updated 3/15/2006 2:12:13 PM ET 2006-03-15T19:12:13

Guests: Shakeel Syed, Charles Barron, Joyce Kauffman

JOE SCARBOROUGH, HOST, “SCARBOROUGH COUNTRY”:  Right now, you can also make a difference by staying with us and watching THE SITUATION with Tucker Carlson. 

Tucker, what‘s the situation tonight?

TUCKER CARLSON, HOST:  Thank you, Joe.  It‘s a lot of DUI for one judge, I have to say. 

Thanks to you at home for tuning in.  We always appreciate it.

Tonight, is it poetry or is it bigotry?  A 7-year-old girl is under fire for her racially charged poem entitled “White Nationalism Put You in Bondage.”  We‘ll show the lyrics that have sparked the outrage.

Also, why aren‘t Democrats supporting Russ Feingold‘s efforts to censure the president?  Has the Democratic Party gone soft?  Is Bush more popular than he seems?  We‘ll debate that. 

Plus the fur will be flying live in our SITUATION studio as the Moscow Cat Circus takes centers stage.  You won‘t want to miss this dazzling display of feline flexibility.  That‘s just in a few minutes. 

We begin tonight with a very questionable decision by New York City mayor Michael Bloomberg.  The mayor has decided not to fire jail chaplain Umar Abdul-Jalil over a speech the man gave to a group of Muslim students last April.  As we reported on this show last night, Abdul-Jalil was caught on tape attacking what he called, quote, “the Zionists of the media,” and calling the U.S. government a terrorist organization. 

Abdul-Jalil has now been suspended for two weeks without pay, but he will not be canned, Mayor Bloomberg said, because he generally preaches a message of tolerance, except on those rare occasions, apparently, when his message is both anti-Semitic and crazy. 

So how common is extremism among Muslims and Muslim chaplains in prison?  To find out we welcome Shakeel Syed.  Mr. Syed is a Muslim chaplain in the Federal Bureau of Prisons.  He joins us live tonight from Los Angeles. 

Mr. Syed, thanks for coming on. 

SHAKEEL SYED, MUSLIM CHAPLAIN:  My pleasure to have me on the show. 

CARLSON:  Thank you.  This is not the first time a Muslim chaplain in New York state has been reprimanded for saying things that are both anti-American and, in my view, crazy. 

A couple of years ago Imam Warthin Umar (ph), who was a Muslim chaplain, congratulated the September 11 terrorists, the hijackers, as quote, “martyrs” and said they essentially did the right thing.  So here you have two Muslim chaplains in New York making remarks that are pro terror, essentially.  How common is this?

SYED:  Sure.  First, thanks for having me on the show. 

CARLSON:  Of course.

SYED:  A disclaimer that I am a contractor chaplain with the Federal Bureau of Prisons.

CARLSON:  Yes.

SYED:  The two chaplains in question, they are the state chaplains in New York state. 

CARLSON:  Right.

SYED:  What the rules are in New York I am not fully aware of. 

But by and large, chaplains are governed with the ethics of preaching peace, pastoring the inmates, giving them counseling, spiritual counseling, advice for healthy living and so on and so forth.  That‘s the mandate for chaplains, and chaplains are expected to do this.

And in this instance, what he has said, I didn‘t go into detail, but I have read the headlines.  And I have also read the headline today of Mayor Bloomberg, who I believe suspended him not fired him because he believes in the freedom of speech, First Amendment. 

CARLSON:  OK.  So right.  There‘s been a lot of talk about the First Amendment.  But I want to get to the larger question of how common this is.  There aren‘t that many Muslim chaplains in American jails and prisons. 

There aren‘t a lot of then. 

Here we have two of them saying things that are completely beyond the pale.  And my question to you is how common is this?  I mean, if two rabbis were both revealed to have said hateful things, you‘d kind of wonder what the rabbis were doing in prison, wouldn‘t you?  Of course you would. 

SYED:  Sure.  Again, it‘s very uncommon.  For sure, it is very uncommon in Federal Bureau of Prisons in the Federal Bureau of Prisons Department of Justice.  There are only 11 full-time staff chaplains in the Department of Justice Bureau of Prisons, catering to 11 percent of the Muslim inmate population.  It is disproportionately low. 

The Office of Inspector General of Bureau of Prisons had in fact suggested to the Bureau of Prisons to increase the number of chaplains in order to eliminate or mitigate the inmate-led prayer services within the prison system, to avoid any mishap within the system. 

In this instance, these two instances that you are referring to, these belong to New York state.  And I again don‘t quite know how common it is in the New York state system.  But even in the California state system, we have not had any such incidences such as this.  This is very uncommon. 

CARLSON:  But you have had—at the California state prison in Sacramento, you had recently three inmates, three Muslim inmates arrested for plotting to blow up the Israeli consulate in Los Angeles, synagogues in Los Angeles, a National Guard recruiting station in California, apparently as part of a plot inspired by fundamentalist Islam.  It sounds like there‘s a problem at least, at least in that prison. 

SYED:  Right.  These are the allegations that are levied against these three inmates, but there hasn‘t been any instance when there is any institutionalized hatemongering or hate speech within the prison system. 

Contrary, in fact, in most of the prisons, chaplains are looked upon by the prisoner—by the prison authorities and also by the inmates as those who they can go to and seek spiritual counseling, seek assistance and confide in.

CARLSON:  Yes.

SYED:  So even in the California system, what you are referring to is an instance where inmates have done, not chaplains. 

