updated 5/15/2009 2:44:35 PM ET 2009-05-15T18:44:35

Guest: Ron Christie, Steve McMahon, Frank Gaffney, Bob Baer, Robert Baer,

Peter Sprigg, Joe Solmonese, Chrystia Freeland, Jonathan Martin

DAVID SHUSTER, GUEST HOST:  Dick Cheney does it again, frustrating Republicans and thrilling Democrats.  Just whose side is he on?

Let‘s play HARDBALL.

Good evening, everybody.  I‘m David Shuster, in for Chris Matthews, who‘s attending his son‘s college graduation.  Chris will be back tomorrow.  Leading off tonight: Dick Cheney unleashed.  Why does Dick Cheney keep on talking?  The most secretive of vice presidents has become the most talkative of ex-vice presidents.  Is it because no one else will defend the Bush administration‘s harsh interrogation tactics, or torture?  Is it because he wants to influence the debate, in case we get attacked again?  Or is it, as Rush Limbaugh suggested, merely because he loves his country?

Cheney was on Fox News moments ago.

(BEGIN VIDEO CLIP)

RICHARD CHENEY, FORMER VICE PRESIDENT OF THE UNITED STATES:  I think that we are stripping ourselves of some of the capabilities that we used in order to block, if you will, or disrupt activities by al Qaeda that would have led to additional attacks.  I think that‘s an important debate to have.  I don‘t think we should just roll over when the new administration says—accuses us of committing torture, which we did not, or somehow violating the law, which we did not.  I think you need to stand up and respond to that, and that‘s what I‘ve done.

(END VIDEO CLIP)

SHUSTER:  Cheney‘s unapologetic defense of waterboarding has us asking these questions.  If torture works, is it morally acceptable to not torture someone, if doing so could save lives?  If torture doesn‘t work, why do it at all?  Former CIA officer Bob Baer, who‘s experienced torture firsthand, and former assistant defense secretary Frank Gaffney will be here to debate this hot one.

Plus, it‘s not every day here at HARDBALL that we get to do a story involving beauty queens and topless photos, but when Miss California, Carrie Prejean, was allowed to keep her crown today, it got us thinking about how she has highlighted and accelerated the debate over gay marriage.  We‘ll get into that later in the show.

And as expected, Florida governor Charlie Crist announced today he‘s running for the Senate.  Mainstream Republicans are rallying around him to make sure he will not be undone by Republican conservatives.  Will that work?  We‘ll have that and more in the “Politics Fix.”

And finally, remember President Obama‘s crack at the White House correspondents dinner about House minority leader John Boehner‘s perma-tan?

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  In the next 100, days our bipartisan outreach will be so successful that even John Boehner will consider becoming a Democrat.  After all, we have a lot in common.  He is a person of color...

(LAUGHTER)

OBAMA:  ... although not a color that appears in the natural world.

(END VIDEO CLIP)

SHUSTER:  Well, Boehner‘s spokesperson shot back, and we‘ll have that in the HARDBALL “Sideshow.”

But first we begin with Dick Cheney and his latest interview just moments ago.  Steve McMahon is a Democratic strategist and Ron Christie was an aide to the former vice president.  Welcome to you both.

Dick Cheney is out there again.  Here‘s how he justifies continuing to give these interviews and be in the public spotlight.  Here he is from Fox News this afternoon.  Watch.

(BEGIN VIDEO CLIP)

CHENEY:  I think the proposition that a new administration can come in, and in effect, launch an attack on their predecessor because they disagreed with the legal advice that was given by the Justice Department or because they find that they don‘t like the policies that were pursued by the prior administration—it‘s one thing to come in and change the policy, it‘s an entirely different proposition to come in and say that you‘re somehow going to go after the lawyers in the Justice Department or the agents who carried out that policy.  I just—I think that‘s outrageous, and that‘s why I‘ve spoken out.

(END VIDEO CLIP)

SHUSTER:  Steve McMahon, the Justice Department and the administration have not said they‘re going to go after anybody yet.  They said it‘s up to the Justice Department.  But why not?  Why not speak out, as Dick Cheney is doing, if he does feel that there‘s something outrageous about all this?

STEVE MCMAHON, DEMOCRATIC STRATEGIST:  Well, he‘s perfectly entitled to speak out.  In fact, as a Democrat, I hope the Republicans give him a microphone every single week and get him out there defending torture because that‘s what we‘re talking about here.  We‘re talking about torture.  It‘s very clearly outlined in the treaties that we signed.  It‘s very clearly outlawed in the law that was passed in 2007 or 2006, where waterboarding was specifically mentioned and made illegal.

And yet Dick Cheney continues to defend it and insists that it‘s legal simply because some low-level Justice Department lawyer was told to write a memo, apparently, that justifies it.  And you know, it‘s not just Barack Obama who says it‘s torture and it‘s wrong and we shouldn‘t be doing it, John McCain says the same thing and said it during the campaign.

So it‘s really Dick Cheney against the entire world, which is why it‘s Dick Cheney standing out there by himself, defending a policy and a practice that, frankly, is reprehensible.

SHUSTER:  Ron, are you, as a Republican, pleased to see Dick Cheney out there giving these constant interviews and defending torture?

RON CHRISTIE, FORMER CHENEY AIDE:  I‘m very pleased that my former boss, the vice president of the United States, is out there defending the United States and what our men and women in uniform and the people in the CIA have done to keep us safe, David.

This country does not torture.  The vice president said we don‘t torture.  Steve knows far better than to suggest that Dick Cheney is out in support of torture.  What the vice president is in favor of is making sure that those brave men and women who had the opportunity to used enhanced interrogation techniques...

MCMAHON:  Torture.

CHRISTIE:  ... as General Hayden said back in 2006, saved Americans from catastrophic attack.  I mean, it‘s one thing to have selective memory and selective outrage to go back in the past and say what we‘ve done is wrong.  I want to have a full airing of the facts, David.  There are...

