updated 5/18/2004 9:14:22 AM ET 2004-05-18T13:14:22

Guests: Seymour Hersh, Jonathan Davis, Paul Bergrin, Tony Blankley

CHRIS MATTHEWS, HOST:  A major setback in Iraq as a suicide bomber kills the president of the Iraqi Governing Council. 

And did the abuse of Iraqi prisoners happen because of a secret interrogation plan approved by Donald Rumsfeld?  The Pentagon calls the report in “The New Yorker” magazine outlandish, conspiratorial and filled with error, but doesn‘t deny the program exists. 

We‘ll talk to the journalist who broke the story, Seymour Hersh. 

Plus President Bush‘s job approval reached the lowest level ever in the latest polls.

Let‘s play HARDBALL. 

Good evening.  I‘m Chris Matthews. 

The war in Iraq continues to take its toll on President Bush‘s poll number.  The president now has a 42 percent job approval rating in the latest Zogby poll, the lowest of his presidency. 

And now Seymour Hersh is reporting in “The New Yorker” magazine that a secret operation approved by Defense Secretary Donald Rumsfeld encouraged fear and sexual humiliation of Iraqi detainees.  The Pentagon disparaged the report but hasn‘t denied the program‘s existence. 

Seymour Hersh will be here in just a moment. 

But first the head of Iraqi‘s Governing Council was killed today when a bomb went off near a checkpoint just outside coalition headquarters.  And in a separate incident, a bomb containing sarin nerve gas exploded near a U.S. convoy, but no one was seriously injured. 

NBC‘s Carl Rochelle has the latest now from Baghdad. 

CARL ROCHELLE, NBC NEWS CORRESPONDENT:  Chris, the president of the Iraqi Governing Council, Ezz El-Din Salim, was killed in a suicide bomb explosion right at the entrance to the Green Zone where the coalition headquarters are. 

Here‘s the way it happened.  Early this morning, a major explosion hit.  We could see it.  We could feel it.  We could hear it here at the NBC bureau about two miles from there. 

What had happened?  A queue of five cars pulled up to go through the checkpoint inside, all carrying members of the Iraqi Governing Council.  Four were safely inside the barricades when a car pulled up beside the fifth one that contained the president. 

The bomb went off.  The car exploded.  His car was destroyed.  Two other cars were destroyed in the area.  A total of six individuals were killed, eight wounded, including two U.S. soldiers.  And the president of the Iraqi Governing Council was killed in that explosion. 

Now, an organization previously unheard of has claimed credit for the incident, but the people at the Coalition Provisional headquarters say it has all the earmarks of the al-Zawahiri, the al Qaeda, the Ansar Islam organizations that have been responsible for so many bombs like that in the past. 

In fact, there was a similar one back on May 5 at another checkpoint where five died, including one U.S. soldier, also attributed to the Ansar al-Islam organization. 

A new president has already been named.  It is a rotating presidency.  But the new person to take it, Ghazi Mashal Ajil al-Yawar, he is a Sunni Muslim from the area around Mosul. 

Now, Mr. Salim was a Shia Muslim from the area around Baghdad.  But the presidency has already moved on. 

Also, new change, a new equation to those IED‘s, those roadside bombs we‘ve become so familiar with.  Well, today when a group of explosive ordnance demolition personnel approached one of those, planning to render it safe, it went off before they could get there.  And it turns out that it was a 155-millimeter artillery shell containing nerve gas, sarin, the nerve gas. 

It is unclear whether there are more of those.  This is believed to be from stocks of nerve gas that had been made back before 1991, Desert Storm.  But there are also stocks that Saddam Hussein had said had been totally destroyed and there were no more in the country. 

The concern now is that there may be more of those around the country.  And any time anyone approached one of those IED‘s, it‘s not just an explosion but also nerve gas that they have to be concerned about and prepared to deal with—Chris. 

MATTHEWS:  Thank you very much.  NBC‘s Carl Rochelle, who‘s in Baghdad. 

Another explosive report from Seymour Hersh in this week‘s edition of “New Yorker” magazine.  The piece details how the roots of the abuses at Abu Ghraib lay in a decision approved last year by Defense Secretary Donald Rumsfeld himself to expand a classified operation for aggressive interrogations which would instill fear and disorientation in Iraqi prisoners, a program that has been focused on the hunt for al Qaeda terrorists. 

The Defense Department says this story is filled with error and anonymous conjecture. 

Hersh joins us right now. 

Has the Defense Department denied your story?

SEYMOUR HERSH, “THE NEW YORKER”:  No.  What they‘ve done is they‘ve gotten mad at the messenger, which always happens. 

MATTHEWS:  But have they denied the existence of this group, this group called the Special Access Program?

HERSH:  Well, the Special Access Program is a general phrase.  It just

means it‘s very—I don‘t really know.  One of the code names it had was -

·         they had a lot of code names.  It doesn‘t really matter which one. 

The group itself was set up after the war.  This is a classified, very secret group inside the Pentagon. 

Most of the time when we do things like we build the Predator aircraft, we build them under Special Access Program.  It‘s SAP, it‘s called.  It‘s a classified, inside program.  Nobody knows about it. 

Rumsfeld took this program and made a covert operational group out of it, which is his right...

MATTHEWS:  Right.

HERSH:  He‘s legally right.  Brought in people under aliases, hand approved everybody—SEALs, Delta, a bunch of commandos—these guys were given the free run of the world to go get al Qaeda, and other terrorists and take him to classified prison areas and do what they have to do to extract the information. 

This is a separate operation.  Very—As I say, the guys in it.  Who knows what passports they use?  No visas.  They would just go find them, get them, bring them back and find out what he has, was the message. 

MATTHEWS:  How did this black bag job get its hand on Abu Ghraib?

HERSH:  Well, what happens is, this group is off doing its thing. 

Last summer, everything hits the fan in Baghdad.  The U.N. embassy—the U.N. mission goes up.  The Jordanian embassy is blown up. 

We start talking in public to generals about 5,000 Ba‘athist insurgents.  Remember that finite number.  It seems sort of silly now.  But at that time they thought 5,000 guys. 

We were getting no intelligence on them from inside the prison system or from inside the country.  We had no assets. 