CARLSON:  Right.  Well, then what do you think—so essentially if I‘m hearing you correctly, the Muslim chaplains you‘re aware of are a moderating force upon the inmates.  Given that, what do you think of this Abdul-Jalil story, this man getting up and casting aspersions on the Zionist-controlled media and calling the U.S. government a terrorist organization?  Should he keep his job?

SYED:  Tough question until we know all of the details. 

CARLSON:  How about those details?  We know that he said it.  He‘s admitted he said it.  We have an audiotape of him saying it.  There‘s no question what he said.  Knowing that, do you think that he can be a moderating influence?  The guy sounds like a whacko, frankly. 

SYED:  Well, you know, the other factor that I read while reading the material online is that he has been serving the New York state prison system for a very long time. 

Two, he is the supervisor of chaplains for quite a long time.  So the system knew who he is, and he did not have any such instance within the prison system.  What he spoke is he spoke outside the prison. 

I am certainly not an advocate of him.  But the chaplain‘s mandate, again, as I said earlier, is to foster an environment for the inmates where they can come and talk to the chaplain for spiritual counseling for advice, for healthy living.  And to also calm them down and seek advice and counseling.  So that‘s the chaplain‘s mandate, not political work. 

CARLSON:  I hope not.  Shakeel Syed, joining us from Los Angeles. 

Thank you very much for coming on.

SYED:  Pleasure, sir.  Thank you for having me. 

CARLSON:  Well, two weeks ago, 7-year-old Autumn Ashanti stood at a Black History Month event at a New York public school and delivered an original poem entitled “White Nationalism Put You in Bondage.”  The poem blames white people for just about everything.  Here‘s a selection of it. 

Quote, “White nationalism is what put / you in bondage. // Pirates and vampires like / Columbus, Morgan and Darwin // Drank the blood of the sheep, / trampled all over them with / Steel, tricks and deceit. // Nothing has changed take a / look in our streets.”

Before reading the poem, Autumn asked black students in the audience to stand and recite the Black Child‘s Pledge.  White students were told to remain seated. 

Autumn later explained her feelings about white people to a reporter. 

“I feel they‘re devils and they should be gone,” she said. 

When the school later apologized to parents for her performance, Autumn‘s father, a member of the Nation of Islam, denounced administrators as, quote, “racist crackers.” 

Were Autumn‘s First Amendment rights violated by that apology?  New York City councilman Charles Barron thinks so.  He joins us live tonight from New York. 

Mr. Barron, thanks for coming on.

CHARLES BARRON, NEW YORK CITY COUNCILMAN:  Well, thanks for having me.

Just one quick correction. 

CARLSON:  Yes.

BARRON:  She did this poem about the black power, or Black Panther salute.  The day before there was a near riot in the school with some of the black and Latino students.  So she said that this poem, this pledge, is for the black and Latino students so that you can stop the violence.  She was trying to bring peace.  She didn‘t call it a white child‘s pledge.  It was a Black Panther pledge calling for unity, peace...

CARLSON:  Unity—unity among black people.  But since 1954, we don‘t have schools for black people or white people.  We have schools for all people.  She said, quote, “This wasn‘t really for white people.  It was for black people.”

BARRON:  Exactly. 

CARLSON:  Hold on.  You‘re not—I‘m sorry.  You‘re not allowed to say things like that, and you‘re certainly not allowed to enforce them in public schools.  We don‘t have segregation anymore. 

BARRON:  Now you don‘t know what you‘re talking about.  On the real side, this was a Black History, Woman‘s History Month program.  You are allowed to talk specifically to black people during Black History Month.  And specifically to women during Women‘s History Month. 

CARLSON:  OK.

BARRON:  So what her poem was relating is the riot, the near riot that happened.  She said this is not for the white students.  This is for the black and Latino students. 

CARLSON:  But how do you think the white students felt about that?

BARRON:  Probably—probably offended.  I don‘t know how we do not offend you when we talk about ourselves.  It‘s interesting.  No matter what we say—you can have all of the white power in the world, and no one says anything.  The minute we say black pride, black heritage, you get bent out of shape. 

CARLSON:  Hold on.  Slow down.  Congressman, let‘s just...

BARRON:  That‘s my job. 

CARLSON:  OK.  I know.  Can I call you congressman?

BARRON:  Yes, that‘s a good name, because that‘s my next job. 

CARLSON:  Good luck with that.  Councilman, I want to get back to the facts at hand here. 

BARRON:  Yes.

CARLSON:  She said of white people, “It‘s terrible what they do, but don‘t be surprised about it.  All they do is steal, rob, and murder.  That‘s the only thing they are raised to do.  Even the ones that try and fix up with us, they‘re still devils.  I feel they‘re devils and they should be gone.  We should be away from them and still be in Africa.” 

White people are devils.  What do you think of that, Mr. Councilman?

BARRON:  Well, you know, she‘s entitled to her beliefs, and she said...

CARLSON:  Nobody is contesting that.  I want to know what you think of her beliefs. 

BARRON:  She said—and what she is specifically saying out of the Nation of Islam, they‘re talking about whites that act devilish.  The ones who enslave.  The ones who took her ancestors from Africa, murdered us during the miafa (ph), the middle passage. 

CARLSON:  She‘s talking—hold on.  I‘m sorry.  You‘re twisting her words, and I have her words. 

BARRON:  That‘s what she‘s talking about. 

CARLSON:  I have her words right in front of me.  Let me tell you exactly what she said.  She said, “I feel they are devils.”  That‘s present tense.  That‘s not 300 years old.  “And they should be gone.” 

