updated 5/19/2004 10:33:25 AM ET 2004-05-19T14:33:25

Guests: Ellen Tauscher, Dana Rohrabacher, Michael Isikoff, C. Boyden Gray, Jim Robey, Joshua McCartney, Delmar Biller, Ariel Dorfman

CHRIS MATTHEWS, HOST:  On the eve of the first court-martial in the Iraqi prisoner abuse scandal, Defense Secretary Donald Rumsfeld faces his critics on Capitol Hill. 

New reports that the Bush White House was warned two years ago that tough new measures for dealing with terrorists could leave them vulnerable to charges of war crimes. 

And reaction from Cumberland, Maryland, the hometown of the accused soldiers‘ unit.

Let‘s play HARDBALL. 

Good evening.  I‘m Chris Matthews.  And this is a special edition of

HARDBALL. 

Specialist Jeremy Sivits will be court-martialed tomorrow in Baghdad. 

It‘s the first court-martial in the prison abuse scandal.  And tonight in Cumberland, Maryland, where the 372nd Military Police Company is based, his friends and family are holding vigils in his support tonight. 

And on Capitol Hill today, Defense Secretary Donald Rumsfeld wrapped up a closed-door meeting with the House Armed Services Committee, where he faced tough questions about the command and control of the Iraqi prison where the abuses took place. 

Congresswoman Ellen Tauscher of California was in that meeting with Secretary Rumsfeld.  She joins us, along with Congressman Dana Rohrabacher, also of California, who‘s on the House International Relations Committee. 

Congresswoman Tauscher, what did you learn today from the secretary of defense?

REP. ELLEN TAUSCHER (D), CALIFORNIA:  Nothing.  I didn‘t learn anything new.  I frankly earned more by watching MSNBC than I do in an hour meeting like this, which is very unfortunate. 

This is another of a pattern of closed-door meetings with lots of members that aren‘t on the Armed Services Committee put together by the Republican House leadership that really don‘t accomplish anything for us. 

There‘s not a lot of new information from the Pentagon, but there‘s an awful lot of information in the news today and I wish we had been able to ask the secretary directly in a session that was public and on the record about a lot of these issues. 

MATTHEWS:  Well, what did he say about General Pappas‘ admission that those orders about stripping and shackling the prisoners in Abu Ghraib were given by the military intelligence folks overseeing them. 

TAUSCHER:  He didn‘t talk about it, and frankly that‘s one of the issues that many of us wanted to ask about.  But that‘s the problem with these kinds of closed-door hearings with lots of members that aren‘t on the Armed Services Committee when it‘s not on the record and it‘s not in the sunlight where people can see it and hear it. 

MATTHEWS:  Let me go right now to Congressman Dana Rohrabacher.  By the way, congratulations, Dad, on your three new kids. 

REP. DANA ROHRABACHER ®, CALIFORNIA:  Thank you very much.

MATTHEWS:  Amazing development there.  But let‘s talk about world affairs here.  What did you think of the secretary‘s performance?  What did you learn today from the secretary of defense?

ROHRABACHER:  I thought he was terrific.  And the fact is that we saw a man in front of us who is in command of the details, who obviously had taken this issue very seriously. 

And unlike my colleague, I‘m very happy to have an opportunity to frankly discuss these issues behind the scenes, outside of public view, so that we can get down to information that may or may not be classified. 

He did a terrific job today, and he let us know and gave us a lot of confidence that what we‘re doing over there is not just hamper scamper, but we‘re taking the crisis seriously and we‘re getting through it and we‘re going on to do our job in Iraq. 

MATTHEWS:  Well, what do you make of the job we‘re doing with regard to the prisoners, especially with regard to “The New York Times” report today that the M.I., the military intelligence General Pappas admitted that he‘d given—Let me read it to you. 

“The American officer who was in charge of interrogations at Abu Ghraib prison was told—has told a senior Army investigator that intelligence officers sometimes instructed the military police to force Iraqi detainees to strip naked and to shackle them before questioning them.”

Let me ask you about this.  Doesn‘t this make the point that those underlings there, those enlisted men and women were, in fact, operating under the guidance of the military intelligence folks at the higher-ups?

ROHRABACHER:  Well, I don‘t know what—I cannot tell you what it indicates in terms of what the actual procedures were and who reported to who, but I can tell you that prisoners are stripped and shackled all over the world, including in the United States in our own prisons at times, in order, when there are prison uprisings whatever, and in volatile situations where people are being—you know, trying to be interrogated, when people are being killed right outside the prison, yes, stripping them and shackling them is not torture. 

We should quit beating ourselves up.  The fact is that the prisoners were humiliated and certainly, Don Rumsfeld takes very seriously that the Geneva Accords were not being followed.  And we‘re going to make sure that they were.

But simply shacking someone and stripping them to find out if they have weapons or to make sure that the interrogation goes right, as long as we‘re not beating them or torturing them, it‘s not a violation of the Geneva Accords. 

MATTHEWS:  Would that be your reaction...

TAUSCHER:  Sure it is. 

MATTHEWS:  Let me ask you both about the general rules of military conduct here.  Do you believe the Geneva Conventions are appropriate?  First, Congresswoman Tauscher, do you think we should observe the Geneva Accords or Conventions with regard to treatment of prisoners?