The idea was bring in some of these hot shots.  Bring them in under cover.  They always operate under cover.  Get them into the prison system.  Get them going.  Get them to toughen up what‘s going on.  And by that I mean...

MATTHEWS:  Who are these people that are involved in this tough—get tough program on prisoners?  Are they—They‘re Americans, right?

HERSH:  Yes. 

MATTHEWS:  Are they in the military?

HERSH:  Some are.  Some might be in another agency.  I know some are Delta, some are from the CIA. 

MATTHEWS:  It sounds like the Dirty Dozen or something.  We go out and get the toughest cutthroats we can find and bring them in to basically—to rubber hose these guys without anybody watching the rules. 

HERSH:  I think it was much better than that.  I think it was really a bunch of very, very hand picked good guys and tightly controlled. 

MATTHEWS:  Tightly controlled.  That‘s the question I‘m raising.  Were there disciplines in terms of killing people, for example?

HERSH:  You‘re asking the question I don‘t know the answer to.  They did operate prisons themselves.  And obviously, they got the first cut.  I have to tell you.  The second cut went to Guantanamo.  They got the good cut.

The idea was, I‘ll tell you what the Rummy idea was.  Rummy is an action guy.  You get a tip that somebody‘s in Yemen and you can‘t send Special Forces in there, because the American ambassador wants to know what you‘re doing.  The local CIC (ph) commander, American CIC (ph) wants to know what you‘re doing. 

MATTHEWS:  The commander in chief, yes. 

HERSH:  Let‘s just cut it out, he says.  Let‘s just go right in and grab the guy.  They use covert aircraft.  They have their own—the SAP can buy anything.  It‘s got a budget line.  Let‘s just go in and get it.  And get the guy and bring him back and interrogate him somewhere, you know, out of harm‘s way where the sun don‘t shine and do what we have to do. 

So I‘m told the program was effective and competent.  I didn‘t ask a lot of tough questions that you‘re asking me—What did you do to the prisoners—because the next step is, in the fall of, last fall when it was hitting the fan, as I say—and also, don‘t forget they know there‘s a political year coming, 2004 is coming. 

We‘re getting nothing out of the prison system.  These guys are brought in.  They‘re brought in to meld into the prison system.  And the game is two things: coercion, sexual intimidation.  Jack it up. 

MATTHEWS:  Let‘s talk about this.  It‘s—I know you‘re sort of deep in this story, but if step back from it a couple feet, when you see it‘s the same pattern that we saw with WMD.

The real hawks on the war, the Mideast hawks pushing the war in the Defense Department said we‘re not satisfied with what we‘re getting from DIA, the defense intelligence.  We‘re not satisfied with what we‘re getting from CIA.  We‘re going to get a new force up and dig up more information our own way.  Distill it our way.  Find our way of using it. 

It sounds like these guys were just as frustrated with the—with the torture techniques, the interrogation techniques.  And we‘ve got a tougher way.  We really want to win this war.  Is that what‘s going on here?

HERSH:  You have a bunch of guys inside the Pentagon, Feith, and we know those name.  Wolfowitz. 

MATTHEWS:  The real hawks, right. 

HERSH:  Steve Cambone, the new undersecretary. 

MATTHEWS:  Tell me about the head of intelligence.  Cambone was recently made—last year was made head of intelligence in the Defense Department.

HERSH:  Right.

MATTHEWS:  Hey had this operation under him?  Are you reporting that?

HERSH:  Eventually.  He eventually got that.  It was in the control of Doug Feith‘s office of policy. 

MATTHEWS:  But he‘s one of the real hawks.  He wants to fight this war and win it in the Middle East.

HERSH:  Oh, my, yes.

MATTHEWS:  Cambone.  Tell me about Cambone.  Who is he?  Where did he come from?

HERSH:  He came from—he‘s a Ph.D. in political science, very conservative like Wolfowitz.  Same sort of idea.  Very conservative.  Leo Straussian, if you want to go that way.  And he doesn‘t know very much about intel.  Everybody was very rattled by this guy.

Somebody high up in the CIA said to him—said to me about him, that if Rumsfeld says something whimsically, Cambone—Cambone does it 10 times as much. 

So he‘s out there.  And he‘s...

MATTHEWS:  Let me ask you about this thing.  The American people are basically voting this fall, and they want to decide what kind of policy they want. 

The real hawks in this war have basically said that you‘ve got to take it down, you‘ve got to beat the Iraqi government to change them to a democracy.  The real idealists like Paul Wolfowitz. 

And you talk to them and they say the same to you.  “I believe in transforming countries from tyrannies into democracies by force.”  So they believe they can change history, basically. 

They also have this view in your book, your article this week.  I thought it was interesting, a sort of a different philosophy about interrogation.  What is that?  And not only can you make the Arab world change by force of military arms, but you can get Arabs to buckle by using certain techniques against them. 

HERSH:  One of the academic books that I studied is by a guy named Matea (ph), that was an Israeli—born—lived in Israel for a little while and an anthropologist, cultural anthropologist taught at Princeton, et cetera. 

MATTHEWS:  Right.

HERSH:  He wrote a book in ‘73 that had a long chapter on it, 25 pages or so, on sex in the Arab world, making the point they‘re vulnerable on sex, that it‘s a taboo for them.  Expose them sexually, you can get them.

And let me give you the upside of it.  You want to get intelligence

about the Sunni insurgency.  You‘re not getting anything.  You send these

guys in.  You take photographs of them in the nude, which for an Arab man -

·         we talked on this program before...

MATTHEWS:  They can‘t even talk about it. 

HERSH:  They can‘t talk about it.  They can‘t deal with it.  It‘s all dirty.  It‘s dirty.  It‘s a taboo. 

You go to them and you say, “Look, Jack, or, you know, Ahmed, we‘re going to plaster these pictures all over the neighborhood about you unless you tell us what you know.  And if you don‘t know anything, go back home and find out something for us.”

I think that was the principle.  The idea was to try to and get people to recruit, set up the Mukhabarat.  It didn‘t work.  Within six weeks, the CIA, which had some people attached to the prison system to this unit, bails out.

MATTHEWS:  This isn‘t so far—Everybody says how the other culture is different than ours.  If some male that we knew, heterosexual male, was raped by another male, right, he wouldn‘t go around telling his wife and his friends and his brother-in-law. 