BARRON:  You use generalizations.  All of us do that.  She‘s talking about the slave masters, those who shoot us 41 times, Amadou Diallo.  Those who stick things up our rectum, Abner Louima. 

CARLSON:  I can‘t believe—I can‘t believe—here you have...

BARRON:  She‘s talking—she‘s talking about...

CARLSON:  You‘re blowing my mind.  You have a little girl—slow down.  You have a little girl.

BARRON:  Right.

CARLSON:  Mr. Councilman, who is calling white people devils.  Now I would expect you‘re an elected official.  You‘ve got sort of a real job, right?  I would expect you would say, just as a matter of course, well, that‘s wrong.  You‘re not allowed to call members of another race devils. 

BARRON:  No.

CARLSON:  And here you are excusing those words away. 

BARRON:  First of all, you don‘t understand the black culture.  You don‘t understand Black Panthers. 

CARLSON:  I understand hate speech when I hear it, and there it is

BARRON:  You don‘t understand the context in which some of our language comes.  I don‘t condemn her at all.  She‘s a 7-year-old genius.  You should hear some of her poems about Columbus.  And Columbus in his own diaries said that he killed black people and took this land from the Native Americans.  And when she raised that, you had a fit.  It‘s nothing we can say...

CARLSON:  What do you mean, you all?  I don‘t even know what you‘re talking about. 

BARRON:  Well, let me—not you.

CARLSON:  White devils like me.  Right.  I get exactly what you‘re talking about. 

BARRON:  Don‘t try to make light of it.  Don‘t try to make light of it.

CARLSON:  Make light of it, I don‘t know what else to do.  What you‘re saying is so over the top and so wrong. 

BARRON:  No, no.

CARLSON:  I don‘t know what to do but laugh. 

BARRON:  Let me say it.  You can laugh all the want.  The bottom line is that she did two brilliant poems that spoke to history, white nationalism, which does exist, and black unity, which needs to exist. 

CARLSON:  Look, I understand your position.  I understand your politics.  And I understand your race baiting.

BARRON:  No, you don‘t. 

CARLSON:  I think I do.  Let‘s just say for the sake of argument I do.

BARRON:  You don‘t.

CARLSON:  But let‘s—let‘s remove ourselves from the political sphere for a minute.  We are talking about little kids.  Do you think—I don‘t know if you‘re a father or not. 

BARRON:  Yes, I am a father. 

CARLSON:  But do you think children ought to be subjected to garbage like this?  I don‘t care what color they are.  I‘m offended that little kids, including this little girl who‘s only 7, who‘s been fed this garbage, this poison by her parents, obviously, is involved in this?

Don‘t you think it‘s wrong to bring this level of anger and hatred, calling people devils...

BARRON:  Not at all.

CARLSON:  ... blaming people for murder, into a school environment?

BARRON:  Not at all.  Not at all.  She brought a poem of unity, of love, of pride. 

CARLSON:  Unity?

BARRON:  The Black Panther poem.  And then the poem about Christopher Columbus was the truth.  And what you‘re not used to...

CARLSON:  How is it unity when some kids aren‘t allowed to stand because of the color of their skin?

BARRON:  Let me tell you.  Let me tell you.  The reason why it was about unity is because there was a near riot prior, and she wanted to bring the black and Latino youth together and said that you should pledge to love one another, to stop the violence. 

CARLSON:  OK.

BARRON:  Give her credit for that.  She‘s 7 years old. 

CARLSON:  I don‘t think—I don‘t think any word that emerged from her mouth was her own.  I don‘t want to think that a 7-year-old girl could really believe people are devils. 

BARRON:  Well, you know, you should know what—listen to this.  Listen to this.  When she was speaking to the press today on the steps of city hall, and they asked her, how did she come up with these poems, not once did she look back at her father.  She gave the prime sources of her research, films, books.  She reads.  She is a genius.  And you should look at the genius in her and not be so caught up in her politics.

CARLSON:  I‘m shocked.  I must say, if some little Aryan Nation kid got up...

BARRON:  No comparison.

CARLSON:  ... and said something similar, I would feel like vomiting just as I do now.  I feel sorry for the child.  And do you know what my ultimate question is, Mr. Councilman? 

BARRON:  What?

CARLSON:  Who elects you?  Who are your constituents?  You could go on television and defend something like this, and I‘ll bet you‘ll still get elected.

BARRON:  Do you know what—do you know what my question is for you?

CARLSON:  Yes.

BARRON:  Who pays you to come on this show?  Because some of the things that you said are outrageous. 

CARLSON:  You got me.  You got me.

BARRON:  Outrageous.

CARLSON:  You got me.  Mr. Barron, thanks for coming on. 

BARRON:  My pleasure.

CARLSON:  You blew my mind, but I appreciated hearing it anyway. 

Still to come, there‘s a gay adoption controversy brewing in Massachusetts.  We‘ll bring you the details.

Plus, parts of the federal case against Zacarias Moussaoui have been deemed contaminated by the judge.  Will the 9/11 co-conspirator actually escape the death penalty due to a government screw up?  Find out when THE SITUATION comes back.

(COMMERCIAL BREAK)

CARLSON:  Still to come, Russ Feingold‘s resolution to censure the president over the wiretap program has stalled dead in the water.  Are Democrats suddenly afraid of Bush? 

Plus, should you have to pay for in-flight leg room?  That and other pressing issues when we come back.