SHUSTER:  But Ron...

(CROSSTALK)

SHUSTER:  ... it‘s another thing to give complete credibility—it‘s another thing to give complete...

CHRISTIE:  David...

(CROSSTALK)

SHUSTER:  I mean, whether he‘s accurate or not, the fact of the matter is, his approval rating is at 19 percent.  How can that possibly help Republicans, from a political standpoint, to have Vice President Cheney out there essentially being the spokesman for the Republican position on this?

CHRISTIE:  The vice president‘s not out there trying to bolster his approval ratings.  What the vice president‘s out there doing is making sure that we have a full airing of the facts.

What I was saying a moment ago, David, is that the vice president has said that there are two memorandums that are in the possession of the National Archives that specifically detail how thousands of American lives have been saved against attack.  He‘s gone to the archives.  He‘s asked that they be released.  Why?  Because people in the administration are selectively releasing memorandum.  They‘re selectively releasing photographs that are going to come out.  But they‘re not giving a full portrayal of what our people have done to keep this country safe.  That‘s why it‘s important.

There are many in the media who want to make this a game about approval ratings or about Dick Cheney being the spokesman.  The vice president is a spokesman for those who have kept us safe from attack, and I think that‘s a very commendable action that he‘s done.

MCMAHON:  Listen, I—look, Ron is a great advocate and great defender of his former boss, and I understand why he‘s defending him so aggressively.  But it‘s interesting and ironic to me that the administration that was the kings—they were the king and queens of selectively leaking things and putting things out there that supported their side of the story—I frankly agree with Ron that this administration has nothing to hide, that there should be transparency, that these memos should be released, but that‘s up to the CIA, ultimately.  And for Dick Cheney to suggest, as they did during the McCarthy hearings, that, There‘s a memo in my pocket that proves my case, is simply ludicrous.

SHUSTER:  As far as...

MCMAHON:  Torture is illegal...

CHRISTIE:  Steve, with all due respect...

MCMAHON:  ... it‘s wrong, and it‘s something that people...

CHRISTIE:  Steve...

MCMAHON:  ... were prosecuted for, Ron, after World War II.  And they were put to death for it because it was illegal and wrong during World War II.

CHRISTIE:  McCarthyism—Steve, this is absolutely ridiculous.  I agree with you, as I said, that these memos should be released.  And to suggest somehow that he is hiding it—don‘t take the vice president‘s word, take General Hayden, who, in fact, said that there are two memoranda...

MCMAHON:  No, Ron.

CHRISTIE:  ... that detail specifically how enhanced interrogation techniques have been successful.

MCMAHON:  Here‘s what I‘m suggesting...

(CROSSTALK)

CHRISTIE:  Steve, hear me out.  Steve, hear me out here.  Here‘s one thing Democrats don‘t want to do.  They can‘t point to one single step taken by this administration that has made this country safer since the president has come into office.  They want to continue this vendetta...

SHUSTER:  Well, wait—not at all, Ron.

CHRISTIE:  ... against the Bush administration...

(CROSSTALK)

SHUSTER:  I mean, just the mere fact that—wait a second, Ron.

(CROSSTALK)

SHUSTER:  Ron, I don‘t think it‘s fair for to you speak for Democrats.  I mean, Democrats have said the mere fact that they‘ve changed the policy, that they‘ve talked about getting out of Iraq, that they‘ve talked about and they‘re planning to close Guantanamo has improved the U.S. standing in the world and has decreased the number of people who are now joining terrorists and fighting Americans in Iraq.

MCMAHON:  I‘ll tell you one thing, Ron.  America is...

CHRISTIE:  Well, David—David, if that were true...

MCMAHON:  ... safer when the entire world doesn‘t hate us, Ron. 

America is safer when the entire world doesn‘t...

SHUSTER:  Oh, Steve.  Steve...

MCMAHON:  ... hate us.

SHUSTER:  Let me refocus...

(CROSSTALK)

SHUSTER:  Here‘s where I think Democrats are vulnerable.  And this is Vice President Cheney sort of defending the Bush policy, and we‘ll roll the sound bite.  And here‘s where I think Democrats do need to be careful.  Watch.  Here‘s the vice president.

(BEGIN VIDEO CLIP)

CHENEY:  Bottom line is we successfully defended the nation for seven-and-a-half years against a follow-on attack to 9/11.  That was a remarkable achievement.  Nobody would have thought that was possible, but it was.  I believe it was possible because of the policies we had in place, which they‘re now dismantling.

(END VIDEO CLIP)

SHUSTER:  Given that there hasn‘t been an attack, Steve, don‘t Democrats need to be somewhat careful with this line of argument?

MCMAHON:  Listen, there‘s no question that America has been safe from attack for seven-and-a-half years.  And there‘s no question that the Bush administration bears some—deserves some credit for that.

But what vice president—or the former vice president is doing here is what he so often does.  He‘s establishing a causal link, and he‘s essentially saying that—just like he did, by the way, with WMDs in Iraq and why we went into a war there where we shouldn‘t have gone.  He‘s saying that the policies—and he‘s referring to torture—are the things that made us safe and kept us from being attacked.  And that‘s utterly ridiculous.

What kept us from being attacked was going in and crushing al Qaeda.  What kept us being attacked was the fact 19 of their best soldiers died that day with 3,000 Americans.  There are a lot of things that kept us from being attacked, and the Bush administration gets some credit for some of those things.  But you know, we haven‘t been attacked since Barack Obama...

CHRISTIE:  And again, the only thing I have to say to that, Steve...

MCMAHON:  ... has been president, either.  And the world doesn‘t hate us...

CHRISTIE:  Steve...

MCMAHON:  ... quite as much as it did three months ago.

CHRISTIE:  Steve—again...

MCMAHON:  That‘s why.

