updated 6/30/2006 11:29:09 AM ET 2006-06-30T15:29:09

Guests: Nicolle Wallace, Kate O‘Beirne, Eugene Robinson, Michael Smerconish, Tom Oliphant, Charles Swift

CHRIS MATTHEWS, MSNBC HOST:  President Bush has broken the law.  That‘s the verdict of the Supreme Court.  Bush says he can try prisoners on Guantanamo without courts martial or Geneva Convention rules.  The court says he‘s wrong, that he‘s overreached his lawful powers as president. 

Let‘s play HARDBALL.

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

President Bush‘s wartime powers took a major hit today when the Supreme Court ruled he overstepped his authority in creating military tribunals for prisoners at Guantanamo Bay.  The court concluded by a 5-3 vote that the tribunals were illegal and violated the Geneva Conventions and U.S. military law. 

We‘ll hear from the president‘s communications director, Nicolle Wallace, in a couple of seconds. 

And later, the lawyer who won the case today, he‘s coming here. 

Tonight we also introduce also our “Hardbrawler” panel, a politically sharp quartet ready to rip into the headlines. 

But first, White House Communications Director Nicolle Wallace is leaving this week, but is with us now from the North Lawn of the White House. 

President Bush says that he can deal with prisoners in the war on terrorism the way he wants to as commander-in-chief.  The Supreme Court said today he‘s got to follow the law, he has got to follow the Geneva Conventions.  What‘s the reaction at the White House?

NICOLLE WALLACE, WHITE HOUSE COMMUNICATIONS DIRECTOR:  Well, the president isn‘t dealing with prisoners the way he wants to, Chris.  He‘s dealing with dangerous enemies in a way that will make sure that we, here in the United States of America, are safe and protected from them. 

I think the president has also made perfectly clear that his desire, his wish, is that we didn‘t need Guantanamo at all, but that his greater desire is that these murderers and these enemies of freedom and of America are not set free. 

Now, to speak to the decision you‘ll have to get some bigger brains than mine, but I can tell you what‘s happening here today is that the lawyers and the smart policy people are studying it very closing.  There‘s not a lot of hand ringing. 

There‘s a lot of close attention being paid to exactly what was written today.  It‘s a 73-page decision.  There‘s some pretty instructive parts in there, and I‘m sure you‘ll have a balanced approach in your coverage of it this hour but, you know, does this even talk about working with Congress. 

MATTHEWS:  Well, we‘re trying to because—well, let‘s just go with the president‘s language, the way he likes to describe this war.  He calls it a war, in all its aspects.  Not just in Iraq and not just in Afghanistan.  Wherever we come up against the terrorists, that is a war. 

The Supreme Court ruled today that it is a war, and you have to treat prisoners of war according to the Geneva Convention.  Isn‘t that a consistent doctrine, a consistent reading of the situation? 

WALLACE:  Well, sure, but Justice Stevens also wrote that what you

need to do in regard to the—the Hamdan case was an examination of how

we‘re going to bring justice to these criminals and the comment that he

made to folks that are focused on at the moment on the Hill—and I say

that based on the statements and rumblings coming from Capitol Hill today -

is this interest in having congressional authorization. 

So there is a lot of noise coming out of Capitol Hill, and again, I think it‘s important that as we dive into this decision and we all try to understand it—and you have an important role to play in helping the American people and your viewers understand it—not to try to punch headlines out of it. 

It‘s a 73-page opinion.  Even those that agreed in the majority disagreed with various pieces.  Those that disagreed agreed with some of the decisions and findings among those who wrote the majority opinions, so it warrants a lot of close attention.  And, again, you know, I think we need to look at the language that sought to have Congress to get more involved. 

MATTHEWS:  Let‘s talk about the other headline issue of the last week, that‘s the “New York Times” headline.  Is the White House, the president of the United States angry not just at the “New York Times”—and he‘s angry, he‘s manifestly angry.  So is Dick Cheney, V.P., and, of course, Tony Snow even got a bit angry the other day about this secretary of Treasury Snow, whose job it is to look into these bank records around the world. 

Why does the United States focus all of its heat on the “New York Times,” not on the “L.A. Times,” not on the pro-business “Wall Street Journal”? 

WALLACE:  Well, Chris, the sources and methods that we‘re using to track down terrorists by examining, you know—I think we all know—anyone that watches a good crime movie knows that you catch the bad guys by following the money. 

We should all be angry that one of our very valuable tools was broadcast to the terrorists.  We should all be angry.  My mom and dad are angry.  My sisters who are—you know, don‘t follow the—everyone should be angry.  We lost something. 

But I think that it‘s dangerous for all of us, people in your business and mine, to look at this as a black and white issue.  The “New York Times,” I‘m sure, cares about winning the war on terror and they care about a free press. 

In this case, they made a decision that placed their right to publish something—which is a right that we oftentimes celebrate—ahead of protecting this tool.  We vigorously disagree.  We desperately wish that they hadn‘t done so, because it took a tool away from us.  We‘re not angry that they ...

(CROSSTALK)

MATTHEWS:  Nicolle, I think you may well be right.  My instinct tells me you‘re right on the merits, but on the politics, why is the president going after just the “New York Times”?  It‘s the old trick, go after New York, go after big, ethnic New York, way up there in the Northeast that never votes Republican.  Blame everything on them, you know, it‘s New York.  Isn‘t that what the game here is being played? 