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

Over the years, Catholic Charities of Boston has matched more than 700 children with parents through their adoption program, but no more.  The state of Massachusetts is requiring the organization to place children with gay couples or at least be open to the possibility of doing that.  That‘s something both the pope and the local Catholic bishop have said is immoral. 

Unable to square the demands of state with the demands of conscience, Catholic Charities is giving up the adoption business altogether. 

Joyce Kauffman is the chairwoman of the family law section of the Massachusetts Lesbian and Gay Bar Association.  She disagrees with Catholic Charities‘ decision, and she joins us live tonight from Boston to talk about it. 

Joyce Kauffman, thanks for joining us. 

JOYCE KAUFFMAN, MASSACHUSETTS LESBIAN AND GAY BAR ASSOCIATION:  You‘re

welcome.  It‘s a pleasure to be here.

CARLSON:  Thanks.  Now, no matter how you, or even I, for that matter, feel about allowing gays to adopt, there‘s no question about how the Catholic Church feels about.  The pope has said, Pope Benedict XVI, called it, quote, “gravely immoral.”  The local Catholic bishop, as you know, has said that it‘s not allowed. 

And it seems to me wrong of the state of Massachusetts to force Catholic Charities, which is doing a good job otherwise, to violate its religious principles and do something that its pope has said it can‘t do. 

KAUFFMAN:  Well, I think you‘re twisting it around a little bit.  The state is not forcing the Catholic Church to do anything.  The Catholic Church, through Catholic Charities, entered into a contract with the state to do adoption work for the Department of Social Services.  As such they‘re subject to the same non-discrimination rules that everyone else is subject to. 

CARLSON:  But wait a second.  Hasn‘t—I mean, they‘ve had that—

Catholic Charities has had that contract with the state long before the law requiring this nondiscrimination law came into effect of the so the state changed the rules. 

KAUFFMAN:  Well, the state didn‘t change the rules, except insofar as they passed a nondiscrimination law, and Catholic Charities, like every other agency that works in the state, has to abide by that law.  It‘s not any different.  And in fact, Catholic Charities has placed children in gay families. 

CARLSON:  Yes, I know they have.  But that has been contrary to the teachings of the Catholic—of the pope and now of the bishop.  And it seems to me you‘re punishing, or people who are advocating for not allowing an exemption here, are punishing the children.  Catholic Charities does a good job.  I‘m sure you would concede that.

KAUFFMAN:  I think Catholic Charities itself does a very good job.  And in my experience has been that the workers, the social workers at Catholic Charities, are doing wonderful work.  And it‘s a shame that the Catholic Church has decided that they‘re no longer going to do adoption.  I think you have to turn it around. 

CARLSON:  Hold on.  Why can‘t the state be flexible in this?  Why is -

look, the government...

KAUFFMAN:  You can‘t be flexible when it comes to discrimination.  You simply cannot. 

CARLSON:  Wait a second.  There are plenty of places in the state of Massachusetts that gay couples looking to adopt can adopt.  They don‘t need to go to Catholic charities, as you perfectly well know. 

KAUFFMAN:  That may be true.  But Catholic Charities places—or has placed in the past, some of the hardest to place children.  And frankly, more gay and lesbian people are willing to take those children than many other people. 

CARLSON:  That‘s great.  Then they can go to other adoption agencies, and they can—they literally can go... 

KAUFFMAN:  They will have to now. 

CARLSON:  But now these children who are placed—have been placed by Catholic Charities have less of a shot of getting a home all because of ideologues in the states of Massachusetts want to impose their views on the Catholic church. 

KAUFFMAN:  I don‘t think that‘s true.  I think Catholic Charities has turned their backs on the children that they serve.  They‘ve just completely turned their backs.

CARLSON:  Hold on.  Why not give them an exemption?  You‘ve already said that there are plenty of other places gay and lesbian couples can go to adopt children in your state.  You have already conceded that.

KAUFFMAN:  You said that.  I didn‘t say that.  You said that.

CARLSON:  You agree.  Well, you know it‘s true.  You agreed because you know it‘s true.

KAUFFMAN:  There are other places.  That‘s not the point.  The point is that no organization...

CARLSON:  The principle.  So your principle comes over the welfare...

KAUFFMAN:  No organization should be allowed to discriminate against gay men and lesbians in Massachusetts.  That‘s the law. 

CARLSON:  And that principle is more important to you than the placement of orphans?  Is that what you‘re saying?

KAUFFMAN:  No.  The placement of the children is very important to me. 

CARLSON:  But not as important as that principle, I guess?

KAUFFMAN:  No.  I think that both things can co-exist and they do for every other agency that has a state contract. 

CARLSON:  The pope says it‘s, quote, gravely immoral.  This is a—

I‘m not Catholic.  I‘m not arguing on their behalf.  I‘m just observing the obvious point.  The pope says it‘s gravely immoral.  They can‘t do it.  And because you won‘t give them an exemption, these kids are going to have less of a shot of getting parents. 

KAUFFMAN:  Frankly—frankly, I think that it‘s the Catholic Church that is immoral.  The Catholic Church—the hypocrisy of the Catholic Church, a church that...

CARLSON:  OK, you don‘t like the church.

KAUFFMAN:  ... is an institution that has covered up sexual abuse.

CARLSON:  Oh, please.  OK.

KAUFFMAN:  They have abused children since the 14th Century. 

CARLSON:  That‘s great.  OK, whatever.  But that has nothing to do with the point that there are all these little kids that need homes.  Catholic Charities does a good job of placing them.  But why not give them an exemption because that would violate your sacred principle of equal rights for gays?