TAUSCHER:  Not only should we, Chris, because it‘s morally right, but that‘s, of course, how we want our own soldiers if they were captured to be treated. 

But I‘m deeply disappointed with what my colleague just said.  This idea that shackling and stripping is OK, it‘s not OK.  It is in direct contradiction of not only the Geneva Conventions, but it is in contradiction of what our military USCMJ is about. 

This was two rules that were broken.

ROHRABACHER:  We do that in our own prisons.  If prisoners are acting up, if they‘re a danger—and what we‘re talking about here is the instructions may have been if you have prisoners who are especially dangerous, you are permitted to strip them and shackle them.  We do it here in the United States. 

Let‘s quit beating ourselves up. 

TAUSCHER:  Dana...

ROHRABACHER:  Wait.  Any other prisoner in the Middle East, there‘s no other prison in the Middle East, where they treat those people as well as those prisoners who are being treated.  They torture them, they mutilate them everywhere else. 

TAUSCHER:  Look, find an excuse and stick to it.  The truth of the matter is this was in direct contravention of the Geneva Accords.  Even the secretary admits it.

ROHRABACHER:  You don‘t know that.  All you know is where...

TAUSCHER:  Of course, I know it I saw the pictures that you saw. 

ROHRABACHER:  No.  We‘re investigating the—the secretary made it very clear.  It appears that there have been some violations.  We are moving forward in a very systematic way.  We have started the investigation right away into this.  And people are being prosecuted early. 

He‘s doing his job.  The Democrats should, at the least say, let him determine if there have been violations of the Geneva Accords and then punish the people who are guilty. 

MATTHEWS:  Let me ask you, Congressman Rohrabacher, about a matter of

·         a matter of principle.  Do you think the United States should use techniques like fear, making a person feel they‘re going to be killed, make a person be intimidated and humiliated sexually? 

We saw these pictures of people being stacked up like hot dog packages, you know, six or seven naked together, shackled together?  Is that something you think is out of line or it‘s in line with the way you look at treatment of prisoners, Congress Rohrabacher?

ROHRABACHER:  Well, first of all, you don‘t try—you don‘t humiliate prisoners, and it‘s not a good—it‘s not a good policy to do so.  But let me note this. 

I remember just a couple months ago when we were throwing out of the service an officer—it was a black Marine officer, a colonel, who simply shot a gun off to side of the head of the prisoner in order to frighten him so he would tell where his ambush was going to be and save the lives of his troops. 

That‘s—and we‘re drumming that guy out of the service.  It shows you even then, two months ago, how we took this very seriously that we were not going torture prisoners. 

Now apparently, the situation got out of hand in that prison.  And we

·         we are coming back, investigating it, and Donald Rumsfeld is doing exactly the right thing.  He‘s in command.  That meeting I just had with him impressed the heck out of me. 

MATTHEWS:  OK.  Let me ask you about this other development on the front, on the armed services front.  First Congresswoman Tauscher.

When we had on the secretary of defense a while ago he—let‘s hear what he had to say.  This is about Ahmed Chalabi.  Here‘s what he said in our conversation two or three weeks ago.

(BEGIN VIDEO CLIP)

MATTHEWS:  If you had to make a quick reaction if I said the name Abu Chalabi, and I said reliable, unreliable, what would be your answer?

DONALD RUMSFELD, SECRETARY OF DEFENSE:  Look, I‘m not going to start criticizing the members of the Iraqi Governing Council. 

MATTHEWS:  But he‘s an employee of yours. 

RUMSFELD:  He‘s not an employee. 

MATTHEWS:  He gets $350,00 a month from the Defense Department.

RUMSFELD:  Come on.  Under the law passed by Congress, his organization, the INC, receives funds to do a variety of things.  The employee.  That‘s unbelievable, Chris.  You know better than that. 

MATTHEWS:  No.  I just think that people in the world who hear that he‘s making this kind of money from us would question his independence, wouldn‘t you?

(END VIDEO CLIP)

MATTHEWS:  Now the question—let me ask you, Congresswoman Tauscher, apparently this guy got sacked today.  He‘s not getting his $4.2 million a year from the U.S. government anymore.  What‘s going on?

According to the secretary of defense, it was Congress‘ decision to give this guy $340,000 a month. 

TAUSCHER:  Look, we have so many slush funds, Chris, inside the big slush fund called the supplemental that we passed last November that it‘s just petty cash. 

But you know, frankly, we overpaid Ahmed Chalabi for all the lies he told us.  But we are still going to pay, the American people are going to pay, for a very, very long time for being misled about weapons of mass destruction. 

MATTHEWS:  OK.  OK.

ROHRABACHER:  The Democrats‘ drum beat of defeat.  I will remember that. 

MATTHEWS:  Well, my drumbeat is congratulations, Dana Rohrabacher, on having three kids at once.  Amazing development.  That‘s proliferation like I‘ve never seen.

Congressman Dana Rohrabacher, Congresswoman Ellen Tauscher. 

Coming up, “Newsweek” on the other scandal.  We‘re back in a moment.