CHRISTIE:  ... let‘s look at what al Qaeda said in the release of their memorandum, or I should say the release of an audiotape...

MCMAHON:  Their press release.

SHUSTER:  ... by the number two of al Qaeda...

MCMAHON:  (INAUDIBLE) go with the press release (INAUDIBLE)

CHRISTIE:  ... who said that—again, al Qaeda has said that they are

not looking at the actions being taken by the American president, the new

president, and thinking that that‘s going to generate good will.  Al Qaeda

still hates us.  They still want to kill us.  This administration has not,

in my opinion, taken one step to make us safer as a country.  Instead, they

have dismantled those programs and those techniques that have been proven -

that have gotten—released information from terrorists...

SHUSTER:  Well, Ron, speaking of al Qaeda...

(CROSSTALK)

SHUSTER:  You both have mentioned it—you both have mentioned al Qaeda, and here‘s something, Ron, for you that I found sort of baffling.  Here‘s Vice President Cheney talking about what we knew about al Qaeda. 

Here he is, from “Face the Nation” this Sunday.  Watch.

(BEGIN VIDEO CLIP)

CHENEY:  On the morning of 9/12, if you will, there was a great deal we didn‘t know about al Qaeda.  There was a need to embark upon a new strategy with respect to treating this as a strategic threat to the United States.

(END VIDEO CLIP)

SHUSTER:  We didn‘t know about al Qaeda, Ron?  I mean, we knew that Osama bin Laden‘s al Qaeda bombed two U.S. embassies in Africa in 1998.  We knew they attacked the USS Cole in 2000.  And in August of 2001, President Bush and Vice President Cheney knew, or they were informed in an intelligence briefing, that bin Laden was determined to strike in the United States.  So when Vice President Cheney says, We didn‘t know about al Qaeda, he‘s wrong, isn‘t he?

CHRISTIE:  Well, again, that‘s one snippet taken out of context, David.  I haven‘t seen that entire snippet.  Of course, we knew about al Qaeda.  But if we want to go back and we want to have selective memory against the Bush administration, we also knew that the Clinton administration knew about al Qaeda, and President Clinton was given a golden opportunity to take out Osama bin Laden, and he elected not to do so.  So let‘s not...

SHUSTER:  But the reason I bring this up...

(CROSSTALK)

CHRISTIE:  ... We didn‘t know about al Qaeda, David.

SHUSTER:  Right, but the reason I bring this up because the vice president is suggesting because we didn‘t know about al Qaeda, that it was therefore OK to torture to get information about al Qaeda, and that‘s the link where I think it‘s problematic.  Steve?

MCMAHON:  That‘s the link where...

CHRISTIE:  Well, David, again...

MCMAHON:  ... it‘s problematic.  It‘s also problematic...

(CROSSTALK)

CHRISTIE:  We have never supported torture in this country.  The president has said that he did not support torture.  The previous administration did not support torture.

MCMAHON:  Hey, Ron...

CHRISTIE:  We supported enhanced...

MCMAHON:  Ron—Ron...

CHRISTIE:  ... interrogation techniques, David.

MCMAHON:  Ron, Ron...

CHRISTIE:  Steve, I hate to tell you, this country has been kept safer

by the steps of the Bush administration.

MCMAHON:  OK, but can I point one thing out to you?

(CROSSTALK)

MCMAHON:  Can I point one thing out to you, Ron?

CHRISTIE:  Please.

MCMAHON:  Waterboarding was considered torture as far back as World War II.  It‘s against the Geneva Convention.  It‘s against treaties that we signed.  And it‘s against the law.

And the fact that the administration had a lawyer in the Justice Department, who was a political appointee, write a memo that redefined what torture is and redefined it in a way that isn‘t consistent with the understanding of the treaties we signed, the laws we live under, or the entire world‘s understanding of torture—the fact that that lawyer did that and got a federal judgeship later doesn‘t mean that it wasn‘t torture.

It simply means that they had a memo from a political appointee in the Justice Department which redefined it.  That‘s all it means, Ron.  It doesn‘t change the fact that...

CHRISTIE:  Well, Steve, I...

MCMAHON:  ... it was torture for the last 75 years.

CHRISTIE:  I hate to—I hate to point out the reality—I hate to point out the reality to you that we actually waterboard our airmen and we actually waterboard our special forces.  So you‘re saying that the American government is committing torture against its own American citizens?  That‘s absurd.

MCMAHON:  What I‘m saying, Ron...

CHRISTIE:  Oh, and you want to talk about Geneva Convention, Steve.

MCMAHON:  The Navy SEALs agree to do...

CHRISTIE:  Let‘s look at the fact of the matter...

MCMAHON:  ... voluntarily...

CHRISTIE:  ... and the fact of the matter is—Steve, the face of the matter is al Qaeda is not a signatory to the Geneva Convention.  We are not fighting a conventional war.  We are fighting a war against terrorists.  We are not fighting a war against a specific flag or a specific country.  And to try to equate al Qaeda to be afforded Geneva Convention protections I think is outrageous.

MCMAHON:  You know what, though, Ron?  They didn‘t sign it, but we did.  We did, and that‘s the difference.  This is a country that honors its commitments, that signs treaties...

CHRISTIE:  Oh, OK...

MCMAHON:  ... and that lives by the treaties that it signs.  This is a country, by the way, that participated in prosecuting people and putting them to death for doing the very things that Dick Cheney is now defending.

SHUSTER:  Steve McMahon, Democratic strategist...

CHRISTIE:  And the thing I would say is...

SHUSTER:  ... Ron Christie, Republican strategist, thank you both for coming on.

This conversation, of course, leads to the next question, and that is, Does torture work?  Is there any situation where, as Cheney says, those enhanced interrogation techniques like waterboarding actually keep us safe?  We‘ll talk to two veterans of the national security community who have very different opinions.