KAUFFMAN:  It‘s not a question of sacred principles.  It‘s a question of the law of nondiscrimination in Massachusetts.  The Catholic Church, in making a decision to stop doing adoptions altogether, has turned its back on the children. 

CARLSON:  I think you ought to be a little more flexible on this because the kids are suffering. 

KAUFFMAN:  I actually think the Catholic Church ought to be a little bit more flexible. 

CARLSON:  They‘re not going to be, because it‘s the Catholic Church, so cut them a break.  All right?

KAUFFMAN:  I‘m not going to cut them a break.  They don‘t cut us a break.  Why should I cut them a break?

CARLSON:  Because the children suffer when you don‘t, that‘s why. 

KAUFFMAN:  The children are suffering because of the decision of the Catholic Church. 

CARLSON:  Well, why don‘t you and the Catholics get together and work out a compromise?

KAUFFMAN:  And how do you think—how do you think it feels to the children who have been placed in gay families to have the church say to them, your parents—it‘s immoral for you to be placed in that home?

CARLSON:  I‘m sure they don‘t like it.  You‘re not going to agree with the Catholic Church.  That‘s not—you know what I mean?  We‘re not going to fix that in this segment. 

KAUFFMAN:  Well, the Catholic Church has to abide by the laws of the common wealth just like every other adoption agency. 

CARLSON:  Authoritarian, in my view.  Anyway, thanks for explaining it, your point of view, anyway.  I appreciate it.  Joyce Kauffman. 

KAUFFMAN:  Thanks for having me. 

CARLSON:  Thank you.

Still to come, want a little extra leg room on your next flight?  It‘s going to cost you.  We‘ll tell you how much when THE SITUATION returns.

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

The only man to be charged in this country in connection with the September 11 attacks could be spared the death penalty.  The judge in the case of Zacarias Moussaoui has dealt prosecutors a serious blow, saying that one of their lawyers improperly coached witnesses, maybe in a criminal way. 

NBC‘s justice correspondent Pete Williams has the latest. 

(BEGIN VIDEOTAPE)

PETE WILLIAMS, NBC NEWS CORRESPONDENT (voice-over):  The judge today barred prosecutors from making any claim that airport security would have been beefed up, potentially preventing the hijackers from carrying out their suicide attacks, if only Moussaoui had told the truth when he was arrested three weeks before 9/11.  That means half the case for the death penalty is now gone. 

A woman whose husband died in the attack on the Pentagon called it a body blow. 

ROSEMARY DILLARD, WIFE OF 9/11 VICTIM:  I felt my heart had been ripped out.  I felt like my husband had been killed again.  I felt like the government has let me down one more time. 

WILLIAMS:  The ruling comes after a day of disclosures about Carla Martin, a lawyer for the Transportation Security Administration.  She improperly sent e-mails to six federal aviation officials, appearing to coax them on how to testify.  And in court today some of those officials say they would have been willing to testify as defense witnesses. 

But Martin told prosecutors that they refused to testify for the defense without even asking the witnesses. 

The judge, Leonie Brinkema, today said the witnesses and their evidence are now seriously tainted.  And she said, quote, “I don‘t think in the annals of criminal law there has been a case with so many problems.”

Legal experts say it‘s a huge setback in an already difficult case, asking for the death penalty because Moussaoui lied and failed to admit he was a terrorist. 

TOM CONNOLLY, DEFENSE ATTORNEY:  This is a fatal blow.  This case started out shaky on legal and factual footing, and it‘s only gotten worse.  In the last 30 years, there hasn‘t been a death case in this country where the allegation was that someone failed to act. 

(END VIDEOTAPE)

CARLSON:  NBC‘s Pete Williams reporting for us tonight. 

We want a lot from our government, but in the end we only expect a very few things.  Pave the roads, secure the borders, bring the guilty to justice.  Those are the things we have a right to demand.  In the Moussaoui case, the government has fallen far short, especially on the last one. 

Again, Moussaoui is the only person charged in this country in the 9/11 attacks.  The only one.  The government had one shot and screwed it up.  And not only screwed it up, but screwed it up in the dumbest possible way.  Coaching witnesses?  Anybody who‘s ever watched an episode of “Law & Order” knows that is not allowed. 

Apparently, the lawyer who blew it, Carla Martin, has been a government lawyer for 15 years.  That‘s scary.  Her mother says tonight that Martin is extremely upset.  In fact, she‘s crying.  Well, she ought to be. 

Up next, why is Democratic Senator Russ Feingold calling other members of his party cowards?  Is he right?  Are they cowards?

Plus, try getting your finicky cat to do flips and handstands like these furry felines.  The Moscow Cat Theater brings their action to THE SITUATION floor live next. 

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

The president‘s approval rating has hit an appalling new low.  So why aren‘t Democrats seizing the opportunity to run roughshod over the White House and Republicans in Congress?  Wisconsin Senator Russ Feingold is wondering the same thing.  Not a single Democrat has joined his effort to censure President Bush over domestic spying.  What are the Democrats afraid of?

Here to help answer that, Air America radio host as well as literally a Rhodes scholar, Rachel Maddow—Rachel. 

RACHEL MADDOW, AIR AMERICA RADIO HOST:  They doesn‘t help me with the whole why aren‘t Democrats jumping onboard here. 

CARLSON:  Interesting question.  Russ Feingold—who I kind of like, actually.  I think Russ Feingold is a pretty straight shooter, you know.  He‘s always the 1 to 99. 