WALLACE:  Oh, Chris, we‘re well beyond tricks, and certainly, you know

MATTHEWS:  Well, why not the “L.A. Times?”  Why not the “Wall Street Journal?”  Why aren‘t you going after all three that ran this story within an hour of teach other?  Why are you just nailing ...

WALLACE:  Well, I think the “New York Times” ...

MATTHEWS:  ... it seems like the old Barry Goldwater trick of saying cut off the Eastern Seaboard, and then we‘ll have a better country.  It seems such a cheap, political move that part of it.  It does.

WALLACE:  Well, the original reporting—the original reporting came from the “New York Times” and I think they‘re quite proud of the reporting that the reporters do and I don‘t want to deprive them of their glory, but it also means that they also have to take the blame for revealing this tool to the terrorists, which is exactly what they did.  Certainly other ...

MATTHEWS:  I think you have a case there.  I just think that everybody has piled on politically.  The president is out there in Missouri the other night running a political campaign for a guy who is in trouble by several points, a senator in deep trouble, and he‘s using that opportunity to pound the table like Khrushchev, saying that this is evil and evil, and it‘s back East. 

It‘s those people back in the New York.  It‘s not us heartland folks out here in Missouri.  It just looks like that part of it is the political part, but you say it‘s not politics?  None of it‘s politics, right?

WALLACE:  Well it‘s not politics, but everyone should understand that what happened here was the “New York Times” certainly placed a higher premium on broadcasting a story and celebrating their right to a free press, which we celebrate and respect their right to do so.

But, you know, in doing so, they have to deal with the consequence, which was to reveal to the terrorists a tool that we were using to catch them and track them. 

MATTHEWS:  Well, let me ask you—I‘m going to ask you now to defend everybody on the right here.  We had Melanie Morgan on the other night, a very bright lady, who said that these guys, Bill Keller on down, deserved 20 years in prison for espionage.  Do you agree with that? 

WALLACE:  You know, no.  And I‘m not going to get into that and, again, I don‘t think it‘s black and white, and I don‘t think it‘s good for our country to make it black and white.  This is ...

MATTHEWS:  Well, U.S. Congressman Peter King came on the other night and he said that the only difference between Bill Keller, the executive editor of the “New York Times,” and Alger Hiss, a Soviet spy from the ‘30s and ‘40s right up until Yalta, was spying for the Soviets under Soviet discipline, and he said the only difference between Bill Keller and Alger Hiss was a matter of degree.  Do you buy that?   

WALLACE:  I‘m going to let everyone‘s statements speak for themselves.  But, you know what?  This shouldn‘t become a shouting match.  This should be a very seriously and calm and orderly discussion about a free press. 

MATTHEWS:  So it‘s possible that Bill Keller was thinking patriotically, he just had a different judgment than the president?  It‘s possible.

WALLACE:  Well, it‘s not possible that he placed as high of a premium as we do and as members of the Congress were are speaking out, as the Democrats that called him and urged him not to run that story, put on this tool.  And perhaps he didn‘t understand the value of the tool, but it‘s not debatable, that the “New York Times” valued their right to publish the story more than they valued or appreciate the power of the tool. 

Let me say one thing, though, about what the “New York Times” did.  They made a crucial mistake in describing our efforts as half-hearted.  We made a passionate, vigorous, sustained effort.  We had, you know, certainly other partners in contact with the “New York Times,” trying to help them understand how valuable this tool is. 

And there is no way the “New York Times,” unless they‘re talking to terrorists, could possibly say some of the things they said about terrorists already knowing about this tool.  How would they know?

MATTHEWS:  If New York is such an evil place, Nicolle, why are you moving up there? 

WALLACE:  Oh, all for love.  All for love.

MATTHEWS:  Your husband is there.

WALLACE:  My husband is there fighting the good fight at the United Nations. 

MATTHEWS:  It‘s great to have you.  Good luck in your new life up in New York. 

WALLACE:  Thank you.  Thanks, Chris.

MATTHEWS:  Nicolle Wallace, communications director for President Bush. 

Coming up, it‘s our special “Hardbrawl” political panel.  Catch this coming up, Kate O‘Beirne of the “National Review,” Eugene Robinson of the “Washington Post,” Philadelphia radio talk show Michael Smerconish and Air America radio contributor and former “Boston Globe” columnist, the honorable Thomas Oliphant.  They‘re all coming here. 

You‘re watching “Hardbrawl”—we‘re getting hotter here—on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Now to our panel of hard brawlers, with one lady exception:  Kate O‘Beirne is Washington editor of the “National Review” and a HARDBALL political analyst; Eugene Robinson is a columnist for the “Washington Post;” Michael Smerconish is a radio talk show host up in Philly; and Tom Oliphant is a best-selling author and a former columnist for the “Boston Globe”—lots of attribution, here—and a contributor to Air America Radio.

War trials and tribulations:  in a 5-3 vote today, the Supreme Court said that President Bush was wrong to order military war crimes trials for the prisoners at Guantanamo Bay.  It‘s a blow to the president.  Here‘s the president after the decision. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  One thing I‘m not going to do, though, is, I‘m not going to jeopardize the safety of the American people.  People have got to understand that.  I understand we‘re in a war on terror, that these people were picked up off of a battlefield.  And I will protect the people and at the same time conform with the findings of the Supreme Court. 

(END VIDEO CLIP)

MATTHEWS:  Is that consistent, Tom Oliphant, for the president to say, I know they‘re combatants from war, we‘re in a war on terrorism, but we‘re going to treat them in a way that they don‘t get Geneva Convention treatment and they don‘t get any rights. 