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, the president‘s top lawyer warned two years ago that the Bush administration could be accused of war crimes in the war on terror.  “Newsweek‘s” Michael Isikoff broke that story, and he‘ll be here when HARDBALL comes back.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to be HARDBALL. 

“Newsweek” magazine is reporting that White House counsel Alberto Gonzales warned President Bush two years ago that tough new measures of handling prisoners in the terror war could leave U.S. officials vulnerable to charges of war crimes. 

Gonzalez wrote, quote, “As you have said, the war against terrorism is a new kind of war.  The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against civilians.  In my judgment, this new paradigm renders obsolete Geneva‘s strict limitations of questioning of enemy prisoners and renders quaint some of its provisions.”

Michael Isikoff is an investigative reporter with “Newsweek,” and C.

Boyden Gray was White House counsel under the first President Bush.  Michael, explain the implications of this memo which basically explains that the Geneva Conventions are quaint with regard to terrorism. 

MICHAEL ISIKOFF, “NEWSWEEK”:  There was a fierce debate going on within the administration at the time as to whether the Geneva Conventions was going to apply to the war in Afghanistan at all. 

The Justice Department and Office of Legal Counsel had issued a legal opinion saying there was no reason that it should apply.  In fact it was preferable that it not.  No reason—that Afghanistan was a failed state and therefore didn‘t qualify as a country that could be subjected to—that would conform to the Geneva Conventions. 

There was never any debate that al Qaeda fighters should be given prisoner of war status during the war in Afghanistan.  The debate was over Taliban fighters who were picked up, were being picked up, in Afghanistan. 

The State Department was pretty strong that this would be a disaster for U.S. foreign policy if we just disowned the Geneva Conventions, that this is something that we had championed in international forum for years, for decades, and for the United States to—to just completely cast them aside would have all sorts of consequences for allies—getting cooperation from allies. 

Alberto Gonzales writes this memo, spelling out the arguments for President Bush why he should keep the Geneva Conventions out of the war in Afghanistan, and he uses some rather remarkable arguments.  One you quoted, this is a new war.  This is a new power.

MATTHEWS:  Right.

ISIKOFF:  We‘re going to have to do some new and unorthodox methods in this war. 

MATTHEWS:  Calling the Geneva Conventions quaint is an odd way—it‘s tough language, isn‘t it?

ISIKOFF:  He said—He said it was obsolete, some of its provisions.  The quaint was he did cite some examples, and they probably do sound a bit quaint, you know, commissary privileges and script, athletic uniforms.  That‘s not all that outrageous that he used that particular word.  I think the obsolete one is probably the more telling one there. 

MATTHEWS:  OK.  The bottom line is, coming out of Afghanistan, we decided through the counsel‘s office, the White House, that basically we weren‘t even going to think about treating terrorists as anything but terrorists.  They were noncombatants.

But even in the case of a guy who shows up fighting us with a rifle and a uniform, in the government of Afghanistan, we‘re going to say, you‘re not really a soldier because you‘re part of a failed state.  Is that what the argument was?

ISIKOFF:  That‘s exactly what it was.  Although they gave this rhetorical bow to the Geneva Convention at the end because Secretary of State Powell objected strongly the—at the end of the day, no detainees were going to be subject to Geneva Convention provisions. 

And that meant everything in Guantanamo would be immune from any international forum and as well as any domestic...

MATTHEWS:  The U.N. had a similar position on (UNINTELLIGIBLE) under President Bush the first, George Herbert Walker Bush.

Do you accept that kind of reading of the law, that the United States doesn‘t have to observe the Geneva Conventions with regard to neither terrorists nor people from, quote, “failed states?”

C. BOYDEN GRAY, FORMER BUSH 41 WHITE HOUSE LEGAL COUNSEL:  I think that‘s probably a fair reading.  What was the Taliban?  What is the Taliban?  It doesn‘t exist.  It‘s nothing really.  And in Afghanistan, I think they were all terrorists. 

The important point here is that, given the currency of this issue today, this memo does not apply—has never applied to Iraq. 

MATTHEWS:  OK.  Let me ask you.  Let me ask you, do you believe that there was a slop over in thinking from the ruling made by Alberto Gonzales, the president‘s lawyer, with regard to Afghanistan, and the thinking and the values that went into the war against Iraq?

ISIKOFF:  Not—Not technically, but if you read this opinion along with a lot of others that are being—that were being written at the time of the Justice Department Office of Legal Counsel about—about review of detainees and their status and the war on terrorism and also international torture conventions, you can see that it set a mindset that we are in this new era in which we can‘t be constrained by any international treaties.  We‘ve got to wing this on our own.

And you had another side saying, look, we‘re setting some dangerous precedent here. 

MATTHEWS:  What about this idea that you can set a different standard for people, Boyden, who are the most wanted, basically the al Qaeda bunch, the top bad guys?  Do we have a different standard for that in our history than the way we treated a regular soldier we pick up?

GRAY:  We‘re in a new situation now, Chris.  We never have been in a terrorist situation quite like this that I know of.  I suppose the Barbary pirates maybe, I don‘t know. 

But certainly in the modern period, al Qaeda is brand new.  Something brand new.  Unlawful combatants like that have not—we‘ve not had to face them before. 