MADDOW:  Yes.  He‘s an iconoclast. 

CARLSON:  He is.  I like that.  I‘m amazed at Democrats cowering with this president‘s numbers so low.  Interesting.  And they did cower.  Chuck Schumer, who you can‘t get him away from the camera, wouldn‘t comment on it.  Debbie Stabenow said, quote, “The resolution that Feingold has proffered raises some very important issues” but refused to say what those issues were.  I mean, they‘re wusses.  Why?

MADDOW:  Because—well, I mean, the same reason that Democrats aren‘t jumping onboard with Jon Conyers‘ impeachment resolution.  I think that Democrats have not necessarily decided that this is the time and the place to take the president on on this.

That said, I don‘t think that Russ Feingold expected all he Democrats to jump onboard with him on this either. 

CARLSON:  How about one?  How about one or two?  I mean, nobody...

MADDOW:  That‘s not why he‘s doing it.

CARLSON:  Of course not.

MADDOW:  He is not doing this because he thinks he‘s going to get Jim Jeffords.  He‘s not doing this because he wants one more vote or two more votes. 

CARLSON:  Jim Jeffords is independent, not a Democrat. 

MADDOW:  Fair enough.  But he didn‘t do it for those reasons.  So why do you put this forward like this if you‘re a member of the Senate when you know that it‘s not going to pass?  Why do you do this?

You do it to refocus the debate, to try to get some attention, to try to change the way that this issue is being talked about.  And I think that on that level, he‘s taken a principled stand.  I support him for it. 

CARLSON:  I‘m in no way attacking Russ Feingold at all.  And I‘m not even attacking Democrats.  I am just wondering, though, what the strategy is here. 

If you can‘t—if Bush is at 36 percent, 39 percent, he‘s about where Nixon was when impeachment was being discussed for Nixon.

MADDOW:  Yes.

CARLSON:  But he‘s very, very low.  Historically low.  If you can‘t jump up and down and make angry noises about Bush and talk about impeaching him and at least try and censure him at least as a kind of conscience vote.  If you can‘t do it now, what exactly can you do?

MADDOW:  Well, I think that you can take back at least one house of the Congress in November, which I think is what the Democrats are trying to do. 

CARLSON:  Right.

MADDOW:  And I think that putting forward, essentially, an impeachment vote right now when they‘re not going to get it passed, Democrats are saying, well, there‘s a real opportunity.  Costs a lot.  We‘re not going to go with it. 

But Feingold is doing the right thing by changing the way the NSA vote

the NSA issue is being talked about. 

CARLSON:  What is the opportunity cost?  What is the downside to doing this?  That Democrats will look scary?

MADDOW:  No.  The Democrats aren‘t—no.  I think the downside to doing is is that when you know that it‘s not going to pass, because Republicans in Congress see their job as defending the administration, rather than standing up for the rights of Congress.  When you know it‘s not going to pass, when Bill Frist responds to the censure resolution by saying, “I hope Iran isn‘t listening.”  And Wayne Allard today said...

CARLSON:  Wait.  Hold on, slow down.  Majority Leader Bill Frist requested, quote, “An immediate vote on the matter on Monday.”

MADDOW:  After saying, “I hope Iran isn‘t listening.” 

CARLSON:  I‘m just saying you can‘t blame Republicans for this.  This is a failure of nerve on the part of Democrats. 

MADDOW:  No.  Democrats—the opportunity cost here is that Democrats know this thing isn‘t going to pass.  When the House and the Senate are both controlled by Republicans and the Republicans have shown that their interest here is in defending the president rather than standing up for the rights of Congress.             

CARLSON:  That‘s actually...

MADDOW:  It‘s not going to pass.  There‘s an opportunity cost to spending time on it. 

CARLSON:  So they just—they have so many other important things to do.  Those Democrats are so engaged in the business of making the country better.  They don‘t have time to hate President Bush?  No time to hate.

MADDOW:  Russ Feingold brought up this measure, right, because he‘s saying, listen, the president is given Congress the big middle finger.  What are we going to do about it?  Are we going to say that the issue retroactively making what he did legal so we can cover up for him?

Or are we going to say, “We‘re Congress.  You can‘t break the law. 

We‘re a cohesive form of government.

MADDOW:  I get the point. 

CARLSON:  I just think that Bush is once again just spanking them like the bad little girls they are.  I really think that.  I think he‘s just...

MADDOW:  Spanking Frist?

CARLSON:  Well, to some extent Republicans.  I do think he‘s treated Republicans in Congress with contempt, but I think Democrats should just toughen up, boys and girls. 

MADDOW:  I think he‘s spanking the Constitution like a little girl. 

CARLSON:  All right. 

MADDOW:  I believe he should do it. 

CARLSON:  Rachel Maddow, thank you. 

MADDOW:  Thanks, Tucker.

CARLSON:  Stay tuned.  Still plenty more ahead tonight on THE

SITUATION.

(BEGIN VIDEOTAPE)

CARLSON (voice-over):  Straight justice.  Wait until you hear why some Florida prostitutes are packing a whole different kind of protection these days. 

Then a brush with fame.  Which of these lock loving ladies will measure up to the title of Miss Longest Hair?

Plus, we‘ll introduce you to one hospital aid who never complains about bedpan duty. 

And forget Barnum and Bailey.  We‘ve got the greatest show on earth. 

Live on our stage, you‘ll definitely want to wake the kids for this one. 

It‘s all ahead on THE SITUATION. 