TOM OLIPHANT, POLITICAL REPORTER/BEST SELLING AUTHOR:  No, of course it‘s not.  The first question that‘s raised by this decision is one, not of ideology, but of ability to run the government correctly.  I mean, a lot of people, who have no ill feelings toward President Bush at all, have been warning for almost five years that he overstepped his authority in the way he handled all of this.  You could have seen this decision coming, you basically could have predicted it.  And it‘s so interesting, this afternoon, you figure they go to Plan B.  There is no Plan B. 

MATTHEWS:  What about getting Congress to fix it?  Anyway, I want to get back to Kate on this:  Is the president wrong on this?  Do you think the court was right, 5-3, or wrong? 

KATE O‘BEIRNE, NATIONAL REVIEW:  I agree with the critics of this decision.  What the court in effect has done is negotiate, find, a treaty between the United States and al Qaeda.  That‘s not the court‘s role.  Treaties are negotiated by the executive branch and approved by Congress.  We don‘t have a treaty with al Qaeda.  They do not have Geneva Convention protections, and yet the court, in effect, gave them to them.

The court did say you can hold an enemy combatant until the end of hostilities, and the court did allow that you could fashion some sort of military commission to try these enemy combatants that would meet constitutional muster.  But it is not the court‘s job to be negotiating treaties for the United States of America. 

MATTHEWS:  So in other words, this doesn‘t apply—you‘re saying the Geneva Conventions don‘t apply here.

O‘BEIRNE:  No, absolutely—by the terms of the Geneva Convention, they he don‘t apply.  The purpose of the Geneva Convention is to try to impose on war, on this violent undertaking, some civilized rules.  And both sides, where nations ascribe to the Geneva Convention—both sides‘ soldiers benefit from their protections.  Al Qaeda has no interest—first of all, it‘s not a nation—has no interest in Geneva Convention behavior, because it cramps their style.  They wear no uniforms, they make war on innocent civilians, they behead their prisoners—and we‘re going to extend Geneva Convention coverage to al Qaeda? 

They do have hearings in Guantanamo, and there‘s already interest on the part of Capitol Hill in fashioning how those hearings are conducted in order to satisfy these justices.

MATTHEWS:  But you‘re mocking that whole effort, right now.  You think that‘s a joke.

O‘BEIRNE:  The commander-in-chief powers are given to the president. 

He‘s waging a war.

MATTHEWS:  So you think this effort to modify whatever happens—

(CROSSTALK)

OLIPHANT:  It‘s not policeage (ph).

O‘BEIRNE:  I think the merits can be fixed, but the politics of this, it seems to me, I don‘t think the public wants the ACLU and judges running the war on terror.  Polls show, regardless of the president‘s popularity or problems on individual issues, the public trusts him on the war on terror, more than it does Congress or the courts or the media. 

EUGENE ROBINSON, WASHINGTON POST:  As I read the decision, what the court in fact found was provisions in the Geneva Conventions that covered the situation, that covered a war that wasn‘t nation to nation, that took place in a country that was a signatory, which Afghanistan, at one point, has been.

MATTHEWS:  Where are we on that?  Mike, your viewers—you listen to people all the time.  Are they going to be rabid in Philly tomorrow on this, saying that this is a stupid liberal decision? 

MICHAEL SMERCONISH, RADIO TALK SHOW HOST:  As the president would say, this is not something that‘s going to “resignate” in the heartland.  (LAUGHTER)  I‘m starting to come to the view that some people will not be satisfied until we Mirandize al Qaeda on the battlefield.  Honestly, this thing—and when you look at the opinion, it‘s a separation of powers issue.  I‘m watching all day long, as pundits are getting it wrong and thinking it‘s a referendum on Gitmo—it‘s not.  And it can be fixed by the Congress, and I hope they‘ll pay attention to a real issue like this, and not all these non-binding things (ph).

MATTHEWS:  What do we do—I‘m going to ask an open question.  what do we all do, as this—we‘ve got a bunch of people that are prisoners.  What do we end up doing with them, give them three years and kick them out the door?  Do we give them a sentence?  What do we do with them?

OLIPHANT:  It‘s basically in the decision.  First of all, I think my friends on the left, it would probably be a good idea if they recognize the validity of the two points we just heard.  They‘re quite valid and should be kept in the front of our minds.

But I think there‘s something you‘re forgetting, and that is that the public has an interest in this whole war on terror being well run, and it doesn‘t help to set up a procedure for handling 500 people—a lot of whom we know something about, many of whom we don‘t know beans about—that is legally suspect and not have any kind of backup ready.  And as a result, we‘re going to waste weeks, months—it could even be years—because for five years, the president made an assertion about his powers, that was at best questionable, and we now know today, wrong. 

O‘BEIRNE:  We know the court found it wrong. 

OLIPHANT:  That‘s sort of the last word. 

O‘BEIRNE:  Five out of the nine of them did. 

OLIPHANT:  This has been coming for five years.  Guantanamo was created almost immediately after we went into Afghanistan.  It is—whether you agree with it or not, it‘s a fact that it has created huge diplomatic problems for the United States all over the world. 

O‘BEIRNE:  But Tom, the president‘s critics have been unrelenting, and many times exaggerating what‘s happening at Guantanamo.  Need I remind you about (INAUDIBLE).

(CROSSTALK)

OLIPHANT:  I agree with you.  I agree with you on that.  I understand that.

O‘BEIRNE:  Very few people understand that every single detainee in Guantanamo had a hearing. 

