‘s unfortunate but I think it‘s the truth.

MATTHEWS:  Is she a liberal?  What word are you comfortable with.  Progressive?  She has a 96 percent support of the leadership of the Democratic party, yet she did support the authorization to let the president go to war, although that wasn‘t clear what he was going to do at the time.  Where is she politically?  Would you say progressive, moderate, liberal, conservative?  Where would you put Hillary Clinton?

WOLFSON:  I‘m not sure I would use a label, I‘m not really comfortable with them.  I think that New Yorkers know that she is an advocate for them, a strong advocate.  Maybe I would use that as a term. 

MATTHEWS:  Is President Bush a conservative? 

WOLFSON:  He would describe himself, I assume, as a compassionate conservative.  I think more important than whether he‘s a conservative, he‘s obviously not a liberal, whether he‘s a conservative or not, I think is a question of competence. 

I think Americans are less interested in whether you‘re conservative or liberal, whether or not you can run the country and unfortunately this president and this administration has proven he‘s not able to do that very effectively. 

MATTHEWS:  I don‘t think she‘s as liberal as some Democrats.  In fact, I would put here to the right of Jack Murtha right now on the war.  And I think you‘re right.  I think it is hard to figure some of these things out. 

Congratulations, you‘ve got a big job ahead of you, getting Hillary Clinton elected president of the United States.  the greatest opportunity in my life will be to cover this campaign.

WOLFSON:  We‘re working on the re-election here in New York. 

MATTHEWS:  I know.  It‘s going to be a squeaker.  Who do you have running against you?  You don‘t even have an opponent? 

WOLFSON:  We have an opponent.  John Spencer is the former mayor of Yonkers is running against her. 

Careful, it‘s going to be a rough ride for you guys.  Thank you, Howard Wolfson, adviser to Senator Hillary Rodham Clinton. 

Coming up NBC‘s Andrea Mitchell on Hillary Clinton‘s White House ambitions.  She has been covering her for a long time, she knows Hillary Clinton‘s politics.  And the question whether Republicans would fear a Clinton candidacy or jump on it.  We‘re still trying to figure that out today.  Do they want her as an opponent or do they fear her? 

This is HARDBALL only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back.  Here to dig into this attack on Hillary Clinton is NBC‘s Andrea Mitchell who has covered Hillary for years.  Andy, you didn‘t see this ad they just ran for me that made me look like a bobble head.

Look, what do you make of this attack, I will now ask, I will throw the magic word out here, gender, is this focus on Senator Clinton‘s emotional state, her anger level, aimed at her gender? 

ANDREA MITCHELL, NBC NEWS CHIEF FOREIGN AFFAIRS CORRESPONDENT:  Well, you could say yes, because it certainly is a way that women can—they have been demonized, but look at David Shuster report with which you started this whole conversation.  It pointed out that the Republicans have used this effectively against their own, against John McCain and certainly against Howard Dean and against Al Gore.

So that whole business of you‘re too emotional and you can‘t be trusted, can be used against men as well as women, so I don‘t think it‘s fair to say that it‘s just gender. 

MATTHEWS:  Well, you know, the Nixon crowd, in the bad old days, did something like this to get Muskie upset.  He‘s a male obviously.  They got him to cry.  Big girls don‘t cry is the line, but are they trying to shake her? 

MITCHELL:  Well, I think they‘re trying to demonize her.  I think they are trying to take advantage of the fact that she can sometimes sound shrill, as she did in front of that audience in Harlem on Martin Luther King Day and try to make her seem more extreme than I think she really is. 

Look at what she‘s just done recently, they took some PAC money from her own political action committee and gave it to Bob Casey in Pennsylvania.  And he is a nominee in the Democratic race there. 

MATTHEWS:  Is this going to intimidate her into being a whispering candidate for president, talking like Marilyn Monroe.  Does it force her to soften her voice to the point where it sounds like she‘s trying to schmooze her way in. 