MATTHEWS:  But we are—We faced resistance with regard to the Philippines and other countries we‘ve had an occupation role in, right?

GRAY:  Guerrilla warfare and what not.  But this—this has no country.  Al Qaeda has no country, has no—no state, no—no sponsorship.  There‘s no—They cannot deal with anybody. 

MATTHEWS:  Does anybody else in the world recognize the fact that we have the discretion to say, you‘ve got a uniform on, you‘re clean shaven and you look like a soldier and this other guy is wearing a rag-tag costume and he‘s not operating like a soldier.  We‘re not going to treat him like one.

Does anybody else in the world recognize our right to do that kind of deciding?

ISIKOFF:  No.  In fact, in an opinion written by John Hugh from the Office of Legal Counsel of the Justice Department, that is the basis for the Gonzalez memo. 

One of the questions that‘s posed to him that he deals with in there is whether or not the laws of war are going to apply to the United States soldiers in Afghanistan. 

Hugh says, in the memo, that—we can hold al Qaeda and Taliban fighters to the law of war and have them prosecuted as war criminals under the international law of war, but it won‘t apply to us. 

Why?  Because the president has ultimate discretion to wage war as commander-in-chief as he sees fit. 

This is a constitutional supremacy argument that some of the people that are writing the opinions held before September 11.  They were a federal society lawyer who had very strong views about the supremacy of the president and the commander-in-chief‘s war making powers and they were applying the views to the new situation that came in after September 11. 

GRAY:  I don‘t think so.  One of the things that they were dealing with is a statute, a U.S. statute, that they wanted to make sure wouldn‘t be applied in adverse circumstances.  If the government were to change or goodness knows what would happen to officials dealing with al Qaeda. 

MATTHEWS:  If the Kerry government came in, the Kerry administration with decide to prosecute people under the previous administration, this memo was meant to protect them, right?  So you guys are authorized to operate this way and to ignore the Geneva Convention so that you won‘t be blamed later by a Kerry administration. 

GRAY:  But it‘s important, again, to emphasize, this has nothing to do with Iraq.  This all had to do with the Taliban. 

MATTHEWS:  Let me ask you about Iraq.  What do you make, Michael, of this decision by military intelligence over there to tell Pappas—or actually Pappas admitting—he‘s head of the military administration that oversaw Abu Ghraib prison and telling the M.P.‘s there, the reservists strip the guys before you interview them.  They‘re already involved in some of this problem here, it seems.

ISIKOFF:  Well, exactly.  And it does stem from those sort of body of legal opinions that were being written. 

There‘s another one that we‘ve reported on relating to the international torture convention, which the Justice Department‘s Office of Legal Counsel put the most restrictive interpretation possible on international torture conventions, basically said that anything short of extreme physical pain would be—was OK. 

It gave a green light to the Pentagon, first to use these extra doctrinal techniques, interrogation techniques at Guantanamo Bay, you know, sleep deprivation and then he goes to Iraq and uses some of the same programs in Iraq. 

MATTHEWS:  Well, I would say the American people are shaken up.  The legal opinion we got here today, but I‘m waiting to hear how the American people shake out of this and how tough this country is about POW‘s. 

Anyway, thank you very much, Boyden Gray.

Thank you very much, Michael Isikoff of “Newsweek.” 

Up next, a report from Cumberland, Maryland, home of the military unit of all seven of the accused soldiers.  We‘ll find out what people out there in Cumberland are saying about the eve of the first court-martial of this abuse scandal. That‘s tomorrow.

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

All seven of the accused soldiers in the prison abuse scandal are from the 372nd military police company based in Cumberland, Maryland.  Tonight, the people of Maryland are holding a vigil in support of the accused soldiers. 

HARDBALL correspondent David Shuster is in Cumberland and has this report. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, MSNBC NEWS CORRESPONDENT (voice-over):  Chris, here in downtown Cumberland, Maryland, it‘s a show of solidarity with the military police unit.  You can see members of the Vietnam Veterans Color Guard. 

This is a town where patriotism runs deep.  Some 500 members of the Vietnam Veterans Association, a lot of them here, a lot of people here talk about the fact that George Washington garrisoned troops in this area.  Tonight, they‘re just showing solidarity and support for the entire unit. 

A lot of people in this area of Maryland, Pennsylvania, West Virginia, where many of these soldiers are from point out that you‘ve got more than 130 members of the 372nd M.P. Unit who have served in Iraq and that those facing court-martials starting tomorrow number only six or seven. 

But even here in Cumberland, there is some division, because you have Jeremy Sivits, the one who‘s going to enter a plea tomorrow, to cut a deal with military prosecutors.  And it was alleged that there was no organized orders for the M.P.‘s, that the M.P.‘s were essentially acting on their own and that it was their own fault. 

Still a lot of people in this town of Cumberland, Maryland, waiting for the facts to come out. 

Tonight it‘s a show of support.  It‘s a prayer vigil, hoping that justice will be done and that those responsible will be held responsible and accountable.