MATTHEWS:  I think it‘s good news coming out in the Khartoum newspapers tomorrow morning, in the Rangoon newspapers tomorrow morning, they‘re going to say, “U.S. court system says the president can‘t do certain things to prisoners.  He‘s got to give them a right to an attorney or something.”  That‘s going to make our system look good, and if this battle is about culture and who‘s the good guy in the world and whether the West is acceptable in the East, not hated to the point of death, maybe this will help.  It‘s an irony—ironies happen.

We have to go on,here, Gene.  You can start this first one.  Bush brings on the brawl last week:  Republicans kicked off a campaign to paint Democrats as spineless cut-and-runners on the war in Iraq.  Then came a full frontal assault on the “New York Times” for running a story about how the government tracks terrorist money overseas.  Now President Bush enters the coliseum.  Here he is at a campaign rally last night in St. Louis.

(BEGIN VIDEO CLIP)

BUSH:  There‘s a group in the opposition party who are willing to retreat before the mission is done.  They‘re willing to wave the white flag of surrender, and if they succeed, the United States will be worse off. 

(END VIDEO CLIP)

MATTHEWS:  Fair charge, Eugene?

ROBINSON:  Well, at least now we know he can‘t pick Bill Keller and sent him to Guantanamo and keep him there for four years, which is what he seems to want to do.

But, you know, it‘s interesting the president has come out on the offensive like this.  I think politically, he does believe this is a winning issue for him.

MATTHEWS:  The “New York Times?”

ROBINSON:  Yes, the “New York Times.”

MATTHEWS:  He thinks that they look traitorous, treasonous, like spies and the more he whacks them, the better it helps his party this fall.  Michael is that true?

SMERCONISH:  It is true.  On the merits, he‘s correct and the hypocrisy on the part of “The Times” is stunning.  The folks at “The Times” have been praying for Karl Rove to do a perp walk for what, for being a leaker and they themselves for a second time within a period of nine months are guilty of this leak.  There‘s hypocrisy on the right as well.  I‘m glad you mentioned Chris, because I‘ve been saying it all week long in Philly, shame on “The Wall Street Journal” and shame on “The L.A. Times” as well and to a lesser extent, but also important, shame on “The Washington Post,” because all four, not just “The Times.”

MATTHEWS:  So why did the president say, why is he sniping at “The New York Times?”  Is it the old New York is a bad guy thing?   

SMERCONISH:  It‘s not ethnicity or of what you were talking about. 

O‘BEIRNE:  Chris, it‘s not Pete King of Nassau County.  

MATTHEWS:  That‘s a good old Irish attitude toward “The New York Times.”

O‘BEIRNE:  It‘s not that at all.  If anyone is more unpopular than politicians, frankly, it‘s the media and you talk to members of Congress, they are hearing from constituents who are really mad about this. 

MATTHEWS:  At “The Times?”

O‘BEIRNE:  Yes.  And the reason why “The New York Times” is singled out is because they‘re recidivist.  They also do the NSA wire tap story.

MATTHEWS:  But, the public wasn‘t that angry, they disagree with “The Times,” but there wasn‘t this fire and attitude towards “The Times” over the NSA thing. 

ROBINSON:  This is a closer call, isn‘t it.  The NSA wiretapping was something that affected all of us, and I was very exorcised about it.  This, bank transactions, I mean, a Mexican billionaire is trying to hide money from the Mexican tax collectors in a Swiss bank and that somehow gets spotted. 

MATTHEWS:  Who really cares, right?  I mean, I don‘t think we care that much as Americans, do we?  Michael, you know how to phrase these issues.  Do we really care about our civil liberties when it comes to electronic mail transfers between Cairo and somewhere else? 

SMERCONISH:  I think most people look at these issues and say keep your nose clean and you really don‘t have to be concerned with this. 

OLIPHANT:  It doesn‘t drive me nuts at all, because I recognize the validity of the argument.  In the middle of many of these fights, beginning with the Pentagon papers.  But what I think you‘re forgetting is that there is also a very deep seated sense of privacy where financial records are concerned and if you want to get on the wrong side of the American people, you start telling them how you‘re poking around or you have the ability to poke around in their financial transactions. 

I‘m not saying the program is right or wrong.  I‘m saying it‘s information the public has a right to, and if you, as a news guy, I‘ve always thought that if you don‘t want to read about something in the paper, don‘t do it. 

MATTHEWS:  OK.  We‘ll be right back with more of our HARDBALL panel, Kate O‘Beirne, Michael Smerconish, Thomas Oliphant, and Eugene Robinson.  You‘re watching HARDBALL right now on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back here with our HARDBALL panel.  Kate O‘Beirne, Eugene Robinson, Michael Smerconish and Tom Oliphant.  Next up, rough housing the press.  Republican House leaders are working up a bill to blast “The New York Times” for its story on the government‘s tracking of terrorists‘ money.  Are Republicans trying to score points by nailing a long-time foe?  Will it work?  Here‘s the fight from today. 

(BEGIN VIDEO CLIP)

REP. LOUISE SLAUGHTER (D), NEW YORK:  The article that started this all could not have been written without their active help.  What “The New York Times” did as well as “The Wall Street Journal,” “The Los Angeles Times,” The Washington Post” and newspapers throughout the country through news services was to publish a story which had in effect already been published.  1,000 times over by the White House itself and had even been on the Internet. 