Isn‘t it—It‘s a parallel.  They‘re not going to tell anybody he was stripped naked and made to walk around like a dog with some woman pulling him on her leash.  Right?

HERSH:  I wouldn‘t think so. 

MATTHEWS:  I think it seems like it‘s pretty common sense, hell going on.  Anyway, we‘re going to come back and talk about Seymour Hersh, who‘s broken a story.  First My Lai, now this.

And later, the father and an attorney in one of the soldiers accused in this case, Sergeant Javal Davis.

Plus, the lowest job approval ratings of George W. Bush‘s presidency. 

That‘s coming up with Howard Fineman.

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK) 

MATTHEWS:  Coming up, much more with journalist Seymour Hersh.  And later, Sergeant Javal Davis awaits court-martial in the prison abuse scandal.  I‘ll talk to his father and his lawyer when HARDBALL returns.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Seymour Hersh with his big new development and his big new expose in “The New Yorker” magazine about what happened with regard to these prisoners over there. 

In fact, you report that there was a project coming from the very top that led to this kind of activity. 

HERSH:  Yes. 

MATTHEWS:  Let me ask about why, because everybody who fights has a reason.  Why did the people in the Defense Department believe it‘s in our interest to get this tough, this tough a crackdown in terms of prisoners?  What are they afraid of over there in Iraq?

HERSH:  Well, I think the insurgency just drove them crazy.  They didn‘t know anything about it.  They... 

MATTHEWS:  He told us.  Rumsfeld was on the show two weeks ago, and he was surprised there was an occupation, there was a negative aspect in it.  He believed in the cakewalk, apparently. 

HERSH:  They—In this article I quote from some internal studies that were done last—end of the year studies from inside the military for Abizaid. 

And the studies show that in the first three or four months after the

·         after the downfall of Baghdad, the stuff we had were the amateurs.  We had what they called spray and pray.  They went out with guns and shot. 

And the guys who really knew what was going on—we‘re paying these guys.  Saddam had released 280,000 people from prison.  So some of the guys in the Shiite, the Ba‘athist leaders of the insurgency would pay these guys to go out and expose themselves so they could get a read of how we operated. 

And then by the middle of summer, they had figured out how we responded to things, and they began to ratchet it up and crank it up.  And we ran into ambushes.  Remember in November, we had a chopper shot down, 16 killed?

MATTHEWS:  Sure.

HERSH:  And they also—this report makes clear, talking about the guy from the IGC getting whacked today.  They were inside the coalition.  They were inside the Green Zone. 

MATTHEWS:  The green—Let me ask you about—you‘re talking about -

·         you describe a picture where there are resistance facing American forces over there and coalition forces. 

It‘s almost like those Korean comic books, up there the North Koreans, they‘d run these guys over the top with no weapons.  Right?  Just so they get mowed down, because the guys behind them had the guns.  Was that sacrificial, the resistance?

HERSH:  In the beginning, $200 or $300 would buy you a guy that would go and spray a convoy and get whacked.  Remember in the beginning, we were -- They would come out at us, and we‘d kill them like crazy.  And so they get a picture...

MATTHEWS:  Do they know who the enemy is?  I mean, every time we‘re on the show, we‘re trying to figure out.  Is it the Ba‘athist resistance of the Saddam regime?  Is it al Qaeda that‘s come into the country just to look for trouble?  Who is it?

HERSH:  It‘s real now.  It‘s crossed—We‘ve now married the Sunnis and the Shiites.  Because the tribal system...

MATTHEWS:  The secularists and the Islamists. 

HERSH:  Well, the tribal society.  The tribes always had Sunni and Shiite together in them.  They were always together.  It wasn‘t—they weren‘t...

MATTHEWS:  They weren‘t in arms together?

HERSH:  They were together.  They were in the same tribe, same tribal group.  So we‘ve now driven them together militarily.  So now, you know, I don‘t know what to tell you except I see like lose/lose/lose.  Maybe there‘s a safety way out.  I don‘t know.

MATTHEWS:  When we all step back from these stories before they really come about us, like this one here with the abuse in the prisons.  If we had seen a headline that said “The Unite States will get tough with prisoners,” not many people would have done anything. 

If we had said, “We‘re going to try to gel more information out of these people we‘ve picked up in these raids,” we wouldn‘t have gotten that upset. 

Do you think the people at the top of the Pentagon know what they‘re saying when they say things like, “We‘re going to get tougher on these prisoners?  We‘re going to apply the GTMO methods.  We‘re going to bring in this guy Miller, Jeff Miller, the general, who‘s tough”? 

Do they really know—Are they just tough at the top like Rumsfeld?  Wolfowitz?  Feith?  Those guys at the very top, are they as tough as their policies?  Do they know how tough they‘re being out there in the field?

HERSH:  There‘s no evidence—I can just answer.  There‘s no evidence that Rumsfeld knew how bad, how a policy that had begun of some sexual intimidation for a purpose evolved into the mess we saw in the photographs the last three or four weeks. 

I will tell you this.  I have to repeat this.  In late October, early November, the CIA bails out.  The general counsel writes a memo saying, “Get out of this.  This is crazy land in Abu Ghraib and other prisons.” 

So they bail out.  They see it coming.

MATTHEWS:  The institution bail out.  In other words, get their outfits out of these prisons.  Interrogations.

HERSH:  Absolutely.  Out of the interrogation side of it. 

MATTHEWS:  Right.

HERSH:  And absolutely.  They knew that this was—this was...

MATTHEWS:  It was going to end with a big stink. 

HERSH:  Well, I don‘t know if they could guess that.  They just knew it wasn‘t going to go down well. 

MATTHEWS:  Right.

HERSH:  And so did Rummy know that they were going around with these girls making the pictures?  No, of course not.  Nobody in his right mind would have countenanced it.  But, you know, did he know that stuff was going down? Yes. 

MATTHEWS:  Well, those pictures were taken and they‘re still out there.  Anyway, thank you very much.  Once again, another My Lai, at least another level of expose.  Obviously, it‘s not that bad. 

Seymour Hersh, thank you for joining us from “New Yorker” magazine. 