But a deep sense here, Chris, in Cumberland that in fact, this goes much higher than the six or seven soldiers.  A lot of people point out that these M.P.‘s were not trained to be guarding prisoners as they were in Iraq, that they were under tremendous stress and that therefore, it is not their fault that there was a lack of discipline and that there was a lack of control at Abu Ghraib. 

That‘s the story tonight, Chris, from Cumberland, Maryland.  Back to you. 

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster. 

Up next, friends of the accused soldiers speak about the Iraqi prisoner abuse scandal. 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  This half-hour on HARDBALL, on the eve of the first court-martial in the Iraqi prisoner abuse scandal, we‘ll get reaction from friends of the accused soldiers in Cumberland, Maryland.  Plus, is torture ever acceptable?  That discussion is coming up.

But, first, the latest headlines right now. 

(NEWS BREAK)

MATTHEWS:  Welcome back to this special edition of HARDBALL. 

On the eve of the first court-martial in Baghdad, MSNBC has featured on each of its shows a community which is involved in the Iraqi abuse scandal.  We‘re calling it “Court-Martial in Baghdad: Duty or Disgrace?”

HARDBALL begins this special feature tonight in a town that is home to the 372nd Military Police Company; 130 members of the company were sent to Iraq to liberate and protect the Iraqi people.  And now seven stand accused of prison atrocities.

Three of the accused, Sergeant Ivan “Chip” Frederick,” Specialist Charles Graner, and Sergeant Javal Davis, will be arraigned tomorrow.  And 24-year-old Specialist Jeremy Sivits is expected to plead guilty at his suspected court-martial in Baghdad tomorrow.  Specialist Sivits is accused of taking photos of the abused and is charged with maltreatment, conspiracy to maltreat and dereliction of duty. 

In his sworn statement, Specialist Sivits said that senior command was kept in the dark about the mistreatment of prisoners.  That‘s the big argument here.

James Robey hosts a talk show on the radio station in Cumberland, Maryland, WCBC.  And he‘s been talking to his callers about the 372nd Company ever since this story broke. 

Thank you very much, Jim Robey.  Thanks.

I talked to you today on your show.  Let me ask you to go over a couple of these things for HARDBALL tonight.  Is the mood—let me just ask you, yes or no, do they think the guys and the women from your community are guilty or they were simply taking orders? 

JIM ROBEY, RADIO TALK SHOW HOST:  Well, I think, generally, the people in our community believe that they were taking orders.  There are some people who have expressed concern and irritation that these members would take part in these acts, but generally people have been very defensive of the 372nd and feel that they were acting if not under orders, at least that they were acting in a situation that permitted them to do what they did. 

MATTHEWS:  What‘s that mean? 

ROBEY:  Well, in war, it‘s a totally different situation.  It‘s nothing like most of us can identify with. 

They‘re cut off from families to a great extent.  They‘re under all kinds of pressure.  And the feeling is that, if nothing else, they are permitted or maybe encouraged to carry out acts that some people back here in the states might consider to be a little extreme. 

MATTHEWS:  So I guess the question—there‘s three possibilities.  One, they were told to do it and they did what they were told.  And the other possibility is, they did what they were told, but they shouldn‘t have done it.

And the third possibility is, they didn‘t do it.  So it sounds like we‘re getting somewhere between they did it and they were carrying out orders, correctly or incorrectly.  Does anybody deny that these pictures are accurate? 

ROBEY:  Well, we have the pictures. 

Nobody I—I haven‘t heard anybody say that they‘re questioning the actual pictures and the accuracy of the pictures.  I have had some callers say, well, this wasn‘t that much more extreme than a college prank, at least at the one level. 

(CROSSTALK)

MATTHEWS:  What the hell college are they—would you tell me about the college they‘re talking about?  I‘m just kidding.  But, Jesus, that‘s a hell of a college hazing ceremony.  That‘s not like drinking two quarts of beer, is it, exactly?

Anyway, let me ask you this one.  Today, there was a big development and it may be exculpatory, as they like to say in court, about the guys involved, the people involved from your community.  That is that it has now come out that General Pappas, who was head of military intelligence, who was overseeing, who had morphed into the position of control of Abu Ghraib prison, he apparently—well, he‘s done it on the record that, according to “The New York Times” today—you‘ve probably seen it—he‘s come and said, look, I told those guards, those reservists from the 372nd, I told them to strip these guys.  I told them to shackle them. 

Well, hell, that‘s two-thirds of the damage we‘re seeing in the pictures, right? 

ROBEY:  Well, yes, if that‘s true and if nobody contests that, that sounds like it solves a great deal of the whole case. 

MATTHEWS:  What is the reaction to Mr.—to Specialist Sivits, who is apparently copping a plea here and pointing the finger at his community members from the 372nd and from Cumberland? 

ROBEY:  A number of people—well, generally, the community is very much in support of him.  And they feel that the fact that he would have stepped out and would have tipped people off, I think people are generally very much in support. 

In fact, I had someone just the other day say that they hope that when he comes back he‘s welcomed as a hero.  Other people of course are concerned and those in his family, I believe, are concerned for his safety. 

(CROSSTALK)

MATTHEWS:  Let‘s go to Joshua McCartney. 