REP. MICHAEL OXLEY ®, OHIO:  He didn‘t say how it worked on a day-to-day basis, and now we have it spread all over the news media about how this program works.  What is the average terrorist going to think?  He‘s going to find a different way to of move his money around, that‘s what he‘s going to do.  He‘s going to change his behavior. 

MATTHEWS:  Eugene, who is right here on the merits? 

ROBINSON:  I think this is a close call. 

MATTHEWS:  Would you have made this call? 

ROBINSON:  It would have been hard.  I mean, I would have, my inclination would have been, maybe there‘s something to the national security argument, however, I might also have been swayed by the fact that this administration has so consistently overreached its powers, so consistently insisted on doing everything in secret, often for no good reason, that you, that has to weigh against the ... 

MATTHEWS:  You were thinking about the fact that Dick Cheney defended his right to a private session with the oil industry leaders in getting advice for the oil policies of this administration? 

ROBINSON:  Where do you want to start.  You know, the secret prisons in CIA prisons of Europe, it‘s the whole way they‘ve waged this war.  

MATTHEWS:  You wouldn‘t have ran this story, right, Kate? 

O‘BEIRNE:  No I would not have. 

MATTHEWS:  Make a decision, Gene.  You don‘t want to start a fight with “The Times.”  I‘ll say it, I wouldn‘t have run it. 

SMERCONISH:  I wouldn‘t have run it.  It‘s hard for me to articulate the standard.  It‘s sort of like pornography, I know it when I see it, it‘s a balancing of a public need to know against a need of al Qaeda not to know, and in all draws, and I think this is a close call, don‘t reveal. 

MATTHEWS:  When in doubt, keep it out? 

SMERCONISH:  Absolutely. 

OLIPHANT:  Minority view, piece of cake to run it.  There‘s a database containing millions of financial transactions that the government is mining, in order to look for terrorism.  The basic information has been public for a long time.  The classification stamp should never deter a journalist and if somebody wants to come after you, we‘ll see you in court.  You do not go around playing footsie with the government.  That‘s the people with the power.  We exist to check those people. 

O‘BEIRNE:  First all, this was not known.  “The New York Times” itself said we reported on it for two and a half months, they ran it on the front page above the fold.  This is not a 4-year-old story that gets that kind of coverage.  Secondly, in order to defend “The New York Times,” you have to argue, it seems to me, the government can keep no secrets when we are involved if an international war on terrorism.  On this one, the White House had people looking over their shoulders, obviously on a bipartisan basis, people contacted “The New York Times,” Congress was read into it and talk about being unaccountable.  “The New York Times” is unaccountable.  They unilaterally decide to do something to destroy a frame ...

MATTHEWS:  In the end, don‘t they have to decide? 

O‘BEIRNE:  What they do is hide behind the public‘s right to know.  They do it supposedly on behalf of the public.  But I think the public puts ahead of their right to know, the right to be kept safe from the kind lethal threat we face. 

OLIPHANT:  Just for context though.  Newspapers decide whether or not to publish information about national security all the time.  And sometimes it doesn‘t get published.  In the case of “The Washington Post” story about the CIA prisons in Europe.  “The Post” was asked not to print the names of the countries where the prisons were located and “The Post,” the editor of “The Post,” decided no, you know what?  We will not print that.  He was persuaded on the national security argument but not on the larger story.  Those are the kinds of decisions you make all the time. 

MATTHEWS:  Would you still publish a story like this, Tom ...

OLIPHANT:  Without reservation.

MATTHEWS:  ...if you knew that it would prevent us from picking up some bad guys overseas? 

OLIPHANT:  Well, if I knew that, that would be an argument that would weigh very heavily on me.  Of course it would, but as a matter of fact, the case that the administration was trying to make to the “New York Times” did not contain that assertion, and that is one reason the story was published without a great deal of soul searching. 

MATTHEWS:  The follow up letter by Jack Snow, the outgoing—the lame duck secretary of Treasury was that they still, although they now know the bad guys—I‘m using that as parlance—the terrorists are shipping their money by hand and carriers, they‘re not relying on electronic transfers ...

(CROSSTALK)

MATTHEWS:  ...but they still are doing some it and he says that some of it is worth the effort and it shouldn‘t have been thrown away. 

OLIPHANT:  It hasn‘t been thrown away or at least the public record is missing any definitive information that it has been thrown away. 

O‘BEIRNE:  Oh, complaints have been filed with every country cooperating with us.  The program has been crippled and the program has identified terrorists, so they were really unaware of it. 

OLIPHANT:  It is operating right now.  It is operating right now and it will operate tomorrow.

MATTHEWS:  All right, we‘ll be coming right back with “Hardbrawl,” the panel of Kate O‘Beirne, Eugene Robinson, Michael Smerconish and Tom Oliphant.

And up next, we‘ll talk with the lawyer for the Guantanamo prisoner who‘s case is at the center of the Supreme Court‘s decision today.  Did President Bush overstep his authority in handling detainees?  The court said so.  Let‘s listen to the defendant‘s lawyer. 

And by the way, don‘t miss HARDBALL on Friday when the “HARDBALL Hotshots,” their somewhat superior to the brawlers, I guess, will be here.  You‘re watching “Hardbrawl” on MSNBC. 

(COMMERCIAL BREAK)

(STOCK MARKET REPORT)

MATTHEWS:  Welcome back to HARDBALL.

Today the United States Supreme Court pushed back hard against President Bush and ruled that his policies regarding Guantanamo Bay prisoners went against both U.S. and international law. 