For a link to Seymour Hersh‘s latest article in “The New Yorker,” go to Hardball.MSNBC.com. 

Up next, one of the accused soldiers, Sergeant Javal Davis, is scheduled to be arraigned on Wednesday of this week.  His father and his lawyer will be here to talk about his case, coming up in two days.

And later, President Bush‘s job approval hits a new low point, the lowest ever, 42 percent.  Howard Fineman and Tony Blankley are coming here.

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

This Wednesday, Specialist Jeremy Sivits will face the first court-martial in the Iraqi prison abuse scandal.  Three others will be arraigned the same day, including Sergeant Javal Davis, whose father and attorney join us tonight. 

Sergeant Davis is charged with conspiracy, dereliction of duty, maltreatment, making false statements and assault.  Joining me is Sergeant Davis‘ father, Jonathan Davis, and his attorney, Paul Bergrin.

Let me ask you, Mr. Davis, what do you make of these charges?

JONATHAN DAVIS, FATHER OF JAVAL DAVIS:  I think all the charges are false.  And my son is innocent. 

MATTHEWS:  What do you think they‘re being—Why is he being charged then?  What‘s going on?

DAVIS:  I think they‘re being scapegoated.  And those that are in command are basically trying to run from the truth and trying to put it on the little guy, as in the soldiers. 

MATTHEWS:  Did your son ever get word that Sergeant—General Janis Karpinski was being pushed out of the way and the people in charge were these other governmental agency types, these people that come into the prison system and tell them what to do, and that the regular command doesn‘t make any sense anymore?  Was your son ever told that?

DAVIS:  I don‘t have any comment about that.  No. 

MATTHEWS:  Let me to go Mr. Bergrin.  Is that the case?  That your client was in fact informed that he wasn‘t supposed to take order from the normal chain of command but these people coming in without insignia, whether they‘re contract, CIA or M.I., were in charge?

PAUL BERGRIN, JAVAL DAVIS‘ LAWYER:  That‘s definitely the point here that we‘ll try to make to the American people, inform the American people about. 

He was thrust into a situation, Sergeant Davis, where there was no actual command structure.  Other government agents—CIA, FBI, intelligence officials, military intelligence officers—all were almost allowed free reign of the prison without any kind of structural leadership, guidance, a guidelines, policy statements, nothing where these soldiers such as Sergeant Davis knew about the structure within the prison. 

MATTHEWS:  Let‘s take a look at this.  In exchange for his leniency, Specialist Jeremy Sivits is going to be tried on Wednesday.  He‘s expected to plead guilty at his court-martial this week. 

In a sworn statement, he said “Sergeant Davis ran across the room and lunged into the air and landed in the middle of the room where the detainees where.  I believe Davis ran across the room” he told them a couple times, two times, “and landed in the middle of a pile of detains.  A couple of detainees kind of made an ‘ah‘ sound as if this hurt them or caused them some type of pain when Davis would land on them.  After Davis had done this, Davis then stomped on either the fingers or toes of the detainees.  When he stomped the detainees, they were in pain, because the detainee would scream loudly.  I know this happened to at least one detainee; maybe it was a second one, as well.” 

Mr. Davis, did your son do anything like this?

DAVIS:  No, he didn‘t. 

MATTHEWS:  So he didn‘t commit—involve himself in any kind misconduct as far as you‘re concerned?

DAVIS:  As far as I‘m concerned, no. 

MATTHEWS:  Let me go to the attorney, Mr. Bergrin.  The question here is did he in fact do anything like that?

BERGRIN:  Absolutely not.  We intend to plead not guilty, and I suspect that once all the evidence comes through, once all the evidence is presented, an objective tribunal, which we hope we‘ll have, and justice is done, Sergeant Davis will be vindicated and acquitted of every single thing that he‘s been charged with. 

MATTHEWS:  If I were on the Defense Department side, here would be my strategy.  Get one guy like Sivits to basically blame all the misconduct on the enlisted men.  Clear the higher-ups and then try to work each one at a time to get the defendants to cop a plea so that nobody blamed the higher ups. 

Is that what they‘re up to, Mr. Bergrin?  The defense team for the Army?

BERGRIN:  You can see what‘s going on even with the Article 32 investigations. 

MATTHEWS:  That‘s in the preliminary, yes.

BERGRIN:  You can see there were 25 witnesses requested by defense counsel, trial defense counsel Scott—Captain Scott Duncan from the TDS service (ph). 

Not one witness was made available.  Most of the witnesses are redeployed and reassigned.  Many of those witnesses...

MATTHEWS:  Well, that‘s not going to sell. 

BERGRIN:  ... officers.

MATTHEWS:  You know that‘s not going to sell with the American people.  The American people, if you squeal once, sir, and you say I can‘t get witnesses higher up to show up in trial, do you think the American people would sit for this kind of frying of your candidate—of your client?

BERGRIN:  I‘m praying that the American people realize that Sergeant Javal Davis is a dedicated and devoted American soldier.  Served a tour in Bosnia, a tour in Egypt, has been in Iraq for 13 months. 

For four months, he was on convoy duty where he escorted—through the most dangerous terrains in Iraq convoys of civilians as well as military member.  While at the prison, he was forced to work 14- to 18-hours shifts, 13 months straight, without a day off. 

I‘m hoping that the American people realize that when intelligence officials entered the prison, and while they interrogated individuals, they would tell individuals such as Sergeant Davis, we need more information.  The more information you get, the more lives of American soldiers and civilian contractors will be saved. 

MATTHEWS:  OK.  OK.  I‘m going to come right back and talk to Mr.

Bergrin and Mr. Davis when we return. 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  This half-hour on HARDBALL, President Bush‘s job approval ratings reach their lowest level ever.  “Newsweek”‘s Howard Fineman and Tony Blankley of “The Washington Times” will be here.  Plus, “Saturday Night Live” plays HARDBALL. 

But, first, the latest headlines right now. 

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

We‘re back with Jonathan Davis, who is the father of Sergeant Javal Davis, one of the soldiers facing court-martial in the Iraqi abuse scandal, and Sergeant Davis‘ attorney, Mr. Paul Bergrin.

Mr. Bergrin, Charles Graner wants to have his trial held—he is one of the accused—and he wants to have his trial held right over there in Baghdad.  You don‘t.  Why not? 