Mr. McCartney, thank you for joining us right now on HARDBALL.  You served with the 372nd Company and you are friends with many of the accused.  What is your feeling watching this whole thing? 

JOSHUA MCCARTNEY, FORMER MEMBER OF THE 372ND COMPANY:  My feelings on this are kind of mixed emotions.  You can‘t really come out with a certain decision on how you feel until you see the evidence displayed in front of you.

And with them—with the government withholding most of the evidence and not having the community being able to see it, it leads to you believe that things are worse off than what they really are. 

MATTHEWS:  Do you think that as a guy that served in that outfit that you could imagine getting in a situation where you would involve yourself in what looks like a sporting adventure, a fun thing, an abuse of power like that where you are having fun with the prisoners?  Or does it look to you more like a duty they were on? 

MCCARTNEY:  In a way to me it looks like it was both, the duty that

they were on.  Like you had spoken with earlier, General Pappas saying that

he gave the orders to strip and shackle them, yes, that was an order that

they had to follow, but it could have gotten out of hand, and, yes, it very

well may

(CROSSTALK)

MATTHEWS:  But let me ask you this.  I guess I‘m trying to use my imagination, but let me use yours.  You get guys involved with stripping these guys together, involving in getting them to manipulate themselves sexually, this really gross stuff.  Can you imagine your fellow outfit members doing that kind of stuff on their own? 

MCCARTNEY:  Chris, it‘s hard to put the picture in my head, but I know a lot of these people that are accused of this and I just can‘t see it.  I just can‘t see it. 

MATTHEWS:  OK, let me go to Mayor Delmar right now.

Delmar, Mayor Biller, thank you very much.  You are a friend of the Sivits family.  You are also mayor of Hyndman, Pennsylvania.

Mr. Mayor, let me ask you about Jeremy Sivits.  Why is he copping a plea? 

DELMAR BILLER, MAYOR OF HYNDMAN, PENNSYLVANIA:  Well, to my way of thinking, he don‘t want to be court-martialed, but to me, Jeremy is between a rock and a hard spot.  To me, the orders was handed down to Jeremy. 

(CROSSTALK)

MATTHEWS:  No, no, no, that‘s what he is saying he was not.  Mr.  Sivits, Specialist Sivits is specifically saying that no orders came above for any of that abuse.  Nothing in those pictures came about as a result of orders from above.  That‘s his deal here for him to say that. 

BILLER:  Well, it‘s hard for me to believe. 

If Jeremy Sivits done this on his own, then Jeremy Sivits is not the boy that he was when he left Hyndman to go in the service. 

MATTHEWS:  Yes, well, let me read you something that is a sworn statement.  This is on the record from Specialist Jeremy Sivits, what you‘re a friend with—“Our command would have slammed us.  They believe in doing the right thing.  If they saw what was going on here, there would have been hell to pay.” 

So he‘s denying any responsibility from the higher-ups.  What do you make of that, Mr. Mayor? 

BILLER:  Well, I don‘t know what to say to that.  This is the first time that I heard that.  I knew—I knew that the rumor was that he was going to plead guilty, but nobody wants to be court-martialed. 

MATTHEWS:  I agree with that.  So you think he‘s doing this to save his skin? 

BILLER:  Well, I—I think he is in a way, but still, you know, when

·         to me, these orders was handed down.  What if they would have rejected the orders when they was handed down?  They would have been court-martialed then, right? 

MATTHEWS:  No. 

(CROSSTALK)

MATTHEWS:  Well, Mr. Mayor, your friend says that he never got any such orders, that the guys above are all clean.  It‘s the people below him and his fellow enlisted men who are the bad guys.  That‘s the way he‘s selling this thing to get off this rap. 

BILLER:  Well, I know, but it‘s really hard for me to think that.  I can‘t believe that.

But if he did, why , if he done this on his own, then he‘s not the boy now that he was when he left Hyndman to go in the service. 

MATTHEWS:  Well, you are a very loyal fellow. 

We‘ll come right back and talk about this community that‘s going through this trouble right now, trying to separate what else happened here, the good, the bad, and the ugly, whatever happened here, on the eve of the first court-martial in the Iraqi prisoner abuse scandal.  That‘s coming up tomorrow.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, more from Cumberland, Maryland, with the friends of Specialist Jeremy Sivits, scheduled for court-martial tomorrow in Baghdad.

HARDBALL back in a minute.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Mayor Delmar Biller, Joshua McCartney, formerly of the 372nd Police Company, and Cumberland radio talk show host James Robey. 

Let me go right now to Josh.

Josh, do you know Charles Graner and Frederick Chip—or, rather, Sergeant Chip Frederick? 

MCCARTNEY:  I know Sergeant Chip Frederick, but I don‘t believe I‘ve ever met Charles Graner. 

MATTHEWS:  Well, talk about Chip, Sergeant Frederick. 

Sergeant Frederick says that Jeremy Sivits, who is going on trial tomorrow in what looks like a plea copping, is guilty of lying.  He says that he‘s lying to save himself and blaming everything on his fellow enlisted men. 

MCCARTNEY:  That could very well possibly be. 