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

SHUSTER:  Welcome back to HARDBALL.  On the issue of torture, “Washington Post” columnist Richard Cohen today asked the question, What if Cheney‘s right?  The former vice president says that classified memos, which he wants declassified, prove that waterboarding worked.

Here‘s Cheney on Khalid Shaikh Mohammed.

(BEGIN VIDEO CLIP)

CHENEY:  He did not cooperate fully in terms of interrogations until after waterboarding.  Once we went through that process, he produced vast quantities of invaluable information about al Qaeda.

(END VIDEO CLIP)

SHUSTER:  President Obama has a different take.

(BEGIN VIDEO CLIP)

OBAMA:  What I‘ve said, and I will repeat, is that waterboarding violates our ideals and our values.  I do believe that it is torture.  We could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.

(END VIDEO CLIP)

SHUSTER:  So who is right?  Bob Baer is a former CIA case officer and Time.com‘s intelligence columnist.  Frank Gaffney is the president of the Center for Security Policy and served as assistant defense secretary.

Bob, to you first.  Is there unequivocal evidence that torture does not work?

BOB BAER, FORMER CIA OFFICER:  No.  Nobody knows that for certain, I mean, but generally speaking, our experience in the intelligence community, it doesn‘t work.  My first experience was the torture to death of my boss in Beirut, Bill Buckley.  Later on, we obtained his so-called confession, which said nothing at all.  And ever since then, I‘ve been sort of a student of torture.  But I generally find it‘s regimes that intend to intimidate who use torture but not to collect good intelligence.

SHUSTER:  Frank, how do we know some alternative method might not have worked in the case that Dick Cheney was pointing out to?

FRANK GAFFNEY, CENTER FOR SECURITY POLICY:  Well, I don‘t think we do know.  I‘m pretty sure the president of the United States doesn‘t know.  I think he‘s asserting it and he‘s entitled to assert it.

But what I don‘t think is in dispute, at least if these memos that have been described by not only Dick Cheney but members of the Congress, say what we‘re told they say, is that the techniques that were used—which I don‘t believe constitute torture—did, in fact, extract information from hardened al Qaeda operatives who had resisted other means.

Now, for the president to say, Oh, we could have gotten it in another manner, is entirely speculative.  Who knows how long it would have taken, if it would have worked at all.  But I certainly don‘t think he has a specific idea in mind, a technique in mind that would have gotten this information, particularly in the way and at the time we needed it.

SHUSTER:  Well, Frank, if you‘re right and if Vice President Cheney is right, why, then, did waterboarding have to be done over 100 times in a couple of these instances?

GAFFNEY:  Well, I guess it just shows how hardened these guys are and how much it must not constitute torture. 

I—I think that it‘s an unpleasant technique.  It certainly doesn‘t

have lasting effects.  And, in that sense, I think it doesn‘t rise to the -

the standard that everybody, including this network, incessantly says it does. 

SHUSTER:  Bob Baer? 

ROBERT BAER, INTELLIGENCE ANALYST, TIME.COM:  Well, I—no, I think it‘s torture.

But I think the real point is, we should stop making this so partisan.  And I agree with the former vice president.  We should declassify this information taken from Abu Zubaydah, Khalid Sheikh Mohammed, find out if they really did prevent—lives.  Then we can get on the moral argument. 

In all fairness to the last administration, they were presented with a dilemma.  They said, we can either use these techniques, whether you call them torture or enhanced interrogation, or we‘re going to suffer another 9/11.  That was the case presented to them.  We know what they chose. 

But now let‘s see what we got out of it.  Otherwise, this debate will go on forever and ever, until there‘s the next attack. 

(CROSSTALK)

SHUSTER:  Well, and on that point, on CBS‘ “Face the Nation,” Bob Schieffer pressed Dick Cheney about whether torture weakens our security because it makes a mockery of what we tell the rest of the world. 

Watch.

(BEGIN VIDEO CLIP, “FACE THE NATION”)

RICHARD B. CHENEY, FORMER VICE PRESIDENT OF THE UNITED STATES:  You would have to say that, in effect, we‘re prepared to sacrifice American lives, rather than run an intelligent interrogation program that would provide us the information we need to protect America. 

(END VIDEO CLIP)

SHUSTER:  Frank, if it‘s OK to protect American lives, say, in a U.S.  city by torturing somebody, isn‘t it then OK, shouldn‘t we encourage our soldiers who develop information in Iraq about something that may be around the corner to go ahead and torture Iraqis to try to prevent the loss of four or five soldiers?  I mean, where do you draw the line? 

GAFFNEY:  Well, look, I think what we‘re going to confront at some point down the road is another terrible attack.  I believe this president will want to be able to use every technique available to us...

SHUSTER:  Right.  But, Frank, my point is that there are terrible attacks all the time in Iraq. 

GAFFNEY:  There are terrible attacks...

SHUSTER:  And the point is, if this works, why not say to soldiers, go ahead, torture Iraqis that you find in order to get information about where the next IED is? 

That‘s the point. 

(CROSSTALK)

SHUSTER:  Why is a soldier‘s life worth less than the life of an American here at home? 

GAFFNEY:  Look, I‘m as worried about the lives of American soldiers as I am people here at home. 

I think, in fact, this whole debate is simply putting in jeopardy, as

as will these new photos that the president intends to unveil on Memorial Day, no less, are going to put American soldiers at—lives at risk. 

I‘m not calling it torture.  You persist in saying that.  I don‘t think that we should engage in torture.  I think our soldiers should use techniques that are available to them under the Army Field Manual to get information.

And, if there‘s a very-high-value target, I suspect that they will wind up having to go to higher authority for permission to do more intensive interrogations.  And maybe Barack Obama will tell them what that secret technique that he knows about that‘s consistent with our value will be.  I hope it‘s there and I hope it works.