BERGRIN:  Because we don‘t believe we‘ll get a fair trial in Baghdad.  The policy and the statements that have been made by commissioned officers have already judged Sergeant Davis guilty. 

Not only that, we believe it‘s improper command influence.  General Davis is the commander of the 3rd Corps commander which is going to be convening the court-martial and picking the actual court members.  They have stated emphatically and the commander in chief of this country, President Bush, has also stated that they want these individuals punished.  They‘ve already judged them guilty.  We don‘t believe we‘ll be getting justice and a fair trial there. 

MATTHEWS:  What about Mr. Sivits, the man who is apparently turning state‘s evidence here?  He is copping a plea, as we say in general parlance.  Is this guy telling the truth or not when he describes the conduct of your client? 

BERGRIN:  What the American people don‘t realize is that Sivits first denied any type of culpability and knowledge, not only after very intensive interrogation did he make statements, but he used words such as I believe, I think, it might have happened. 

Consequently, how can anybody trust and believe the word of Sivits, who is not only pleading down to a lesser charge, but also going before what they call a special court-martial, as compared to the more extreme general court-martial?

(CROSSTALK)

MATTHEWS:  Is he being rewarded—is he being rewarded—is he being rewarded for testifying against your client?

BERGRIN:  He absolutely is.  He was rewarded in the referral of charges to a special court-martial, instead of a general court-martial, which carries a much lesser punishment.  And also, he‘s been rewarded with the—probably the amount of time that he‘ll face later on for his culpability and his involvement in this case. 

MATTHEWS:  Let me go to Mr. Davis.

What was your son‘s job in that prison? 

DAVIS:  He was an M.P.  He looked after, watched the prisoners. 

MATTHEWS:  What role did he play in interrogation? 

DAVIS:  As far as my knowledge, none. 

MATTHEWS:  So he didn‘t have any role in trying to stack the prisoners up naked or intimidate them or drag them around or do anything to wake them up in the middle of the night to keep them awake or anything like—he had no role at all? 

DAVIS:  Not that I know of. 

MATTHEWS:  In trying to get the prisoners to talk?

DAVIS:  Not that I know of. 

MATTHEWS:  Did he ever tell you there‘s any abuse going on at that prison?  Did he ever call up or e-mail you or get in touch with you and say, look, there‘s something crazy going on over there?  Did he ever do that?

DAVIS:  Basically, what he did was, this is a place of lost souls.  There‘s a lot going on.  My stress level is out of the roof.  I work a lot of long hours.  There‘s rapid fire from mortar rounds all over at all times of the night.  And it‘s just very, very bad here.  The conditions are very bad. 

MATTHEWS:  What did he say about the Iraqi detainees?  Did he think they were all a bunch of bad guys or he thought they were getting screwed or what?  What was his view about them?  Did he ever offer it to you?

DAVIS:  Well, all I can say is, from what I see and from what—we can‘t fathom what goes on over there with these guys. 

MATTHEWS:  I agree.

DAVIS:  You deal with a hostile that will smoke you just as—if you are turn your back. 

MATTHEWS:  Right.  

DAVIS:  So the stress and the level of being under that type of condition must have been very great, very great on all of them. 

MATTHEWS:  Did he feel that sense that these guy who were the detainees were dangerous men? 

DAVIS:  Yes, they are. 

MATTHEWS:  Did he feel that his life was threatened by standing there as a guard? 

DAVIS:  Yes, he was. 

MATTHEWS:  Did he ever say anything to you about the extreme pressure he was put under when they began to question him?  I read that he came in off duty, a long duty, many hours long, and then they sat him down and made him answer questions for 20 hours straight. 

DAVIS:  He was very tired.  As I said before, they work very, very long hours.  Their stress levels are very, very high.  And he was very, very tired, very.

MATTHEWS:  Yes. 

Let me go back to Mr. Bergrin, the attorney in this case. 

Do you have confidence that you can call the witnesses?  As you mentioned before, during the Article 32, the preliminary hearing, you weren‘t able to bring in the higher-ups you wanted to bring in.  The whole world is watching now.  There‘s a big difference between that earlier trial, that preliminary, and what you‘re watching now.

People on this show, for example, I‘m watching, everybody is watching in the news business.  Don‘t you think that is going to give you a better chance to get those witnesses front and center during this trial? 

BERGRIN:  I believe we‘ll have that opportunity at the trial.  Whether these witnesses are made available to us is another story.  Don‘t forget, a lot of these witnesses are civilian contractors who have left the service of the civilian contractor.  So we‘ll have no jurisdiction over them at court-martial.  A lot of the military members have been redeployed, reassigned and sent back to a civilian sector jobs.  So if we could obtain jurisdiction over them and get them to the court-martial is another story.

MATTHEWS:  Well, can‘t you—Dan, can‘t you demand a delay until you get the witnesses there you need to make your defense? 

BERGRIN:  Well, that‘s what we‘re going to attempt to do.  We want justice.  And we‘ll do everything in our power to make sure that Sergeant Davis gets a fair and just trial.  That‘s all we‘re asking, from justice in the beginning and justice at the end. 

MATTHEWS:  OK, Mr. Bergrin, thanks for coming on HARDBALL. 

Jonathan Davis, good luck with your son. 

DAVIS:  Thank you. 

MATTHEWS:  Up next, as the prison abuse scandal unfolds, President Bush‘s job approval ratings at a new low.  “Newsweek”‘s Howard Fineman and Tony Blankley of “The Washington Times” will be here. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, President Bush‘s poll numbers continue their downward spiral.  “Newsweek”‘s Howard Fineman and Tony Blankley of “The Washington Times” will be here when HARDBALL returns.

(COMMERCIAL BREAK)

MATTHEWS:  With six months to go until the presidential election, the candidates were both in Kansas today talking about civil rights, of course.  But polls show the deadlocked electorate may be turning on a decision based on foreign policy. 

HARDBALL election correspondent David Shuster has the report. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, NBC ELECTION CORRESPONDENT (voice-over):  It was a day when the presidential candidates came the closest to actually crossing paths.  They spoke hours apart in Topeka, Kansas, on the 50th anniversary on the ruling that ended segregation. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Justice requires more than a place in a school.  Justice requires that every school teach every child in America. 