MATTHEWS:  Do you have sense that—you know the main arguments being made here by the government here.  They seem to be, everything is in pretty good shape over there.  We just got a few bad apples here from Cumberland, Maryland.  We got seven people out here who didn‘t know what they were doing and abused their authority and otherwise this operation was pretty clean.  What do you make of that assessment? 

MCCARTNEY:  That‘s a pretty good assessment, Chris.

But then again, you have to look at the bigger picture here.  The 372nd is not just basically composed of people from the Cumberland area.  They come from a wide range of places. 

MATTHEWS:  Yes. 

MCCARTNEY:  I myself come from Hagerstown, which is about 77, 78 miles away .  And I know people as far as Virginia and even southern Virginia that‘s up here because of the reputation that the unit has established for itself. 

MATTHEWS:  Well, what about its reputation now? 

MCCARTNEY:  I don‘t think the reputation of the unit is hurt.  I think what it is, that there‘s maybe a few choice individuals just maybe made the wrong decisions or did not follow the orders directly, or there could have been a miscommunication in that. 

We have a lot of very—when I was there, there was a lot of good people from the unit.  There‘s troopers from West Virginia and troopers from Maryland, deputy sheriffs, sheriffs from Virginia.  So there‘s a lot of good people that‘s come out of that unit.  And it—it‘s really good for the community to have them up here. 

MATTHEWS:  Well, you know that the government‘s case is that those fellows, the seven people from that area, from that unit, rather, the 372nd, are the bad guys and the system‘s OK. 

The problem with that argument is that today the top guy from the military intelligence who oversaw Abu Ghraib prison said that he instructed the M.P.s from 372nd to strip the prisoners, to shackle them.  Many of the pictures that disgusted people watching all these pictures the last couple weeks were basically meeting up to the standards set by the military.  This is what they wanted done.  They wanted these guys stripped and shackled.  Where is the line for you? 

Do you think that this—that most of the responsibility goes to the higher-ups or most of it goes to people at the bottom? 

MCCARTNEY:  Just like the old saying, Chris, water rolls downhill. 

And it has to start somewhere, so it started at the top. 

MATTHEWS:  Yes.  So you think it‘s inspired by the people higher up who are trying to get the intelligence out of those prisoners? 

MCCARTNEY:  Yes, sir.  People—we have a short memory.  They do those things for a reason over there.  What about the twin towers? 

If we could have got more information about that had there been—had this war been earlier, something else might have come up about that and we could have prevented a whole lot of casualties. 

MATTHEWS:  Jim Robey, is that a general view, that we have to be tough with prisoners, period, because we have to get the intelligence out of them because they‘re terrorists? 

ROBEY:  Well, a lot of people are certainly saying it, not only in this community, but I do hear people around the country saying just that, that this, again, this kind of thing to an extent will happen in prisons here in this country.  But certainly in a situation of war, if we‘re trying to get information that could prevent a bombing or an attack or an ambush, many people say, so what?

MATTHEWS:  Yes, I know.  I think a lot of people think like that. 

Anyway, James Robey, Joshua McCartney, and Mayor Delmar Biller.

We‘re going to come back.  I want to talk about questions—I want to thank you all for coming on today.

We‘ll have reaction from the first court-martial in the prison abuse scandal with Senator Lindsey Graham tomorrow Guy Womack, who is a lawyer for the accused soldier Charles Graner. 

Up next, is torture ever acceptable?  I‘ll ask human rights activist Ariel Dorfman when HARDBALL returns.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

The officer in charge of interrogations at Abu Ghraib prison says that intelligence officers sometimes instructed military police to force Iraqis to strip and shackled them before questioning.  So were the military police, the reservists, basically carrying out the orders of the higher-ups in the military intelligence.

I‘m joined by playwright, poet, and novelist Ariel Dorfman.  He‘s a professor at Duke University and author of “Desert Memories.”  Mr. Dorfman was forced to leave Chile after the government there was toppled by a coup in 1973.  And many of his friends were killed and tortured. 

Mr. Dorfman, thanks for coming on the program. 

We‘re not used to talking about in this country about torture as part of our political world or our military experience.  Where do you place, given your history—where do you place these stories about abuse of prisoners in Iraq? 

ARIEL DORFMAN, HUMAN RIGHTS ADVOCATE:  Well, the first thing that we need to understand is the fact that precisely because this country does not have experience about this is, you should look very carefully at the stories that are from all over the world about people who have been tortured and what it does to them, how it destroys them. 

I can remember clearly the first torture victims that I saw after the Pinochet regime, people shivering in the sun because they received such electric shocks, people who basically—whose eyes were destroyed.  They could never really look at you directly in the face.  They were shamed forever.  There are terrible consequences to what torture does and we have to understand what that means. 

I think the context we have to understand is that there is something called the war on terror which supposedly is going to go on forever because terrorists are going to continue going on and on and on trying to hurt this country in different ways and hurt the rest of the world as well.  And the question we have to ask ourselves is, are we willing to abandon the covenants, the agreements, the ways in which humanity after thousands of years of meditation on these abuses has found to put a stop to them, to agree how we do not abuse others? 

Are we willing to put all of that aside because we‘re so fearful of

the terror that is imposed upon us, we are going to create terror for

others?  That‘s a really very fundamental question and it

(CROSSTALK)

DORFMAN:  ... the soul of America, really. 