But, if it doesn‘t and real threat of loss of life is happening, I suspect we‘re going to have to use some of the techniques that he has now said are impermissible.  That will be terrible, regrettable.

SHUSTER:  Well, Bob Baer, you have been in—Bob Baer, you have actually been in the field in that situation.  We talked about Iraq.  It happens all the time and one you‘re familiar is.

What is the most effective way, whether it‘s that situation or a situation here at home where you have got somebody who you think has crucial information that could save lives?  How do you get—how do you get it out of them? 

BAER:  I hate to do this, but I defer to the FBI, good old police work, regular police interrogations that have worked over and over for the FBI. 

The FBI has stated, categorically, Bob Mueller, that torture doesn‘t work.  So, let‘s—let‘s—let‘s go with the classical techniques, because they do work.  And this ticking bomb scenario is so rare, it‘s not even worth discussing.  It just—it never happens. 

GAFFNEY:  We—we may—we better hope it stays rare.  I‘m not sure that that can be predicted from here on out. 

And, Bob, you have—you have—I know, on one point, we agree.  There are people in this world, including our friends in Saudi Arabia, who are determined to destroy us.  And I don‘t think they‘re going to be dissuaded from wanting to do that by whether we use water-boarding on some of their illegal combatants in the future or not. 

SHUSTER:  On the issue of the photographs, you mention that—that the Obama administration is preparing to release up to 2,000 photographs showing some of the, I guess, the prisoners and the techniques that were used and what was going on. 

Liz Cheney today, Frank, said that President Obama, in doing this, is siding with terrorists.  Do you agree with that? 

GAFFNEY:  Look, whatever he‘s thinking about, I think what he is, as a practical matter, doing is emboldening terrorists. 

He will be adding to the recruitment of terrorists that he says he doesn‘t want to have recruited.  I can‘t, for the life of me, figure out—these are not—by the way, these have no bearing, as I understand it, on the kinds of intensive techniques that we have been talking about.  These are more of the—the kind of spectacles that we saw out of Abu Ghraib by these kids, you know, getting their jollies off. 

That is irresponsible.  And it will, in fact, intensify the danger, I think, not only to our soldiers overseas, but to our people here at home.  And I just think the president should rethink this immediately, rather than press ahead, especially in a way that is so much of an affront to our American service men and women, who we are memorializing on the very weekend he proposes to release these thousands of photographs.  It‘s despicable. 

SHUSTER:  Bob Baer, is it despicable and an affront to release those photographs, or is it more despicable and an affront to our soldiers not to release them? 

BAER:  I think, the more clarity we have on this issue, the better.  I don‘t know about the timing, but the—we have got to discuss this in the open.  It can‘t be done in the secret, trust me. 

GAFFNEY:  Oh, Bob, come on.  Thousands of additional photographs showing people in unpleasant positions, I—I honestly don‘t think this is going to add one iota to the clarity that we have from the thousands of photographs, or hundreds, however many it‘s been, of photographs before. 

This will simply aggravate an unpleasant situation.

BAER:  You know, Frank, I will concede that one for you.  I will concede that one for you.  I will concede that.  That‘s just—it‘s not a good idea, because it—we have enough problems in the Middle East.  It‘s just going to add to them. 

GAFFNEY:  I agree.

BAER:  I agree with Frank on this one. 

GAFFNEY:  I agree. 

SHUSTER:  Bob Baer and Frank Gaffney, thank you both.  It will be so interesting to see what happens. 

We appreciate you coming in today. 

GAFFNEY:  My pleasure.  Thank you. 

BAER:  Thank you.  You‘re welcome. 

Up next:  It seems like House Republican Leader John Boehner, or at least his spokesman, cannot take a joke—his comeback to President Obama‘s jab at the Correspondents Dinner next in the “Sideshow.”

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

SHUSTER:  Back to HARDBALL and time for “Sideshow.”

There are some new developments in the insult battle between President Obama and Republican House Leader John “Tanning Bed” Boehner. 

First, remember Saturday night?

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  In the next hundred days, our bipartisan outreach will be so successful that even John Boehner will consider becoming a Democrat. 

(LAUGHTER)

OBAMA:  After all, we have a lot in common.  He is a person of color...

(LAUGHTER)

(APPLAUSE)

OBAMA:  ... although not a color that appears in the natural world.

(LAUGHTER)

(END VIDEO CLIP)

SHUSTER:  While Boehner‘s spokesman initially declined to comment on the crack, he later e-mailed this over to The Politico—quote—“If Leader Boehner had a nickel for every time he‘s heard a joke like that, he could make a dent, a serious dent, in Washington Democrats‘ record-setting deficit.”

Oh, come on.  If that‘s the best you can come up with, your boss, Leader Boehner, is in even bigger trouble than he realizes. 

Next up:  FOX News‘ Bill O‘Reilly was at it again last night, ripping his unusual five-alarm bell over gay marriage. 

(BEGIN VIDEO CLIP, “THE O‘REILLY FACTOR”)

BILL O‘REILLY, HOST, “THE O‘REILLY FACTOR”:  I had said from the jump, if you OK gay marriage, then you have to do plural marriage, which is now have the name triads, three people getting married. 

You would let everybody do what they want. 

MARGARET HOOVER, FOX NEWS CONTRIBUTOR:  Yes, that‘s—that‘s the slippery slope argument.  That‘s, if you allow one thing to happen, then another thing, then another thing.

(CROSSTALK)

O‘REILLY:  Hoover, you would let everybody get married who want to get married.  If you want to marry a turtle, you can. 

(END VIDEO CLIP)

SHUSTER:  Marry a turtle?  That argument is so ridiculous, so illogical, and so stupid, one can only presume Bill O‘Reilly really hates gays and lesbians, and doesn‘t want to talk about it, or that his cognitive reasoning skills have hit cuckoo land, if you know what I mean.

We will have more on gay marriage coming up.