(APPLAUSE)

SHUSTER:  Earlier, John Kerry said there is more work to be done.  And he took a shot at the president‘s priorities. 

SEN. JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE:  You cannot promise No Child Left Behind, and then pursue policies that leave millions of children behind every single day. 

(CHEERING AND APPLAUSE) 

SHUSTER:  But on this day, the debate over education was eclipsed politically by these controversial images in Massachusetts.  The state became the first to marry gay and lesbian couples. 

UNIDENTIFIED FEMALE:  I now pronounce that you are married under the laws of Massachusetts.  You may seal this marriage with a kiss. 

SHUSTER:  John Kerry doesn‘t support same sex marriages, but he opposes amending the Constitution to ban them.  Republicans say his position is no position.  And polls show most Americans are closer to the president, with 50 percent favoring a constitutional ban and 44 percent opposed.  Political analysts once considered gay marriage a possibly decisive issue, but all domestic issues, according to the polls, are getting pushed aside by the growing concerns about Iraq. 

And the daily drumbeat of American casualties, combined with the prison abuse photos from Abu Ghraib, have produced the president‘s worst poll numbers since the war began.  His job approval rating on Iraq has slipped to 35 percent, down from 44 percent a month ago.  And the president‘s overall approval rating, according to “Newsweek,” stands at 42 percent, down seven points in a month.  And for the first time in his presidency, a majority of American, 52 percent, disapprove of the president‘s job performance. 

There is a silver lining for Republicans.  The numbers suggest most Americans are not ready to embrace John Kerry.  If the election were held today, the result would be a statistical dead heat.  But Kerry still has a crucial card up his sleeve.  He is closing in on picking a running mate.  And on Sunday, in front of a labor audience, Kerry spent the speculation into overdrive with praise for Congressman Gephardt. 

KERRY:  Ladies and gentlemen, will you thank again Dick Gephardt, great public servant, great person?

(CHEERING AND APPLAUSE) 

SHUSTER (on camera):  Democrats believe that when Kerry does make a selection, his campaign will get a boost.  But pollsters say the biggest factor right now is the president‘s own standing and whether the country wants four more years. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thank you, David, for that report. 

Joining us right now to talk about Bush‘s dismal showing in the polls are “Newsweek” senior correspondent Howard Fineman and editorial page editor for “The Washington Times,” Tony Blankley. 

Let‘s take a look at the latest polls that show President Bush‘s job approval rating at its lowest ever.  In both the Zogby poll, the “Newsweek” poll, he‘s down to 42 percent in both of those.  And the “TIME” magazine, he‘s down to 46.

MATTHEWS:  Tony, you first.

TONY BLANKLEY, EDITORIAL PAGE EDITOR, “THE WASHINGTON TIMES”:  Well, actually...

MATTHEWS:  Is this a way—look, he‘s put up with a lot of hell and he‘s still there, keep on ticking?

BLANKLEY:  Well, yes, but, look, if you didn‘t know the names and you just looked at the numbers, you would think you were looking at an incumbent who is likely to be losing reelection.  That‘s what you have to say based on history. 

MATTHEWS:  Because of history.

(CROSSTALK)

MATTHEWS:  History says if you‘re under 50

(CROSSTALK)

BLANKLEY:  But the past isn‘t necessarily prologue.

We look at the two elections in 1980 and 1992 for the examples.  We could look of course to 1948, where Truman was still behind a lot at this point.  But the only advantage I see for Bush, other than sort of the abstract numbers, which look bad, that I think that he is a better candidate than Carter was in ‘80 or than Bush Sr. was in ‘92.  I think Kerry is a far worse candidate than Reagan was in ‘80 or that Bill Clinton was in ‘92.  So, when you get that subjective zone, I see some potential upside for Bush. 

(CROSSTALK)

MATTHEWS:  In other words, because he feels better. 

(CROSSTALK)

MATTHEWS:  I think I can. 

BLANKLEY:  He is a better candidate. 

MATTHEWS:  He is.  He looks better in the field.

BLANKLEY:  He is a better candidate.  And Kerry is no Reagan and Kerry is no Clinton, as far as a campaigner. 

MATTHEWS:  You mean, when you go out to watch him with 10,000, 20,000 people out there, and you watch the president up there on the stand, he‘s doing good. 

BLANKLEY:  Yes.  Yes. 

MATTHEWS:  He‘s going to look good. 

(CROSSTALK) 

MATTHEWS:  I agree with that. 

BLANKLEY:  The thing is that Reagan from September to November of ‘80 and Clinton in the close were fabulous candidates.  I don‘t think Kerry is ever going to match that.  So that‘s sort of the silver lining. 

The other piece of this is, it sort of looks like the 1864 election. 

It really does look war

(CROSSTALK)

MATTHEWS:  I forget that one.

(LAUGHTER)

HOWARD FINEMAN, NBC CHIEF POLITICAL CORRESPONDENT:  We‘re really reaching for analogies. 

(LAUGHTER)

(CROSSTALK)

MATTHEWS:  I‘m just thinking, we have got lousy pictures from

(CROSSTALK)

MATTHEWS:  Who is the guy that took pictures back in 1864? 

FINEMAN:  The problem that the president has is not only his job approval number, but the sort of sense of where the country is going.  The other big number in our poll is, only 30 percent of the people feel that the country is going in the right direction:  Do you feel confident about where the country is headed?  That number also is down in Carter, George H.W. Bush totals, now, not the job approval number.

MATTHEWS:  But can I suggest something?

It looks to me, if you look at these numbers, if you look at the May numbers up there, if you could put them back up there, the May numbers are interesting, because it shows that with weeks and weeks of terrible news, everybody, right left and center, is embarrassed by these prison—the stacking guys up like whatever, naked and all that.

(CROSSTALK)

MATTHEWS:  Nobody likes those pictures.  Look at what‘s left, 46, 42, 44.

(CROSSTALK)

FINEMAN:  And that is why I‘m mentioning the other number here, because the other part is how people consider the state of the country at this point. 

MATTHEWS:  Right. 