Lieutenant Commander Charles Swift, the Judge Advocate General‘s Corps JAG, was appointed by the military to represent the Gitmo detainee in the case of Hamdan versus Rumsfeld.  He had a big win today and he joins us now. 

Mr. Swift, let me ask you, what was at stake here in this case decided

by the court? 

LT. CMDR. CHARLES SWIFT, SALIM AHMED HAMDAN‘S LAWYER:  At stake was the rule of law.  The president had staked out a position that was contrary both to international law and to our domestic statutes in the Uniform Code of Military Justice.  What the court did was say that even the president has to follow the law.  And that if we‘re going to try people, we‘re going to do it under the law, not under an ad hoc system. 

MATTHEWS:  Does this mean now that our prisoners at Gitmo are going to have lawyers and rules of evidence that they can use to defend themselves? 

SWIFT:  Well, in a manner of speaking, yes, and one would hope so, because what the court was addressing is a trial wherein you could actually be executed.  One would hope in an American system that you have lawyers, that you have rules of evidence. 

In a trial as politically charged as these, that‘s what the rules of evidence were developed for.  What it says is that these individuals be able to be present during their trials and confront the evidence against them. 

MATTHEWS:  What about the charge made recently, just a couple minutes ago by Kate O‘Beirne of the “National Review,” that people who fight us who are not in uniform, who do not represent countries who are party to the Geneva Convention shouldn‘t be free riders?  They shouldn‘t get Geneva Convention treatment.  They should be treated like thugs. 

SWIFT:  Well, you know, if you‘re looking at it from that way, we have a lot of criminals here in this country.  And to prejudge anyone that we capture outside the country as a thug, why are we having a trial in the first place?  We‘ve already decided they were guilty. 

What the Supreme Court said is you have the trial first, you use the procedures that are set up under international law, and then you decide whether they‘re a thug.  You don‘t make the thug determination going in.

MATTHEWS:  But what happens now if we‘ve got a real—let‘s assume—not your client who is a driver for bin Laden.  Let‘s talk about we‘ve got a Luca Bratsi down there somewhere in Guantanamo, a real bad guy who systematically and cruelly killed a bunch of Americans. 

If that guy says now, I want all the rules of evidence applied, I want to know about all this classified information the government has at hand, I want it in discovery, I want to act like I have F. Lee Bailey down here with me, what happens to that prosecution?  This guy is never going to go to face any punishment at all, is he? 

SWIFT:  Well, you know, you could have said all those things about

Moussaoui.  Moussaoui was part of a plot, that if not on 9/11, somewhere

thereafter would killed maybe thousands.  He wanted access to classified

information.  I think everybody agrees he‘s a real bad guy, and he‘s in a -

in the supermax penitentiary.  We convicted him. 

The perverse idea here is that if you can make it to the United States, if you can get that far into an attack, then you get all the rights.  It seems, you know, the most dangerous people would get all the rights and the least dangerous people who are basically like my client, hiding from bombs in Afghanistan, get no rights.  That doesn‘t make any sense at all.  And that‘s what the court said.

MATTHEWS:  I only have a minute here, sir, and I appreciate your position, and I‘m being tough with you because there is another side to this argument.  Let me ask you, do you believe that people who fight us as terrorists deserve Geneva Convention treatment?

SWIFT:  It‘s not whether they deserve it or not.  It‘s how we conduct ourselves.  It has to do where if we say that our opponent can cause us not to follow the rules anymore, then we‘ve lost who we are.  We‘re the good guys.  We‘re the guys who follow the rule and the people we fight are the bad guys and we show that every day when we follow the rules, regardless of what they do.  It‘s what sets us apart.  It‘s what makes us great and in my mind, it‘s what makes us undefeatable, ultimately. 

MATTHEWS:  Well, Commander Swift, I‘m sure you‘re going to have a place in history and you deserve it.  What a great job you did, I‘ve been tough on you, but somebody has to defend the law and you‘ve done it.  Thank you very much Lieutenant Charles Swift of the U.S. Navy. 

Up next, more with our “Hardbrawl” panel of Kate O‘Beirne, Eugene Robinson, Michael Smerconish and Tom Oliphant. 

Plus, round two of my bout with Steven Colbert, this time it‘s a food fight.  This is HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with our “Hardbrawl” panel.  Kate O‘Beirne, she‘s the Washington editor of “The National Review” and a HARDBALL political analyst, Eugene Robinson is a columnist for “The Washington Post,” Michael Smerconish is a radio talk show host from Philadelphia, WPHT up there in Philly, and Tom Oliphant is an “Air America” radio contributor and former “Boston Globe” columnist. 

Iraq, yesterday, today, and tomorrow, with almost a dozen senators now eying the White House in 2008, the debate over Iraq continues to trump everything else politically.  Except for Russ Feingold, all of the senators running for president voted to give the president the authority to wage war back in 2002.  Just last week, John Kerry and Russ Feingold pushed a plan to bring the troops home in a year.  The other Democratic contenders all endorse bringing home the troops, but without a deadline.  Republican hopefuls said no to both.  Whose position is best for 2008, Oliphant, Thomas Oliphant, you‘re here, a student of many campaigns past.  Is this about a Democrat trying to get to the left of the war and winning that battle first to get the nomination? 