But time now for tonight‘s “Big Number.”

Just a couple months ago, all eyes were on the New York House race to replace now Senator Kirsten Gillibrand.  Could Democrats hold onto the seat?  Would Republicans bounce back from a disastrous election year.  While the election-night results were too close to call, today, we have got a certified winner. 

So, what‘s the final tally?  According to New York‘s Board of elections, Democrat Jim Murphy edged out a win by 726 votes.  The key here is that the absentee ballots counted after Election Day trended towards Murphy.  The Democrats hold on to New York‘s 20th District by a 726-vote margin—tonight‘s “Big Number.” 

Up next:  Miss California gets to keep her crown, despite those racy photos, and after saying marriage should be between a man and a woman.  But has she moved the political debate over gay marriage?  Do more people support it now after hearing from critics like Prejean?  That debate over gay marriage is ahead.

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MARGARET BRENNAN, CNBC CORRESPONDENT:  I‘m Margaret Brennan with your CNBC “Market Wrap.”

Stocks closing mixed, after a choppy session, but the Dow ended the day up about 50 points, S&P 500 declined just fractionally, and the Nasdaq lower by 15, tough day for techs there. 

Shares of General Motors plunged more than 20 percent today to a 76-year low.  The drop came after a regulatory filing showed that six executives dumped their remaining shares.  GM is heading for a possible bankruptcy filing if they don‘t meet that June 1 restructuring deadline. 

Home prices dropped the most on record in the first quarter of the year.  The National Association of Realtors reports that the median price fell of homes sold nearly 14 percent from the previous year, mostly due to the sale of foreclosed homes. 

On the bright side, the inventory of unsold homes fell again in April. 

And oil rose 35 cents, closing at a six-month high of $58.85 a barrel. 

That‘s it from CNBC, first in business worldwide—now back to

HARDBALL. 

(BEGIN VIDEO CLIP)

CARRIE PREJEAN, MISS CALIFORNIA:  I exercised my freedom of speech, and I was punished for doing so.  This should not happen in America.  It undermines the constitutional rights for which my grandfather fought for. 

Mr. Trump has graciously asked me to speak from my heart today.  And I need to address some concerns, rumors and hateful attacks that have been reported about me as recent as this morning. 

(END VIDEO CLIP)

SHUSTER:  Welcome back to HARDBALL. 

That was Carrie Prejean earlier today.  She is still Miss California, despite some racy photos that emerged on the Internet and allegations that Prejean violated her pageant contract by denying any such photos existed. 

Critics say Prejean also violated her pageant contract by helping a political organization.  Just a few weeks ago, Prejean appeared with a group running ads against gay marriage. 

And, so, while today‘s news conference with Donald Trump resolved the issue of Prejean‘s Miss California crown, it served once again to light a fire over the gay marriage debate and the arguments on both sides. 

Joining us now, Peter Sprigg, senior fellow at the Family Research Council, and Joe Solmonese, who is president of the Human Rights Campaign.

Sorry about that mispronunciation.

First question to both of you.  Which one of you has been helped or hurt more by the way this whole gay marriage debate has essentially emerged in the context of a Miss USA pageant? 

Peter?

PETER SPRIGG, VICE PRESIDENT FOR POLICY, FAMILY RESEARCH COUNCIL: 

Well, I think what this has illustrated is—I mean, it‘s—it‘s—what‘s astonishing to me about this whole incident is that it‘s considered controversial for Miss California to express a viewpoint which is shared by the majority of Americans and the majority of Californians, that—namely, that marriage should be the union of a man and woman. 

But what I think it‘s revealed is that, while we‘re accused of—of hate and so forth for expressing that view, the hate is really on the other side.  And the story should really be about Perez Hilton and how vicious he was to her in his comments about her after the pageant, rather than being about Carrie Prejean and what she said. 

SHUSTER:  Joe? 

JOE SOLMONESE, PRESIDENT, HUMAN RIGHTS CAMPAIGN:  I don‘t think that Miss California has had much impact one way or the other on the fight for marriage equality in this country.

But what I think is interesting is—and—and, you know, their side knows this, and our side knows this—is that, if you‘re under 40 years old in this country, an overwhelming majority of Americans support marriage equality.  If you‘re under 30, they don‘t even know why you‘re asking the question.  The number goes through the roof. 

So, I suppose, you know, maybe Miss California is an attempt to inject a younger face into that debate to try to change those numbers.  If that‘s the case, and that‘s the best they can do, I certainly welcome her to the debate. 

SHUSTER:  Well, and that raises the question, Peter, has Miss California been a good spokesperson of sorts for the position that you share? 

SPRIGG:  Well, Miss California is not a trained media spokesperson, and she‘s not a trained policy expert on same-sex marriage.

SHUSTER:  That‘s true, but she‘s gotten more media attention than most of us will perhaps in our lifetime in the last couple weeks. 

(LAUGHTER)

SPRIGG:  Yes, well, that‘s perhaps unfortunate.

But I think what she represents is—is, she‘s almost a martyr, in a sense, for—for the traditional values movement.  And she shows that—that even the freedom to speak of people who hold traditional values is threatened by this same-sex marriage movement, and this is what‘s really alarming. 

SHUSTER:  Somebody who participates in a beauty pageant, gets some of their help for various issues, speaks her mind.  People disagree with her.  She goes and helps with a political campaign against gay marriage and gets criticized for it.  She‘s a martyr? 

SPRIGG:  Well, because of how viciously she was attacked, in particular, by Perez Hilton, who set this whole thing off, but throughout the blogosphere by a number of gay bloggers and so forth, who acted as though she was saying something hateful and bigoted, when all she was doing was expressing the majority viewpoint in this country. 