FINEMAN:  Where they consider the war in Iraq going.  They don‘t want to let go of George W. Bush for the precise reason that Tony is mentioning.  Then they have to confront the dismal possibility that John F. Kerry might actually have to be president. 

(LAUGHTER)

(CROSSTALK)

FINEMAN:  So they don‘t want to let that go.

MATTHEWS:  Tony, are they ready to look Kerry in the eye and say, yes, I‘m going to make him president because I don‘t think Bush has done a good job? 

BLANKLEY:  I think they may get to the point where they‘re going to give him a good hard look sometime in September.  I don‘t know what way the public is going to go.  Nobody does.

MATTHEWS:  No.

BLANKLEY:  I would just point out, it‘s not only been a few weeks.  Other than—the last time Bush had a good week of news was when Saddam was arrested in, what, December.

MATTHEWS:  He got his tooth checked, his teeth checked, the hair checked. 

(CROSSTALK)

BLANKLEY:  It‘s been six months. 

(CROSSTALK)

MATTHEWS:  That‘s right. 

(CROSSTALK)

MATTHEWS:  If you have got a baseline of 40, 42, 46 percent, you‘re last redoubt, you‘re still holding 45 percent of the electorate with the worst news—suppose he has a good week. 

FINEMAN:  Oh I know is, I‘ve been listening.  I don‘t care one way or the other.  But I‘ve been listening, I‘ve been listening to the Bush-Cheney people tell me that the job approval number is the key, that it translates almost directly into what the final vote of the president is going to be. 

BLANKLEY:  You don‘t want to believe that sort of spin from political operatives.

FINEMAN:  Well, that‘s what they say.  That‘s what Matt Dowd on the record, their pollster, says every day.

(CROSSTALK)

MATTHEWS:  Just to clash with you, all the numbers going back to when we started paying attention to this stuff around World War II are actually clear as a bell.  If you go below 50 percent, you lose. 

BLANKLEY:  In the presidential election.

(CROSSTALK)

BLANKLEY:  It‘s not been that way in Senate

(CROSSTALK)

FINEMAN:  On the other side of it, Kerry has to be ready when that

moment comes.  He has to be ready

(CROSSTALK)

MATTHEWS:  Ready for prime time. 

FINEMAN:  He has to be ready for prime time.

(CROSSTALK)

FINEMAN:  And that moment is going to come.

BLANKLEY:  Let me emphasize that, as bad as the news has been, it could become a lot better.  The economy, for instance.

The public right now thinks the economy is as bad as it has ever been. 

MATTHEWS:  Right. 

BLANKLEY:  In fact, we know...

MATTHEWS:  There‘s a lag.

BLANKLEY:  That it is doing well.  If the lag is not too long delayed, that is help. 

(CROSSTALK)

MATTHEWS:  Guess who else the lag hurt?  The lag hurt George Bush Sr.  when he was president, because the economy was turning around and certainly by the fourth quarter, we had a tremendous 5.7 growth rate the fourth quarter.

(CROSSTALK)

FINEMAN:  The problem with that is that the war numbers are going in the other direction.  Ironically, Bush was going to run away from the economy towards the war.  Now he‘s running away from the war and towards  the economy. 

(CROSSTALK)

BLANKLEY:  ... running back between

(CROSSTALK)

MATTHEWS:  Before we go to break, does John Kerry need to build up about a 10-point lead before he picks a V.P. so it doesn‘t look like a desperation move?  Does he need to be significantly ahead of the president before he picks a running mate?

FINEMAN:  I think who he picks depends on where he is in those polls. 

If he‘s way ahead, he‘ll pick a safer choice. 

MATTHEWS:  Like Gephardt.

FINEMAN:  Like Gephardt.  If it‘s not, he may try to go for something more exciting.

MATTHEWS:  Any chance of the Republican side of a switch based upon that?  Suppose John Kerry does something interesting, picks an interesting running mate who really bolsters up his chances, is there any chance that this White House will say to Dick Cheney, I think you would rather be ambassador to Britain and take it easy the next four years?

BLANKLEY:  I think the chances are zero. 

MATTHEWS:  Zero?

BLANKLEY:  Yes.  I think the vice president would have to actually have a terrible physical condition. 

MATTHEWS:  Instead of just pretending to. 

(LAUGHTER)

(CROSSTALK)

MATTHEWS:  You laugh.

(CROSSTALK)

MATTHEWS:  You how things happen in politics. 

FINEMAN:  Mr. Vice President, time to go jogging, sir.

(CROSSTALK)

MATTHEWS:  The worst excuse for quitting politics, I want to spend

more time with my family.  And then you find out

(CROSSTALK)

FINEMAN:  But zero is a dangerous number to use in politics. 

MATTHEWS:  I‘ll tell you, if I hadn‘t heard from somebody pretty smart this weekend who knows a hell of a lot about Republican politics, I would agree with you.  But I still think this is on the table.

FINEMAN:  Tom Ridge thinks he may get the call.  I know that for sure. 

MATTHEWS:  Well, that‘s the same story I heard, damn it.  We‘re both hearing the same story. 

(LAUGHTER)

MATTHEWS:  Totally separate.

(CROSSTALK)

FINEMAN:  Ahmad Chalabi.

MATTHEWS:  No, You heard it from Pittsburgh.  I heard it from Philly. 

More from “Newsweek”‘s Howard Fineman and Tony Blankley.  We‘re both talking up, talking up Tom Ridge. 

Anyway, plus “Saturday Night Live” is coming back.  We‘re going to see some of that from this weekend.

You‘re watching HARDBALL on MSNBC.

ANNOUNCER:  Follow all the action in the battle for the White House.  Sign up for our free daily e-mail.  Just log on to our Web site, HARDBALL.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  Well, this will be fun.  We‘re back with “Newsweek”‘s Howard Fineman and Tony Blankley of “The Washington Times.”  He‘s the editorial page editor, Tony.

Yesterday on “Meet the Press,” Secretary of State Colin Powell‘s interview with Tim Russert was cut off by a zealous staffer.  That‘s a new one.  I never heard of a zealous staffer.  Let‘s take a look.

(BEGIN VIDEO CLIP, “MEET THE PRESS”)

TIM RUSSERT, HOST:  Finally, Mr. Secretary, in February of 2003, you placed your enormous personal credibility before the United Nations and laid out a case against Saddam Hussein citing...