OLIPHANT:  Mostly.  And it is one of those tussles where the winner is the loser.  It‘s not like 1972, when we were babies, when Mcgovern came out of nowhere and bit Musky in the rear end.  It won‘t be, the one prediction I can make right now that is absolutely safe is that in Iowa, in early 2008, it‘s not going to be one of those I came out against the Iraq war three weeks before you did, so yes, that proves you‘re a war monger or something.  Actually, the real benefit will go to the Democrat, in the contest for the nomination, who can turn the page.  How do we get out of this mess, if we‘re still in it. 

ROBINSON:  Right. 

OLIPHANT:  Everybody who is arguing about the past will either lose in the Democratic primaries or lose to a Republican. 

MATTHEWS:  OK, what‘s the battle on the Republican side, vis-a-vis the war, do you want to be further out than the president on the war, like John McCain is or more moderate, right where he is? 

O‘BEIRNE:  I think John McCain really benefits from where he is.  He‘s such a hawk on Iraq, he‘s so resolute, he matches the president‘s resolution.  He also, I think, does the most effective job of reminding people of why it‘s so crucial we‘re there, talking about the stakes, you know, we dare not lose, he very effectively says the difference between Iraq and Vietnam is when we cut out of Vietnam, prematurely, they didn‘t follow us.  He benefits of course because of his particular challenge in the Republican primaries, which is to appeal to conservatives who have reservations with John McCain over other issues, and I think his position on Iraq and national security really helps him there. 

ROBINSON:  I think it‘s too soon to know, what‘s politically advantageous at this point. 

MATTHEWS:  You‘re a hawk on this one. 

ROBINSON:  No, I never say that on your show, Chris. 

MATTHEWS:  Judged by today‘s standards, do you want to be a Democrat, who‘s a little more hawkish, for example, like Hillary, she started doing the pyramid plan in the middle or a leftie? 

ROBINSON:  I think you kind of want to fudge a bit.  Hillary, you know, she‘s kind of got a problem.  I think she may have gone a little too far to the hawkish side.  

MATTHEWS:  She‘s changing clothes on this thing so fast, I mean, she benefits from being a known liberal by every conservative in the country.  Now the liberals look at her not as a liberal anymore, they see her as a hawk. 

O‘BEIRNE:  She benefited from being poorly received in front of that left wing group.  That really benefited her.  It helped her in general. 

ROBINSON:  I think it did help her in general, but it depends on what Iraq looks like in a couple of years and if it is a huge mess and no better and getting worse, then it‘s a problem. 

SMERCONISH:  I think it matters less, Gene, what your position is, than do you have a position.  I really believe that the president, to the extent that there‘s any rebound in his numbers, and I believe there is one, is that even when you disagree with him, even when you dislike him, he stands for something.  He‘s not a blow dry politician with his finger to the wind.  He‘s a guy who is resolute in his position.  Look what Hillary did with this flag burning issue this week. 

MATTHEWS:  What did she do? 

SMERCONISH:  She voted against the amendment, you know, she voted largely with the Republicans and at the same time said that she personally wants to protect the flag against desecration. 

MATTHEWS:  What‘s the bottom line? 

SMERCONISH:  The bottom line is she represents nothing, she has her finger to the wind and I don‘t think that 2006 or 2008 are years when you want to be flip-flopping. 

MATTHEWS:  Tom, do you agree with that? 

OLIPHANT:  No, I don‘t, and I think you make a pretty interesting point.  As I look ...

MATTHEWS:  Wait a minute, you don‘t agree with a guy but he had an interesting point, which is it? 

OLIPHANT:  Well, what I‘m trying to get at is I think the people we know who are fooling around with the presidency right now, have left a door open that somebody might want to think about going through.

MATTHEWS:  You mean come in with gusto and truth. 

OLIPHANT:  Absolutely.  And part of it involves legitimacy, authenticity, but it also involves not leaving, not saying you lied about the weapons of mass destruction, not pulling out or anything like that, but the phrase I‘ve come up with is getting it right.  And involving other nations, having new leadership. 

MATTHEWS:  Where did you get that phrase from?

OLIPHANT:  Which?

MATTHEWS:  Getting it right?

OLIPHANT:  Obama.

MATTHEWS:  He uses it?

OLIPHANT:  Yes, and I think the field right now is very vulnerable to a fresh wind.  You know, George Bush has ended the issue of qualification. 

MATTHEWS:  Let me ask you a blank question, an Obama question.  Can an African-American win the Democratic nomination for presidency? 

OLIPHANT:  Yes, absolutely. 

MATTHEWS:  Can an African-American, brand X, we don‘t even know the guy, he can win the whole presidential election? 

OLIPHANT:  I have seen enough.  This guy is the real thing. 

SMERCONISH:  No, I mean, Barack Obama to me is a black John Edwards.  I mean, he is a handsome guy, he is a likable guy.  Everybody who meets him seems to be influenced by him.  But, his legislative record, it‘s nil. 

OLIPHANT:  That‘s the key. 

MATTHEWS:  Everybody is drinking the Kool-Aid on Obama around here, everybody is. 

ROBINSON:  I think he‘s incredibly impressive, but I would ...

MATTHEWS:  And a good speech. 

ROBINSON:  That‘s the question.  I would be surprised ...

OLIPHANT:  But you know, he‘s close to what I‘m talking about on Iraq and if he starts talking that way in more detail, watch out. 

ROBINSON:  Stranger things have happened, so we‘ll just have to watch. 

MATTHEWS:  As Bill Clinton said recently, in a group I was in, you never know when a barrier is going to be broken until it‘s broken.  That‘s what‘s great about this country.  We‘ll be right back with our “Hard Brawl” panel, only on MSNBC.  Am I scaring you enough? 