MATTHEWS:  And let me ask you a question that gets to the soul.

When we went to war with Iraq, we knew we would occupy.  We knew we

would face a resistance.  We knew that the only way to crack a resistance -

·         and this is not deep thinking here.  I‘m doing it.  Most people could do it.  You‘d have to crack the resistance once you went in there as an occupying force.  Is there any way to be an occupier and not use torture? 

DORFMAN:  Well, to begin with, it generally is—it comes accompanied by torture.  In other words, history says that when you occupy a country against the will of many of its people, you will end up having this sort of problem. 

You didn‘t have that problem in the case of Germany.  You didn‘t have it in the Second World War, Japan in the Second World War, because what you did there is, it was the military defeat of a country that was then the whole country was functioning.  It was working in a certain way.  So that didn‘t happen there.

But, in this case, I think you would suppose that it was going to happen.  And it was going to happen because, among other things, you already had the Guantanamo system in place where you supposed that those people were unlawful combatants, but you also supposed that those people weren‘t human.  They have human rights.  We don‘t speak about Iraqi rights.  We don‘t speak about American rights.  We speak about human rights, the rights of every human being because of the reason that they were born on this planet.  Man, woman, whoever they are, they have the right not to be tortured.

And that‘s a right which is very important for Americans.  In your Eighth Amendment, you have a prohibition about cruel and unusual punishment.  Nobody is going to tell me that what was happening in Iraq was not cruel and unusual punishment, not only towards Iraqis...

MATTHEWS:  It‘s definitely unusual. 

But let me ask you a tough question.  And I know people out there are watching, and not just the tough guys are thinking this right now.  They‘re saying, wait a minute.  Suppose we had gotten Moussaoui, Zacarias Moussaoui, who many people believe is the 20th hijacker who was trying to get flying lessons out in Minnesota and we‘d gotten to him a couple of weeks before 9/11 and they had squeezed him in the worst way to find out what was up?

Would that have—could that have prevented 9/11?  And, if it could, would it have been worth the cruelty toward that one individual to save 3,000 lives and to save us from everything that has happened since? 

DORFMAN:  I know it‘s a hard thing to say, but I think no.  I think you‘re not supposed to do those things.  There‘s a reason why. 

I insist on this.  Humanity has taken thousands of years to reach these agreements.  It means that Americans and Iraqis and the terrorists as well have certain human rights, even if they don‘t respect our rights, even those terrorists, who don‘t respect our rights.  It is fundamental that that rule of law, of international law, be respected. 

(CROSSTALK)

MATTHEWS:  How do you fight terrorism if you‘re able to capture people?  Because you‘ve got a good police force, but, once you capture them, say, the sleeper cells in this country, you do apprehend people and you do know they‘re smart.  They may have advanced degrees.  They‘re part of an operation, part of a conspiracy.  And you know they know what‘s up and you just let—you let them go sit in a cell and give them three squares a day and let them watch television and lift barbells while we know that the conspiracy is under way?  We let them get away with that? 

DORFMAN:  I don‘t think that that is exactly the case of what is happening.  In other words, I don‘t think they‘re lifting barbells or watching television. 

There are police methods that are approved that have international sanctions behind them that can be used to do that.  But I think that a society that, in order to stop terror from being inflicted upon it, will terrorize others, will take somebody who is literally defenseless in a cell, and will apply electricity, will rape that person, will humiliate that person, will do all of those things to that person begins to stoop to the level of that person, instead of saying, these are our standards. 

That‘s what we‘re fighting for.  We‘re fighting for a world where nobody is subjected to those things, not in the prisons of Iraq, but not in the prisons of the United States either. 

(CROSSTALK)

MATTHEWS:  Very much.  I‘m against cruelty to animals because I don‘t like what it does to people.  It brutalizes them and makes them bad people.  And the same with other people, obviously.

But let me ask you, what‘s this doing when you see this apparent perhaps misbehavior by these guards in prison over there, do you think that‘s a result of what they were facing, that they became worse because of what they were surrounded by in terms of their own situation there? 

DORFMAN:  No, I think that—of course, the situation does influence them, but I think they were more—basically, the system was encouraging them.  In other words, they knew that this was what they had to do.  They were being told either in direct terms or in uncertain terms, get information out of those people. 

Bombs are going out.  Terrible things are happening. 

MATTHEWS:  That is something—Ariel, Mr. Dorfman, that‘s what we‘re going to have to find out in these trials.  That is the great question of the day.  Were they led to do this?  Were they guided to misbehave?  Or were they simply out there on their own?

And, by the way, I do trust our court system.  If they don‘t try to buy these people off, I think we‘ll get justice. 

Anyway, thank you very much.  It‘s an honor to have you on, by the way. 

DORFMAN:  Thank you so much.

MATTHEWS:  You‘re a great man.  And thank you for coming on this program. 

DORFMAN:  Thank you so much for having me.

MATTHEWS:  Join us again tomorrow night at 7:00 Eastern for more HARDBALL, as we get reaction to the court-martial of Specialist Jeremy Sivits in the prison abuse scandal, the first case coming up tomorrow.

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

END   

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