(COMMERCIAL BREAK)

VANESSA MCDONALD, PRODUCER:  Coming up, is flipping someone the bird obscene or is it just an expression of your First Amendment rights?  We‘ll debate that. 

Plus a circus performed by cats. 

CARLSON:  Let me repeat, a circus performed by cats.  Live in our studio.  Don‘t go away.  We‘ll be right back.

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

Mark Twain once said, “All you need in life is ignorance and confidence and then success is certain.”  Joining me now a man who is certain to succeed, at least by those criteria, “The Outsider,” ESPN Radio and HBO Boxing host Max Kellerman. 

MAX KELLERMAN, ESPN RADIO:  And based on empirical evidence, qualifies you to be the president of the United States, I think, Tucker. 

CARLSON:  Very good.  Actually, I wondered if you were going to do that.  All right. 

All right.  How much is a little extra leg room worth to you on a long flight? How about $15?  How does that sound?

Northwest Airlines began a program today that allows people to buy leg room on domestic flights.  The passengers check in.  They are offered the option of paying an extra $15 to sit in an exit row or in an aisle seat. 

Exit rows on Northwest offer as much as 10 inches of extra leg room.  Max, this is the most brilliant thing I‘ve heard in a long time.  This is the free market at its best, OK?  People who are short and who have shorter legs aren‘t as bothered by cramped seating in airplanes.  Obviously, people with longer legs are much more bothered by it.  They pay a premium, problem solved.  $15 isn‘t a lot.  It‘s worth it if you‘re tall.  I can‘t see what‘s wrong with this.

Tucker, I don‘t see how you could use the words “free market” and “airlines” in the same sentence. 

MADDOW:  I agree.  There‘s not enough of the free market in airlines. 

That‘s why this is good. 

KELLERMAN:  Actually, JetBlue—talk about the free market.  JetBlue came out, showed everyone how it‘s done, everyone started flying JetBlue.  Let‘s face it.  Everyone is scrambling trying to figure out how to compete. 

And they are charging for something that was until now free.  It would be as though—you know those annoying commercials they blare for their airline that you can‘t get away from because it‘s over the loud speakers? 

CARLSON:  Yes.

KELLERMAN:  It‘s as though they were to charge money to not hear those. 

CARLSON:  But the difference is there are only so many exit row seats.  There are only so many aisle seats.  They were free before, but not everyone got one.  They were assigned almost at random.  Now they can go to the people who really want them. 

KELLERMAN:  Well, I mean, you could always request them, you know, when you‘re booking your flight you could request them. 

This is great for me because I am booking last-second, and often I‘d pay an extra $15 to sit in an exit row if it‘s a last-second flight.  But it does seem that they‘re charging for something that should be free. 

CARLSON:  Yeah, it should be, but now you can get it every time because you‘re willing to pay the $15.  It‘s beautiful.

KELLERMAN:  Pretty good idea. 

CARLSON:  Is the act of giving the middle finger an obscenity or is it an expression of free speech or both?

A Pennsylvania man has filed a federal lawsuit claiming it is his constitutional right to flip you the bird.  (UNINTELLIGIBLE) flipped off a construction worker while driving his car last year.  He was pulled over by cops and given a citation for, quote, “obscene disorderly conduct.” 

He filed the lawsuit yesterday saying his First Amendment rights were violated.  I want to know the name of the construction worker that tattled on this guy.  What a wuss.  But of course it‘s constitutionally protected.  He is passing on a statement about his feelings with a single finger.  Now, yes, it‘s obscene, yes it‘s pithy, yes, it‘s nonverbal, but it‘s still I think a protected sentiment, because, you know, it‘s a view. 

KELLERMAN:  Well, certainly it should be a protected sentiment.  But the fact is obscenity law, you know, look, if either you‘re for obscenity law or you‘re against it.  If you‘re for it I don‘t really see how you argue with this.  Even broadcast television.  Take this medium. 

Over at the networks, you‘re not allowed to curse, or weren‘t for years, because the legal argument was the airwaves, which the waves travel through, belong to everybody. 

CARLSON:  Right.

KELLERMAN:  And so they‘re really enforcing obscenity laws all the time on television, on radio.  Howard was on Letterman last night and he was talking about Les Moonves.  How many times has he complained about the FCC and clever ways to get around it.  It was still fined.  The fact that obscenity laws exist, unfortunately, in many cases, and this is one of those cases. 

CARLSON:  Yes.  But where—the distinction between obscenity and protected material is this.  Obscenity exists only to titillate, right?

It only—it panders to our lower nature.  Expressions that are protected are those that are, you know, conveying some important thought or idea.  And I think in some cases the middle finger conveys an important thought or idea.  Hey, buddy...

KELLERMAN:  It‘s a slippery slope.  I mean, you think about pornography in this country.  And these are a lot of the same arguments why art is protected.  But pornography until relatively recently in our history wasn‘t, because you can‘t really—it doesn‘t appeal to—as soon as you hear about something appealing to our higher nature and therefore protected by the Constitution, in fact the Constitution protects it whether or not it appeals to our higher nature. 

CARLSON:  That‘s true.  I just think we ought to be worried.  First they came for our middle fingers.  I think I don‘t know.  That‘s the rallying cry.

When they came for the thumb, there was no one left.  Quite a starting five, by the way, don‘t you think, the hand?  Don‘t you think, Tucker?  Great starting five, when you think about all the fingers on the hand. 

CARLSON:  Exactly.  Max Kellerman joining us live tonight.  Thank you, Max. 