(COMMERCIAL BREAK)

MATTHEWS:  We are back for the last wild time with the panel with the “Hard Brawl” panel, Kate O‘Beirne, Eugene Robinson, Michael Smerconish, and Tom Oliphant. 

Before we go tonight, we‘re going to do this thing, we‘re going to have a conversation in a minute, but just an update on my appearance on the “Colbert Report” courtesy of Mr. Colbert himself. 

(BEGIN VIDEOTAPE)

STEPHEN COLBERT, “THE COLBERT REPORT”:  Right off the top here, I have to address something about last night‘s show.  My guest was HARDBALL‘s Chris Matthews, and I gave him a little taste of my HARD BALLS.  Take a look. 

(BEGIN VIDEO CLIP)

Let me ask you something, you worked for Tip O‘Neil? 

MATTHEWS:  Yes, the whole time Reagan was president.

COLBERT:  Between the two of you guys, you and Tip O‘Neil sat down at table, who could eat more potatoes? 

MATTHEWS:  That‘s an ethnic slur. 

(END VIDEO CLIP)

COLBERT:  No, it was not an ethnic slur.  I was just pointing out a fact.  Irish people love potatoes.  And despite his protestations, last night after our taping, a “Colbert Report” operative captured this actual undoctored photo of Mr. Mathews enjoying his post show meal.  Po Ta Toes, Taters. 

Chris, we caught you starch-handed.  Jimmy, give me a close-up of those Idaho‘s.  There it is.  The smoking side dish.  Bravo nation, that‘s what this show is all about, holding our public figures accountable, well I am sending this “Colbert Report” t-shirt out to Charles Rosen of Manhattan, the hero who snapped that picture.  And I will send a shirt to anybody who sends me a photo of Chris Matthews eating potatoes.  No photo shop.  He has really got to be huffing down those spuds.  I have a guess that I will get a lot of them.  For the records, Mr. Mathews, it was a statement of fact and not an ethnic slur.  I did not say Irish are drunks.  I didn‘t say they fight at every opportunity.  Though maybe I should have. 

(END VIDEOTAPE)

MATTHEWS:  He is a very clever guy.  Well we‘re sitting in honor of this.  We‘re all eating our spuds here.  French fries from across the street.  Here is a photo to take, you can get me right now and make thousands of dollars on this.  Let me ask you about a big problem here in the country, which is the question of politics, while we‘re eating our French Fries, the president of the United States ...

O‘BEIRNE:  I used to call them chips. 

MATTHEWS:  The president of the United States benefited enormously coming in to office with a really nice personality, people thought of him as a regular guy, he beat Al Gore, who seemed a bit of a stiff, but now we are coming down to the reality of a midterm election where do Republicans want to be seen with George Bush, the leader of an unpopular war? 

O‘BEIRNE:  Some do and some don‘t.  In some states it‘s a problem.  You know, in Pennsylvania, he‘s less popular in Pennsylvania than his national numbers, although it should be noted his numbers are up over the past months, he‘s broke 40. 

MATTHEWS:  Well, he‘s 39 in Missouri, where he was last night.  He‘s 40 in Virginia. 

O‘BEIRNE:  It depends on whether or not the president understands that and helps every member of congress, and does whichever helps.  I‘ll come or I won‘t. 

MATTHEWS:  So you can be a cafeteria Republican now? 

O‘BEIRNE:  Absolutely. 

MATTHEWS:  Michael, tell me about Philly back home?  Is he the kind of guy you want to bring in if your Rick Santorum to campaign for you?

SMERCONISH:  Sure, but you take him to Lancaster County, you don‘t take him to Philadelphia.  You take him into a part of the state where he will be well received.  There is something remarkable going on. 

MATTHEWS:  They‘ve got cameras over there.  They are going to see him in Philly over in Lancaster County, aren‘t they?

SMERCONISH:  Well, there is something remarkable going on, and that is that the war is unpopular, if you believe the polls, and I largely do, but the Republican party is staking out its territory.  I think flag burning is a waste of time, I thought the gay rights thing was a waste of time, but there are plenty of chest thumping issues being created, and there are a lot of those kind of issues.

MATTHEWS:  But, there are real red blooded right wing or conservative issues like guns, if Democrats really did start messing around with second amendment rights, that would drive out the vote in the middle of the country.  But these symbolic things, do they really work? 

OLIPHANT:  No, let‘s get down to brass tacks for a second, with an internal from the most recent Gallop Poll, where the question is, if somebody is going on after Bush, does that make you more likely to be for him, and vice versa?  The spread currently is about 40 more-likely to 20, two to one.  When you get a spread like that in this game, like the Republicans did in 1994, the consultants start producing the morphine ads. 

MATTHEWS:  In other words, they start to make the candidate you are looking at look like the president? 

OLIPHANT:  That‘s right.  As long as there‘s anything approaching a spread like that, then that means the identification with Bush is a negative, just as a matter of pure politics. 

MATTHEWS:  OK.  Wherever we see the president this fall, that‘s where he‘s doing well.  Right?

OLIPHANT:  Right.

MATTHEWS:  Thank you.  I love that quick shorthand.  Thank you Kate O‘Beirne.  Thank you Eugene Robinson.  Thank you Michael Smerconish and Tom Oliphant.  Play “Hard Brawl” with us again Friday night, when our guests will include, you guessed it, the HARDBALL hotshots.  Right now it‘s time for “THE ABRAMS REPORT.”

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

END   

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

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