MITCHELL:  You‘ll see that she does what she‘s always done.  Which is a different voice, a different approach for different audiences, like all politicians do.  And she‘s very smart about it.  She‘s certainly moved herself over to the middle by getting on the Armed Services Committee, going to Iraq, going to Afghanistan and showing real credentials on military issues and you saw some of her votes on the war.

She‘s very highly regarded by the rank and file military for what she has done in support of the troops.  And that is part of her effort to show she can be a commander-in-chief. 

MATTHEWS:  Is there more coming here on this front, identifying her, trying to get into her emotions and shake her or attack her that way? 

MITCHELL:  I think so.  I think that there will be a lot more coming.  I think what you saw with Ken Mehlman over the weekend is just the beginning of this attempt, and we saw it on Martin Luther King Day, trying to frame her as too emotional, too liberal. 

MATTHEWS:  Thank you very much.  Andrea Mitchell, NBC Chief Foreign Affairs Correspondent. 

Up next, back to the N.S.A. domestic spying issue, and James Risen of The New York Times, one of the two reporters, the other one, who broke this big secret program.  There might be a Pulitzer in this for them.

And read Tom Curry‘s “Five Things we Learned from Alberto Gonzales‘ NSA Testimony.”   How the domestic surveillance program operates.  Who‘s being targeted and what comes next. 

Just go to our Web site for that—msnbc.com.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  “The New York Times” triggered the NSA spying debate in December when it first reported actually the existence of the top-secret surveillance program.  James Risen was one of the two reporters who broke this story, and I asked him earlier today to describe what the NSA does to keep track of terrorist conversations.

(BEGIN VIDEOTAPE)

JAMES RISEN, THE NEW YORK TIMES:  Well, a lot of the details of the program are still secret and we haven‘t—don‘t know all of them, but what we do know is that roughly 500 people at any one time within the United States, are being eavesdropped on by the NSA without search warrants or without court approval.

And then what they are doing is the NSA has gotten the approval of some large telecommunications companies to gain access to major telecommunications switches, which give them access to kind of the bloodstream of the American telecommunications network as phone calls and e-mails flow in and out of the United States.  They‘re latching on to those communications, and they‘re able to eavesdrop on people. 

In addition, that gives them access to large volumes of communications through which they can then do link analysis, pattern analysis.  In other words, look at thousands and thousands of communications and see what time of day they‘re being done, how frequently they‘re being done and they are doing all of this as part of—through computerization.

MATTHEWS:  As I understand it because of consequent reporting, Jim, what you‘re talking about is they get a huge amount of intercepts, thousands, perhaps, and then they look and see, well who went to high school with who, who went to school with who, who may have been in a military unit with someone else or seen at a restaurant with someone else.  And do this link analysis.  Is that how this works?

RISEN:  Yes, I think so.  I think there‘s a couple different parts of the program.  I think there‘s both the individual eavesdropping where they listen to the full conversation of individuals, and then they do this link analysis where they then look at all these people who might have something to do with this person.  And that gives them huge volumes of names and numbers, and then they decide which of that second layer do they want to listen to.

MATTHEWS:  The president said at the State of the Union, Jim, you wrote before this, but he said last week that we had a couple people of the 19 hijackers, the people who killed all the people at 9/11, who were on the phone with their controls back at home.  Would this system have picked up that kind of conversation?

RISEN:  That‘s been their argument and I think my understanding of it is that the way they have presented that is not accurate.  I think what the actual story is, those guys were on international cell phones, foreign cell phones, and that even with this program I think there‘s a real question about whether they could have identified the fact that they were in the United States at that time, because international cell phones—one of the problems with this program is we have later learned is if you‘re talking on a foreign cell phone to another foreign cell phone in the United States, you can‘t tell whether they‘re in the United States or somewhere else.

MATTHEWS:  So let me try to put this in common terms.  We know police can‘t stop you on 95 or any other route, 70 or 80 across the country, just because they don‘t like the looks of your car model.  They have to have some reason for stopping you and checking in their trunk.