Still to come, the cats are out of the bag and they‘re tight roping across our set.  We‘ve got a live performance from the world‘s best and perhaps the only cat circus.  You really have to see it to believe it. 

We‘re coming right back.  Stay tuned.

(COMMERCIAL BREAK)

CARLSON:  Welcome back. 

If you‘re not entertained by this next segment, we completely give up.  We‘re going to start selling insurance.  You‘re about to watch a circus performed by cats.  Yes, cats.

The Moscow Cats Theater has become a phenomenon in New York City.  The show has its own theater on Broadway right alongside giants like “The Lion King” and “Phantom of the Opera.”

Yuri Kuklachev is the clown who conducts the Great Feline Orchestra.  He is production manager.  His translator, Yanna Stelfin (ph), and all of their cast joining us live in the studio tonight.  And here they are.  Hey!

Oh, yes.  Thank you.  You have a cat on the bicycle.  There we go. 

That‘s amazing.  We‘ve never had this before. 

Outstanding. 

That‘s amazing.  Amazing cat.  I like it. 

Fantastic.  Outstanding.  All right.  Amazing. 

There you saw it.  The Moscow Cat Circus.  All right.

UNIDENTIFIED MALE:  We‘ve got one more.

CARLSON:  One more.  All right.  I‘ve got a cat on my head. 

Amazing!  The Moscow Cat Circus, ladies and gentlemen.  Live every night in New York City.  And for one night here in THE SITUATION studios.  I can‘t recommend them highly enough.  Go.  Guaranteed to get a cat on your head by the end. 

Thank you guys for joining us. 

Still ahead on THE SITUATION, police in Florida are getting some unexpected help in their effort to find a serial killer.  Crime fighting hookers strut on “The Cutting Room Floor,” next. 

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  Time for “The Cutting Room Floor,” and for that we go to a very catty man, Willie Geist. 

WILLIE GEIST, PRODUCER:  What is it that you‘d like for me to do at this point in the broadcast?  We just had a cat circus.  I got nothing. 

CARLSON:  I had about an eight-pound raccoon cat on my head. 

GEIST:  You did.  Did the clown pet you, by the way?

CARLSON:  The clown pet me.  I liked that.  Very cool.  I‘m going to the show.  They won me over.

GEIST:  Let me know how it goes.

CARLSON:  The NCAA basketball tournament starts in about 36 hours. 

The first games tip off just about noon Eastern Time on Thursday afternoon. 

That‘s also the time when Americans will begin ignoring their jobs.  According to a new study, March Madness will cost employers nearly $4 billion in lost productivity this year.  That‘s because workers spend company time filling out their brackets and following the games on television. 

GEIST:  And a small price to pay for the greatest—single greatest sporting event of all by far, the NCAA tournament. 

CARLSON:  Really?

GEIST:  It‘s true.  And this first Thursday of the year is actually to most people a national holiday.  My dad used to let me stay home from school for it.  This is true.  To watch the first day of the games. 

I saw you pouring over your bracket earlier today, my friend.  How did it come out?  Who‘s going all the way? 

CARLSON:  Honestly.  I...

GEIST:  Duke?

CARLSON:  Not Duke.  Wake Forest. 

GEIST:  Wake Forest probably won‘t this year.  Duke—Duke is actually a good call. 

CARLSON:  Thank you, Willie.

As we pointed out many times before on this program, no one does creepy quite like the Japanese.  Tonight‘s example is a robot nurse that researchers hope will help hospitals and nursing homes.  The robot is called Reman (ph).  It stands five feet tall, which is awfully big for a robot.  It can lift 26 pounds.  So if you weigh more than 26 pounds, sorry, can‘t help you. 

GEIST:  Twenty-six seems a little low if you‘re helping the elderly, doesn‘t it?

CARLSON:  Yes.

GEIST:  I do not want that thing manhandling my loved ones.  Get your mitts off my grandma.  You‘re going to scare these people to death.  Can you imagine if you‘re getting on in years and you see this giant robot lurking over you, reaching for you?

CARLSON:  But they love that in Japan.  That‘s what about Japan: they build robots for their own sake.  They make robots that actually make things more difficult.  Totally pointless.

GEIST:  They have dancing robots who are dancing for no reason. 

CARLSON:  Right.  And for whom? 

I think we all agree it‘s a good thing to have hookers roaming the streets, but is it a good thing to have hookers roaming the streets while armed?  Prostitutes in Daytona Beach, Florida, are now packing heat and joining the search for the person who‘s killed three women there recently. 

Police didn‘t ask for the hookers‘ help, but they‘re getting it, whether they like it or not.  One hooker said, quote, “We get him first, if we find him, he‘s going to be sorry.”

GEIST:  Let‘s be very clear here, Tucker.  These hookers are American heroes.  Like the Minutemen on the border, who have taken up arms for the land they love, these hookers are just trying to go out and do what the police couldn‘t do.  I say God bless the hookers.

CARLSON:  Minutemen on our borders?  I think you‘re selling them short.  What about the original Minutemen, the revolutionary Minutemen fighting for the freedom of the colonies?

GEIST:  Exactly.  The Founding Sisters.

CARLSON:  Right.

GEIST:  You know the cops are praying the hookers don‘t find him first. 

CARLSON:  Yes.  That would be embarrassing.  Willie Geist, thank you. 

GEIST:  All right, Tucker.

CARLSON:  That‘s it for us tonight.  Thank you for watching.  Up next, “COUNTDOWN” with Keith.  Have a great night. 

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

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