SOLMONESE:  Well, look, the big news today is she got to keep her

crown.  So, unfortunately, I think it overshadows the more important

developments, which are that, you know, in the last few weeks or so we‘ve

seen the state of Iowa move to marriage equality; Vermont, the legislature

the people‘s enacted legislature in Vermont overrode the governor‘s veto.  The governor of Maine signed a marriage bill.  The governor of New Hampshire is posed to sign a marriage bill. 

In pretty short order, New York and New Jersey are going to move to marriage equality.  What we see in those states is that life remains the same and nothing changes.  It doesn‘t change for the marriages of heterosexual couples.  They enjoy the same joys and the same hardships and the same challenges they always have. 

SPRIGG:  Life doesn‘t remain the same.  Catholic charities, which provided adoption services for years in Massachusetts, is no longer permitted to provide adoption services. 

SOLMONESE:  Which was a choice Catholic charities made. 

SPRIGG:  The schools teach same-sex marriage in Massachusetts from kindergarten on up, which is something that in California, in the Prop 8 campaign, they denied would happen, but it happened in Massachusetts. 

SOLMONESE:  First of all, religious institutions are not required to perform same-sex marriages.  When religious institutions get into the business of adoption, get into the business of renting out space, as the church in New Jersey did, for functions, then they have to adhere to the laws in those states. 

Catholic charities had been doing adoptions to same-sex couples for an awfully long time before they decided to get out of the adoption business in the state of Massachusetts. 

SPRIGG:  The fact is, the children are suffering, the children who could have been helped by Catholic charities, are no longer—

SHUSTER:  But aren‘t children suffering who have parents who may be of the same sex who love each other, who want to enter into the conservative institution of marriage, and want to have their parents, essentially, be the same somewhat as the kids down the block?  I mean, don‘t those kids suffer as well? 

SPRIGG:  Well, ultimately, children suffer when they don‘t have the opportunity to be raised by their own biological mother and father who are committed to one another in a life long union.  And that‘s the purpose of marriage.  The fundamental purpose of marriage as a social institution is to bring together men and women for the reproduction of the—

SHUSTER:  So then if somebody is older or if they can‘t reproduce, for whatever reason, if somebody‘s older, they don‘t want to have kids, they can‘t reproduce, we should keep them from getting married.  Right?

SPRIGG:  No, it‘s not that it‘s mandatory, but it‘s that that is the fundamental purpose of marriage.  And it undermines that purpose to grant marriage licenses to an entire type of couple that never, ever have the opportunity to naturally reproduce. 

SOLMONESE:  In this day and age, the fundamental principle of marriage is about love and about celebrating a long-term committed relationship.  And every reasonable study that I have seen shows that children flourish in loving, supporting households, whether those are in the households of same-sex couples or opposite-sex couples. 

SPRIGG:  Actually, the research shows that children do best when raised by their own biological mother and father who are committed to each other in a life long marriage.

SHUSTER:  Real quick question, should Barack Obama make the issue of gay marriage something that he evaluates or that the Senate evaluates in terms of his judge, his pick for the Supreme Court?  Should we have a right to know where this particular judge stands on the issue of gay marriage before the Senate Judiciary Committee starts voting on that person? 

SPRIGG:  Well, I mean, I‘m reluctant to say that there should be a litmus test on any issue.  The litmus test should be the person‘s judicial philosophy.  But we certainly believe that philosophy should be one of respect for the original intent of the Constitution, and the Constitution says nothing about same-sex marriage. 

SHUSTER:  Joe? 

SOLMONESE:  Well, you know, President Obama has said that he‘s going to evaluate the merits of these candidates on the degree to which they‘re empathetic to the circumstances of the lives of the American people.  And so I take him at his word. 

SHUSTER:  Joe Solmonese from the Human Rights Campaign, and Peter Sprigg from the Family Research Council, interesting conversation.  We appreciate you both coming in today. 

Up next, Florida‘s popular Republican Governor Charlie Crist announces he‘s running for Senate.  But after Crist campaigned for President Obama‘s stimulus, why would Republicans rally behind Crist when they ran Arlen Specter out of the party for the same thing?  This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

SHUSTER:  We‘re back in time for the politics fix with the “Financial Times” Chrystia Freeland and the “Politico‘s” Jonathan Martin.

First up for both of you, Charlie Crist, the governor of Florida, Republican governor, former, has announced that he‘s going to run for the Senate.  He made his announcement today on Twitter, first of all. 

He said, quote, “after thoughtful consideration with my wife Carol, I have decided to run for the U.S. Senate.”  He then, of course, had a news conference. 

This is fascinating on so many levels.  Chrystia, in part, are the conservative Republicans going to run somebody against him? 

CHRYSTIA FREELAND, “THE FINANCIAL TIMES”:  Well, you know, I think that Crist is a very strong candidate.  And the fact that he supported Obama on the stimulus bill I think actually should strengthen him in Florida.  You know, I think that we‘ve now reached a point where the Republicans are seeing that people in states hit by the recession are not that grateful to governors who are turning down money offered by the federal government. 

So I think this is actually a real opportunity for the Republican party to pull back from the brink, as it were, and say actually there is room in the tent for more moderate voices. 

SHUSTER:  Jonathan, you‘ve got the support of Mitch McConnell and others for Charlie Crist.  Yet these are the same Republican senators who decided they were very—they were very angry with Arlen Specter and happy to dump on him.  What‘s the difference? 

JONATHAN MARTIN, “POLITICO”:  It‘s going to be very interesting to watch this primary unfold, David.  There is, in fact, a conservative in this race that‘s going to be challenging Governor Crist.  His name is Marco Rubio.  He‘s a young Hispanic Cuban American, former speaker of the state house, from Miami.  He announced his candidacy earlier this year. 

This is going to be a fascinating race to watch between the establishment wing of the party and the more conservative wing.  You saw Mitch McConnell.  You saw John Cornyn, the chairman of the Senate Campaign Committee, come out and swiftly endorse Crist today.  There‘s going to be some conservatives who I think are going to be unhappy about that, who want to see Rubio at least have a chance at this thing without the sort of party establishment come and get behind Crist.