In terms of electronics and modern communications, they‘re checking into thousands and thousands of our trunks, basically, trunk calls, if you will and they‘re deciding then if any of it is going to serve any value.  What do they do with all the extra information they pick up that they don‘t use to nail any terrorist?

RISEN:  Well that‘s a great question that we‘re still trying to understand.  Do they keep all of the conversations and communications of innocent Americans stored in some giant computer at Fort Meade, the headquarters of NSA?  And they haven‘t been willing to answer so far what do they do with all that communications.

MATTHEWS:  And we don‘t know.  You haven‘t been able to report that yet? 

RISEN:  Not yet, not yet.  And as we have said, we still are looking to see whether there are any abuses of this program.  We don‘t know yet whether anybody has really suffered any, you know, any innocent Americans have suffered as a result of this.  That‘s still a question.

MATTHEWS:  The attorney general today said a lot of the reporting—he didn‘t name you, maybe it‘s subsequent to your reporting when you broke this story in December for “The New York Times”—is misinformed, confused or wrong.  Has the administration ever come to you, Jim Risen and said, “this is wrong, that‘s wrong,” in your reporting or in your book?

RISEN:  No, they haven‘t, not on the NSA...

MATTHEWS:  ... All right, well let‘s listen to Porter Goss, the CIA director, and hear what he has to say on that point.

(BEGIN VIDEO CLIP)

PORTER GOSS, CIA DIRECTOR:  It is my aim and it my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information.

(END VIDEO CLIP)

MATTHEWS:  Jim, will you testify if called?

RISEN:  Well, I will protect my sources.  I‘d rather not have to cross that bridge until it comes, but I‘m going to protect my sources.

MATTHEWS:  This defense by the administration by Alberto Gonzales today, did he offer any surprises for you, or was this all by road?  Is this the standard administration defense, we won‘t tell you what the operation is, we‘re not talking.

RISEN:  Right.  This is essentially what they‘d been saying.  They put out a white paper a week or two ago where they provided a very detailed legal argument basically saying that the war resolution passed right after 9/11 gave us this authority, even though it didn‘t specifically specify this.  And they have argued then that FISA, the law that covers this issue is not sufficient, and so that‘s kind of what they‘ve been saying all along.

MATTHEWS:  If John Ashcroft, the attorney general at the time, wouldn‘t buy that argument, why would the American people or the liberals and the Democrats on the Senate Judiciary Committee?

RISEN:  Well I think most legal scholars so far have disagreed with the administration‘s legal stance on this and said that they believe that the administration is violating the law.  And there seems to be a fairly large consensus of legal scholars who are opposed to the administration‘s stance.  And one legal scholar told me he thought there was a greater consensus within the legal academic community on this than there was on the torture issue.

MATTHEWS:  And Ashcroft in this case—sorry to interrupt—and Ashcroft in this case, Jim, is with those who are critical?

RISEN:  Yes, Ashcroft and his deputy at the time, James Comey, both resisted the administration‘s efforts to extend this program, and that led to an extraordinary scene in 2004 when Ashcroft was very ill in the hospital and the—I think it was Andy Card and some others and maybe Gonzales had to go to the hospital and get him to try and recertify the program when Comey was refusing to do it and Ashcroft had been resisting as well.

MATTHEWS:  So he could be quite a witness before the Judiciary Committee if he were to come right now?

RISEN:  Yes, I think that would be very interesting if he did.

MATTHEWS:  Well, we‘ll all be there.  Thank you very much, Jim Risen, who broke this story.  The name of your book is “State of War.”  Thank you.

RISEN:  Thank you.

(END VIDEOTAPE)

MATTHEWS:  Join me tomorrow for live coverage of the funeral of civil rights leader Coretta Scott King.  President Bush and former presidents Clinton, Bush and Carter will all be there to pay their respects down in Georgia.  Coverage begins tomorrow at noon eastern here at MSNBC.

Then I‘ll be back 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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