(CROSSTALK)

UNIDENTIFIED FEMALE:  They can‘t use it.  They‘re editing it.

COLIN POWELL, SECRETARY OF STATE:  He was still asking me questions. 

Tim, I‘m sorry.  I lost you. 

RUSSERT:  I‘m right here, Mr. Secretary.  I would hope they would put you back on camera.  I don‘t know who did that. 

SECRETARY POWELL:  It‘s really...

Mr. RUSSERT:  I think that was one of your staff, Mr. Secretary.  I don‘t think that‘s appropriate. 

SECRETARY POWELL:  Emily, get out of the way.  Bring the camera back, please. 

I think we‘re back on, Tim.  Go ahead with your last question. 

(END VIDEO CLIP)

MATTHEWS:  Well, that‘s right up there with, fire when ready, Gridley.  “Get out of the way, Emily,” from the secretary of state.  What do you think of that, Howard? 

FINEMAN:  Well, it was an eloquent plant that they had there in the camera.  But the news that was made there...

MATTHEWS:  It‘s beautiful. 

FINEMAN:  The news that was made later on in that exchange was Colin Powell saying, look, the CIA, it looks like, was misled and I feel terrible that apparently there weren‘t any WMD. 

(CROSSTALK)

MATTHEWS:  Well, let‘s take a look.  That‘s a much bigger story than the camera move.  Here it is, Secretary of State Colin Powell said he was deeply concerned over the inaccurate information given to him for his U.N.  presentation on Iraq‘s WMDs in February of 2003.  And, remember, this was the main argument for us going to war to the world. 

Here it is. 

(BEGIN VIDEO CLIP, “MEET THE PRESS”)

POWELL:  But it turned out that the sourcing was inaccurate and wrong, and in some cases deliberately misleading, and for that I am disappointed and I regret it. 

(END VIDEO CLIP)

MATTHEWS:  Tony, he spent like—I mean, an enormous amount of time over at CIA headquarters trying to get the argument made correctly, and he‘s an honest man, I assume, Colin Powell, to make the case to the U.N.  based on the best available intel.  Now he‘s saying he doesn‘t believe in any of what the cause we made for war. 

BLANKLEY:  Well, and it‘s odd that it comes up just the week that now they‘ve announced that they have found one shell with sarin nerve gas.  They had another one a week or two ago with mustard gas.  Obviously, there‘s going to be found—there‘s now been found...

MATTHEWS:  But these are tactical weapons of war.  They‘re in any cache of weapons, aren‘t they? 

BLANKLEY:  Well, only in certain countries, like Iraq and Syria. 

(CROSSTALK)

BLANKLEY:  Obviously, my sense is that there are a lot of people in

the administration

(CROSSTALK)

BLANKLEY:  They know it‘s politically incorrect to say that we might still find them, but they still suspect they might still find them. 

MATTHEWS:  Still holding hope there, right?  Cause to war.

(CROSSTALK)

MATTHEWS:  Anyway, let‘s take a look at this weekend, a little fun here and games. 

Darrell Hammond who likes to do me, and better than me sometimes, on “Saturday Night Live,” he played HARDBALL this weekend.  Let‘s take a look. 

(BEGIN VIDEO CLIP, “SATURDAY NIGHT LIVE”)   

DARRELL HAMMOND, ACTOR:  Welcome back to HARDBALL.  I‘m Chris Matthews. 

Secretary of Defense Donald Rumsfeld and General Richard Myers made a surprise visit to Abu Ghraib prison in Iraq on Thursday with a message for U.S. troops.  That message, give me all your digital cameras now, you idiots. 

(LAUGHTER)

HAMMOND:  It begs the question, does the Bush administration have a bucket big enough to bail the water out of this sinking ship or what?

With us is White House Chief of Staff Andrew Card.   

UNIDENTIFIED ACTOR:  Great to be here, Chris. 

HAMMOND:  I didn‘t ask. 

(LAUGHTER)

HAMMOND:  Mr. Card, how is Mr. Bush going to get himself out of this mess? 

UNIDENTIFIED ACTOR:  Well, first of all, I wouldn‘t exactly call it a mess. 

HAMMOND:  You‘ve got to be kidding me.  Those photos makes the prison from “Oz” look like “Hogan‘s Heroes.”

(LAUGHTER)

UNIDENTIFIED ACTOR:  Chris, we like to think of this prison abuse scandal think as a temporary and almost invisible blemish on what is otherwise the most flawless presidency in American history. 

(LAUGHTER)

HAMMOND:  Wow.  People have said a lot of wrong things on this show, but that might be the wrongest. 

(LAUGHTER)

HAMMOND:  Joining us now to talk about how all this affects his campaign, Democratic presidential candidate John Kerry. 

(CHEERING AND APPLAUSE) 

UNIDENTIFIED ACTOR:  Thanks for having me, Chris. 

HAMMOND:  Nice work, Kerry, zero to boring in 1.8 seconds. 

(LAUGHTER)

UNIDENTIFIED ACTOR:  The point is, I believe I am the medicine this country needs.  Unfortunately, that medicine is Nyquil.  But think of it this way.  I‘m the sniffling, sneezing, aching, stuffy-head fever, so you can rest candidate. 

HAMMOND:  Good gravy, I‘ve seen more natural looking smiles on pumpkins. 

(LAUGHTER)

UNIDENTIFIED ACTOR:  Can I say something, Chris?  If you want to see a beautiful smile, look no further than George W. Bush. 

HAMMOND:  Hey, Card, when you had your brain washed, did you have it waxed, too? 

(END VIDEO CLIP)

MATTHEWS:  Zero to boring in two seconds, Howard? 

FINEMAN:  Well, I agree with Tony that John Kerry is not Ronald Reagan or Bill Clinton, but he‘s better than Mike Dukakis. 

(CROSSTALK)

MATTHEWS:  Oh, what a standard you‘ve set, what a low standard you‘ve set.

(LAUGHTER)

MATTHEWS:  Anyway, thank you, Howard Fineman and Tony Blankley. 

Join us again tomorrow night at 7:00 Eastern for more HARDBALL. 

Right now, it‘s time for the “COUNTDOWN” with Keith.

END   

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