But you can‘t necessarily blame Cornyn and McConnell, given the fact that Florida is a very expensive state, David.  And it‘s a heck of a lot easier to have a strong candidate like Crist, who is something close to a lock in a general election, as opposed to having a bloody, drawn out primary.  They want to just be sure this seat stays in GOP hands, not have to worry about it.  They think Crist is the way to do that.

SHUSTER:  What is Crist ultimately after?  I mean, does he want to be at that building behind you, Jonathan Martin?  Does he want to run for the White House at some point?

MARTIN:  I think he‘s a very ambitious politician.  I think he would not mind at all being in this building behind me.  He‘s a very savvy person, very personable.  I think he‘s somebody that understands the better place to be right now is probably the Senate, that it is being governor in a very tough economic time. 

Tallahassee right now has huge budget deficits.  I think this is the smart move for him right now.  I‘m not sure you can go to the Senate in 2011, David, and then turn around later that year and run for the GOP nomination for 2012.

But that said, I wouldn‘t rule out a bid certainly down the road for Governor Crist.  He‘s still young enough to keep his options open.

SHUSTER:  Chrystia, is this a difficult issue at all, as far as the support of Charlie Crist?  I think I misspoke.  He‘s actually forgoing his second gubernatorial term in order to run for the Senate.

Is this a difficult issue for conservative Republicans here in Washington?  Or do they look at this purely in terms of electoral politics and who can win this possible seat?

FREELAND:  Well, David, I think you mentioned Arlen Specter.  I think that is a really interesting and important factor.  I think the Specter defection really could turn out to have been a watershed moment for the Republicans, and a moment when—as we‘ve been saying, even some of the more conservative voices in Washington have spoken out in favor of Governor Crist, I think, precisely because they want to show that the Republican tent is big enough to accommodate a popular governor, who, after all, isn‘t a flaming moderate.  He‘s a clear Republican.

SHUSTER:  One of those—

MARTIN:  I think it‘s because they want to win, David.

SHUSTER:  I hear you about that.  I think they do want to win.  I was going to say, one of the Republicans holding up that tent right now, Michael Steele.  He has done it again.  We will get to that.  We‘ll be back with Chrystia Freeland and Jonathan Martin for more of the  politics fix.  You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

SHUSTER:  We‘re back with Chrystia Freeland and Jonathan Martin for more of the politics fix.  Let‘s talk about Michael Steele, the Republican National Committee Chair.  On Friday, while guest hosting Bill Bennett‘s radio show, Michael Steele said, quote, “it was the base that rejected Mitt”—referring to Mitt Romney—“because of his switch on pro-life, from pro-choice to pro-life.  It was the base that rejected Mitt because it had issues with Mormonism.”

A Romney spokesman told “The Hill” newspaper, “sometimes when you shoot from the hip, you miss the target.  This is one of those times.”

An RNC spokeswoman responded, quote, “Chairman Steele regrets the way his comments have been interpreted.  He believes Mitt Romney is a respected and influential voice in the Republican party and looks to his leadership and ideals to help our party and our nation in the right direction.”

Chrystia, when Michael Steele says he regrets the way his comments have been interpreted, is he simply saying, I regret that anybody thought I was making a slam at Mormonism?  I thought it was a pretty much established fact that Mitt Romney‘s Mormonism didn‘t exactly help him with white Evangelicals in the Republican primaries, right?

FREELAND:  I think that Michael Steele is emerging as sort of the Joe Biden of the Republican party, as it were.  Both of them need to have simultaneous translation of what our handlers wanted us to say, as opposed to what we actually said. 

I think that his comments wouldn‘t have been objectionable at all if you had said it, or if a columnist had said it.  I think the difficulty is there are certain things that aren‘t that appropriate for a leader of the Republican party to make, even if they‘re actually true.  I think these were those comments.

SHUSTER:  Jonathan, the comments, in this case, I would say they‘re accurate.  But to Chrystia‘s point, Michael Steele sometimes doesn‘t know when he should just stay quiet.

MARTIN:  Of course they‘re accurate.  The fact is that Romney didn‘t lose the primary just because of his Mormonism, but it certainly didn‘t help him, especially in a place like Iowa, dominated by Evangelicals.

Two fast points, David; first, I‘m curious as to why the chairman of the RNC is guest hosting a radio show in the place.  Secondly, this is the kind of thing where he might an apology not just Governor Romney, but to the base of his party.  He‘s suggesting that the base of his party had a problem with one of their candidate‘s religion.  As the chairman of the party, that‘s not exactly a kind thing to say about the folks who make up your foot soldiers.

SHUSTER:  Jonathan, are you picking up any reporter—Chrystia, same question to you—that there‘s any more aggressive effort to dump Michael Steele as head of the RNC?

MARTIN:  You know, that‘s quieted down.  I think that it‘s tough to see how that happens anytime soon. 

I will say this, there are two important governors races this fall, in Jersey and Virginia.  If the Republicans lose both of those, you may see an effort heading into the 2010 cycle to get a new chairman.  But certainly, David, he‘s not helping himself by being in the news for all the wrong reasons. 

But for right now, I think it‘s pretty safe.

FREELAND:  Yes, I would agree with Jonathan.  I would also say, I think the problems of the Republican party at this point go a lot deeper than Michael Steele.  If anything, he is sort of an amusing side show.

SHUSTER:  Chrystia Freeland and Jonathan Martin, thank you both.  We appreciate it.  So interesting.  Also, special thanks to our colleague Brook Brower.  He‘s getting married this weekend.  He will be gone for a little while.  Brook, on behalf of all of us, congratulations to you and Kate.

Chris will be back tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  I‘m David Shuster.  Right now it‘s time for “THE ED SHOW” with Ed Schultz.

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

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